The legal capacity of public slaves in the Roman empire

Abstract

Slaves are things, and therefore objects rather than subjects of law. In other words, freeborn and freed people may have rights over slaves, but slaves are not supposed to have any rights over anything or anyone. However, such an absolute principle is simply not practical, and may never have been enforced. De facto, slaves often enjoyed some level of consideration as a result of their humanness, and sometimes even more than consideration on the basis of their economic significance. De iure, slaves have been regarded as the property of their master(s) (dominus/-a or domini/-ae, singular or plural, male or female), engaging the latter’s ‘noxal’ liability—a Roman archaic concept akin to tort—in case of wrongdoing, and as part or extension of his/her/their legal personality, in case of accretion.1¹ Roman slave-owners and jurists, who we assume belonged to roughly the same social stratum, worked towards combining to their own benefit the practicalities and requirements of social and economic life within the existing and developing legal framework. Even though the earlier stages of the history of Roman slavery law remain rather blurred for lack of primary sources, it appears that legal innovation was promoted in a private context by public institutions. Magistrates, such as aediles and especially praetors, used their right of issuing edicts (ius edicendi) to outline the principles according to which they intended to exercise their judiciary activities, providing legal remedies (actiones) to deal with issues arising in situations involving slaves as economic agents. Some of these remedies contributed to the acknowledgement of a sort of legal capacity for slaves in privileged positions, with their master’s/masters’ explicit or even tacit agreement. What seems to have developed within, and for the sake of, family businesses during the late Republican period was transferred and adapted to different contexts, such as private associations, the Roman state, and Roman towns by the early Principate at the latest.