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1 Persons, rights and roles

1 Persons, rights and roles

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148 THE MEASURE OF LAW



extreme to God would be a being who had duties and no rights. This being, Kant

says (ibid.), would be a slave or a serf. People would stand toward this being as a

god, able to make rightful claims on it but not subject to any rightful claims by

it. Kant declared that there were no such beings, but this has not prevented

people treating some of their fellow humans as though they were beings without

rights.

To be clear about this we need to distinguish a servant from a slave. People

render services to one another individually (‘in the service industries’) or

collectively (‘public service’), and we would obviously live poorer lives if we

never did anything of this sort for one another. Having our liberty and freedom

of choice constrained by, for example, terms of employment or military

discipline is a form of servitude that we find, if not wholly convenient, at least

worth the benefits that arise from accepting it. ‘Servant’ (public, domestic) is an

occupational category; ‘slave’ is (among other things) a legal condition, that of

being without certain important rights— in the extreme case, as Kant put it,

having no rights, only duties. Slaves have been employed as both public and

domestic servants as well as laborers. Moses Finley writes of ‘slave societies as

distinct from societies in which there were slaves.’ In the former, slaves are an

important source of productive labor (in mines and factories, on plantations).

There have been many of the latter, relatively few of the former: Finley identifies

ancient Greece, ancient Rome, and the US South, the Caribbean and Brazil in

modern times as slave societies (1980:79).

Some slaves in ancient Greece and Rome performed in highly responsible and

by no means arduous roles, but the good fortune of some should not obscure the

depravity of the legal condition. Finley identifies three important components of

the slave’s condition: ‘the slave’s property status, the totality of the power over

him, and his kinlessness.’ As property, slaves had the status of (marketable)

commodities with no control over their own labor, their bodies or their persons.

Being kinless meant they could be sold and separated from any spouse or

children they might have been allowed to have and thus had no stable kinship

identity or network of kin support. The power over their bodies included sexual

exploitation by their masters (ibid.: 96) and being subject to corporal

punishment. As a rule, corporal punishment in antiquity was restricted to slaves

(93). In Rome, slaves were required by law to give testimony under torture; the

worthlessness of testimony given under torture was beside the point:

If a slave is a property with a soul, a non-person and yet indubitably a

biological human being, institutional procedures are to be expected that

will degrade and undermine his humanity and so distinguish him from

human beings who are not property. Corporal punishment and torture

constitute one such procedure.

(ibid.: 95)



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Methods that would now be labeled ‘state terrorism’ included the Roman

‘ancestral custom’ that if a slave murdered his master, all the slaves ‘under the

same roof,’ including women and children, were put to death as punishment. In a

case in 61 CE, this happened to more than four hundred in the household of a

murdered prefect, Pedanius Secundus (102–3).

Being unable to act in any public capacity except through their masters, slaves

had in effect no public personality, and the control exercised over their daily

lives allowed them only a very restricted private personality. The notion of

personality has come to be central to ethics as a systematic study, and it is

important to understand the sense of the term that is involved and useful to know

something about its origin. Kant defines ‘person’ as ‘a subject whose actions can

be imputed to him’ (1797:223) and ‘civil personality’ as the ‘attribute of not

needing to be represented by another where rights are concerned’ (314). Where

women must be represented in legal matters (in court, in property transactions,

etc.) by their husbands or some other male relative, they lack civil personality

(ibid.). The idea of a source of action was once the main sense of the term

‘person,’ which derives from Latin persona, a mask worn in a drama identifying

a character and hence the source of the actions performed. Compare Hobbes: ‘a

person is he to whom the words and actions of men are attributed’ (1658:83,

italics in original). Kant defines the now more common psychological notion as

‘merely the ability to be conscious of one’s identity in different conditions of

one’s existence’ (1797:223).

We assume that the number of persons involved in some affair can be counted

by counting heads. But the idea that a group of people should receive

punishment for acts done by one or a few members of the group (examples of

which have appeared above and in Section 6.4) has the effect of treating the

group as the agent—in effect one person with many heads. At some points in

history this idea may well have been taken quite literally (see the quotation from

Grönbech in Section 6.4), but the idea may also have functioned as a useful

fiction, as in the case of the slaughter mentioned above in the household of

Pedanius Secundus. Another way of denying the personality of the individuals of

a class is to treat them as simply parts of a larger whole.

However, in the case of Rome this was not a fiction devised solely for the

purpose of oppressing the slave class. The Roman household was literally an

extension of the legal personality of the male head of the household. The Roman

paterfamilias had the legal power of life and death over the members of his

household: that is, he could kill his slaves or children without becoming liable to

prosecution for murder. By late in the republican period a father who exercised

this power over his children would have come into conflict with prevailing

Roman concrete morality and been subject to severe condemnation by his peers

(Dihle 1982:139); any similar feeling about his treatment of his slaves, however,

would be nowhere near as severe.

No doubt transactions within a household had to take account of the

independent agency of its members, but outside a household only its head was an



150 THE MEASURE OF LAW



independent agent (person). A grown man could not validly enter into contracts

so long as his father was alive and he fell under his father’s manus (hand). This

proved inconvenient for fathers and sons whose joint business affairs required

that the son act as an independent legal entity, but instead of changing this

customary law by new legislation, Romans adapted to this inconvenience by

manipulating a different part of the institution. Fathers had always had the power

to sell their children into slavery. If the son’s new master freed him, he fell back

under the manus of his father again, but if he were sold three times by his father

and freed each time, he became a legal person in his own right. So father and son

called upon a family friend to participate in a formal (publicly declared)

ceremony in which the friend bought the son as a slave and freed him three times

(ibid.: 139–40).

To us, treating individuals as part of larger wholes in these ways denies them

rights, and indeed it does. Instead of recognizing individual human beings by the

rights they can claim, individuals will be recognized by the roles they are

assigned—male or female, husband or wife, father or mother, parent or child,

noble or common, free or slave, etc. Roles are defined by what is expected of an

individual, what obligations that individual is under, what duties that individual

has to perform. An individual in such a society is much more a locus of

responsibility than a source of claims, because roles are far more socially relevant

than anything that depends on the claims that might be made upon others—

especially such claims as would be appropriate to back up by force. Such claims

will in any case be largely the responsibility of that individual’s household or

other primary group. What will be immediately sought when confronting another

human being will be the role, place or standing of that being. What expectations

may reasonably be formed follow from the recognition of this role, place or

standing; there may or may not be corresponding rightful claims that the

individual can make.

As long as human beings are conceived as inseparable from the roles they are

assigned and roles are not merely differentiated but hierarchically structured,

there will be a bottom step in the hierarchy. In the ancient Greek and Roman

worlds, there were no rightful claims that those at the bottom of the hierarchy

could make. Some slaves became objects of genuine affection (such as ‘masters’

and ‘mistresses’ still develop for their dogs and cats), others became objects for

venting spleen; some were valued for exceptional skills, others as confidants and

advisors. These factors may mask what the slave’s legal standing contributes to

the texture of the relationships, but at the foundation of all modifications

remained the fact that slaves had no legal autonomy or public personality, could

not leave their master’s service by their own choice, and had to ‘answer with

their bodies for all offenses’ (Finley 1980:93). Legally, a slave had a standing

little better than one of our domestic appliances. As Aristotle puts it:

the servant is himself an instrument [or ‘tool’ or ‘appliance,’ organ n] for

instruments. For if every instrument could accomplish its own work,



THE MEASURE OF LAW 151



obeying or anticipating the will of others... if the shuttle would weave and

the plectrum touch the lyre, chief workmen would not want servants, nor

masters slaves.

(1253b33–1254a1)

The only reason that a master has not to maltreat or undernourish his slaves that

is linked to their roles is the effect it will have on their usefulness to him.

Recent students of intellectual history have recognized that during the

seventeenth century CE European thought crossed a watershed. Looking back, it

is possible to discern assumptions about the nature of society that are prevalent

now but were almost non-existent in ancient and medieval thinkers, and ideas

once taken for granted that are now more than a little hard to understand. In a work

published early in this century, the German historian of social theory Otto Gierke

distinguished the two notions of human association involved in this conceptual

transformation as ‘corporation’ (Gemeinschaft) and ‘partnership’ (Gesellschaft)

(1934: Vol. I, 45). The first conception, Gierke indicated, would correspond to

the Latin notions universitas, communitas and corpus, the second to societas—a

socius was a military ally or a business partner. The latter notion, which has

become dominant in the modern period, looks at human association (particularly

at the political level) as a coming together of independently existing individuals

who constitute a political environment by agreeing to co-ordinate their activities

with a view to some mutual benefit. The former notion, prevalent in earlier times,

had a variety of forms, but in all of them it was taken for granted that humans were

not fully human outside a political environment, and hence it did not make sense

to view the political environment as constituted by the agreement of (possibly)

independent individuals.

It is not that pre-modern people did not use the concept of a partnership

(temporary or long term); what they did not do was conceive all human

interactions as at bottom partnerships. But at the same time it should not be

assumed that they always understood the image of the ‘body-politic’ as involving

a thoroughgoing organic unity. The variety of ways of conceiving ‘corporations’

or ‘communities’ that older thinkers might advocate ranged from literal

applications of the metaphor of an organic body to somewhat looser forms of

unity. Under the former, people were conceived entirely in terms of the more

permanent of their roles and could not, any more than can the organs of a body,

have lives and/or human capacities independently of their function in the ‘body

politic.’ While never dispensing altogether with roles, less strictly organic

models allowed more weight to be placed on voluntary agreement.

In the course of criticizing what he saw as a hankering after an inappropriate

degree of social unity in Plato’s thought (evident most prominently in the

Republic), Aristotle distinguished three degrees of unity: that appropriate to a

biological organism; that appropriate to a family; and that appropriate to a polis

(city-state; 1261a15–22). Aristotle’s argument rested on the principle that the more

unity an organization has, the less self-sufficient it is; the polis is more self-



152 THE MEASURE OF LAW



sufficient although more of a plurality (less of a unity) than a family and the

family more self-sufficient and more of a plurality (less of a unity) than a single

human being. A polis, however, did not achieve its self-sufficiency by being a

collection of undifferentiated parts (like a military alliance; a23–5). ‘The

elements out of which such a unity is formed differ in kind. That is why

reciprocity preserves poleis, as it was said earlier in the Ethics’ (a29–31). People

still have roles, but in constituting a polis more reliance is placed on agreement,

contract and mutual claims that entail (in effect, if not identified as such) mutual

rights. But not everyone is a player, as the Ethics explains:

For it is by proportionate requital that the city holds together. Men seek to

return either evil for evil—and if they cannot do so, think their position

mere slavery—or good for good—and if they cannot do so, there is no

exchange, but it is by exchange that they hold together.

(1132b34–1133a2)

Customs of exchange based on some idea of reciprocity have the effect of

forming people into a polis, but no reciprocity need obtain between individuals if

the differences in their roles place them in widely separated places in the social

hierarchy.

With the decay of the framework built around the notion of community,

human beings came to be thought of in terms other than their social roles; their

relationships to one another came to be thought of, if not as partnerships of their

own making, then as partnerships at least susceptible to being remade by

agreement. What then became relevant to those (now thought of as contractual)

relationships were the claims that ‘partners’ or ‘associates’ might reasonably ask

to have enforced against one another. It became possible to reduce roles to the

claims that they entailed, to rights and correlative duties, founded on voluntary

commitment.

The replacement of the notion of communitas with that of societas is not by

any means a well-understood phenomenon. A number of prior and concurrent

changes in institutions like that of property can be observed. The sense in which

a slave was a piece of personal property in the ancient world is not quite what it

would be today if it were permissible to ‘own’ someone. The notion of the

power, dominium, of a head of a household was modified in several ways before

it came to express something like our notion of property. It was both extended to

cover what men had under their control by the grace of a superior (emperor, feudal

lord) and also extended to cover such abstract items as fame and liberty. In

groping toward a foundation for the institution of slavery that incorporated the

idea of a status voluntarily entered into, the Portuguese Jesuit Luis de Molina,

poised on the watershed that was mentioned above, argued that

Man is dominus not only of his external goods, but also of his own honor

and fame; he is also dominus of his own liberty, and in the context of the



THE MEASURE OF LAW 153



natural law can alienate it and enslave himself. …It follows…that if a man

who is not subject to [any civil law restricting voluntary servitude] sells

himself unconditionally in some place where the relevant laws allow him,

then that sale is valid.

(translated in Tuck (1979:53–4) from Molina’s de Iustitia et Iure, Mainz,

1614: cols 162–3)

The sort of obligations that entailed no correlative rights, associated with roles

not voluntarily entered into, were becoming less important and have now become

for us much less salient.

7.2

Natural slaves and natural law

Contours of nature and the flow of rhetoric

The only record of a defense of the institution of slavery by an ancient thinker is

that offered by Aristotle. He addresses the claims that slavery is ‘contrary to

nature,’ exists only by custom (nomos; 1253b21) and is neither very good nor

just (dikaion; 1254b19), although it is not clear who may have formulated these

arguments. The key premise of Aristotle’s argument is that some people do not

possess a capacity for initiating discursive thought, only a capacity for perceiving

or complying with it (1254b21–4). Part of this premise is the assumption that

nothing can be done by way of education to develop the missing capacity. This is

how Aristotle tries to ‘naturalize’ the institution of slavery (see beginning of

Section 3.2). The inference from this seems to be that it is reasonable and proper

for people who have only enough intelligence to do what they are told but not to

figure out for themselves what needs to be done to be assigned the ‘logical and

juridical’ (as Finley (1980:77) puts it) condition of slave.

Given what we saw in the previous section, it should come as no surprise that

missing from Aristotle’s defense is any attempt to explain why the incapacity to

initiate discursive thought should be correlated with an absence of important

rights. We accept that in some cases capacities are prerequisites for possessing

rights; one must be able to see well enough to have the right to drive a car and

must have acquired certain knowledge and abilities to have the right to practise

law or medicine. What is not obvious is why lacking a capacity for figuring out

what needs to be done should entail being required to ‘assist with [his/her] body

the necessities [of the master’s life]’ (b26). What may have helped Aristotle over

this step was the way in which societies in which there are slaves categorize them

as children, calling a slave ‘boy’ or ‘child’, e.g. Greek pais, Latin puer. As it is

not unreasonable to expect children to contribute to the household economy in a

manner commensurate with their abilities, it would be reasonable to expect those

who were going to remain in a permanent state of immaturity, as it were, to

contribute in what ways they could to the household that feeds and shelters them.

The assumption about the permanence of their immaturity follows from the



154 THE MEASURE OF LAW



assumption that ‘naturalizes’ the institution, but this still does nothing to address

the question about what rights the immature (permanent or otherwise) should or

should not be acknowledged to have.2

The problem is that there is nothing in Aristotle’s vocabulary that corresponds

directly to ‘right,’ and it would not occur to him to frame the question in

anything like this way.3 Masters directed, it was their role to deliberate about

what was to be done and this gave them rightful claims. Slaves carried out

directives; that was their duty and it was not their role to reason why or their right

to hear reasons. The supposed ability of the former to initiate discursive thought

and the congenital inability, as Aristotle saw it, of the latter was no doubt little more

than a projection and under-scoring of the roles assigned to them by society.

Nevertheless, the value of having people who were supposed to be able to think

well completely direct the lives of those who could not was taken to be obvious—

the rightful claims and duties entailed by these differences of function did not

seem to call for justification.

Sixteen centuries later, St Thomas Aquinas offered much the same

justification for the existence of slavery, although his version at least

acknowledged the slave’s standpoint: it was ‘useful to this man [the slave] to be

ruled by a wiser man, and the latter to be helped by the former as the Philosopher

[Aristotle] states’ (IIaIIæ Q57 A3). The justification given concentrates on the

advantages of the arrangement, and although Christian morality, which Aquinas

helped to articulate, recognized slaves as having in effect more rights (to

sustenance, to their own families and to freedom from physical abuse and sexual

exploitation) than they were granted in the ancient world, the advantage of

having the lives of the cognitively less well endowed under the comprehensive

control of a more talented master (or tied to his land), rather than a matter of

mutual agreement between them, was not addressed. Roles seemed to have a

unity that made such justification unnecessary.

One thing that may still surprise, after the relative unimportance of rights and

roles is appreciated, is that rhetoric about basic equality and natural freedom was

not unknown in the ancient world, but it did not work as we would expect it to

work against slavery as an institution. This is the watershed effect: no matter how

high the rhetoric falls, if it does not fall on the right side, it does not flow in the

expected direction. Talk of a fundamental equality among all men and the idea

that all men are born free appear long before the institution of slavery was ever

seriously challenged. The writers who used these expressions were, moreover,

well equipped to distinguish what a society regarded as lawful and what it ought

to regard as lawful.

Cicero (first century BCE) articulated the Roman attitude to law in such a way

that it appeared to answer to something more universal than the Roman sense of

ius. Connected to this doctrine that what is lawful is a universally recognizable

natural property, which appears at the head of this chapter, is a striking statement

of the fundamental similarity of all human beings: ‘No single thing is so like

another, so exactly its counterpart, as all of us are to one another’ (Keyes 1938:



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