As for dominium, the word is derived from dominus, meaning “master” or “slave-owner,” but ultimately from domus, meaning “house”or “household.” It’s of course related to the English term “domestic,” which even now can be used either to mean “pertaining to private life,” or to refer to a servant who cleans the house. Domus overlaps somewhat in meaning with familia, “family”—but, as proponents of “family values” might be interested to know, familia itself ultimately derives from the word famulus, meaning “slave.” A family was originally all those people under the domestic authority of a paterfamilias, and that authority was, in early Roman law at least, conceived as absolute.101 A man did not have total power over his wife, since she was still to some degree under the protection of her own father, but his children, slaves, and other dependents were his to do with as he wanted—at least in early Roman law, he was perfectly free to whip, torture, or sell them. A father could even execute his children, provided he found them to have committed capital crimes.102 With his slaves, he didn’t even need that excuse.
In creating a notion of dominium, then, and thus creating the modern principle of absolute private property, what Roman jurists were doing first of all was taking a principle of domestic authority, of absolute power over people, defining some of those people (slaves) as things, and then extending the logic that originally applied to slaves to geese, chariots, barns, jewelry boxes, and so forth—that is, to every other sort of thing that the law had anything to do with.
It was quite extraordinary, even in the ancient world, for a father to have the right to execute his slaves—let alone his children. No one is quite sure why the early Romans were so extreme in this regard. It’s telling, though, that the earliest Roman debt law was equally unusual in its harshness, since it allowed creditors to execute insolvent debtors.103 The early history of Rome, like the histories of early Greek city-states, was one of continual political struggle between creditors and debtors, until the Roman elite eventually figured out the principle that most successful Mediterranean elites learned: that a free peasantry means a more effective army, and that conquering armies can provide war captives who can do anything debt bondsmen used to do, and therefore, a social compromise—allowing limited popular representation, banning debt slavery, channeling some of the fruits of empire into social-welfare payments—was actually in their interest. Presumably, the absolute power of fathers developed as part of this whole constellation in the same way as we’ve seen elsewhere. Debt bondage reduced family relations to relations of property; social reforms retained the new power of fathers but protected them from debt. At the same time, the increasing influx of slaves soon meant that any even moderately prosperous household was likely to contain slaves. This meant that the logic of conquest extended into the most intimate aspects of everyday life. Conquered people poured one’s bath and combed one’s hair. Conquered tutors taught one’s children about poetry. Since slaves were sexually available to owners and their families, as well as to their friends and dinner guests, it is likely that most Romans’ first sexual experience was with a boy or girl whose legal status was conceived as that of a defeated enemy.104
Over time, this became more and more of a legal fiction—actual slaves were much more likely to have been paupers sold by parents, unfortunates kidnapped by pirates or bandits, victims of wars or judicial process among barbarians at the fringes of the empire, or children of other slaves.105 Still, the fiction was maintained.
What made Roman slavery so unusual, in historical terms, was a conjuncture of two factors. One was its very arbitrariness. In dramatic contrast with, say plantation slavery in the Americas, there was no sense that certain people were naturally inferior and therefore destined to be slaves. Instead, slavery was seen as a misfortune that could happen to anyone.106 As a result, there was no reason that a slave might not be in every way superior to his or her master: smarter, with a finer sense of morality, better taste, and a greater understanding of philosophy. The master might even be willing to acknowledge this. There was no reason not to, since it had no effect on the nature of the relationship, which was simply one of power.
The second was the absolute nature of this power. There are many places where slaves are conceived as war captives, and masters as conquerors with absolute powers of life and death—but usually, this is something of an abstract principle. Almost everywhere, governments quickly move to limit such rights. At the very least, emperors and kings will insist that they are the only ones with the power to order others put to death.107 But under the Roman Republic there was no emperor; insofar as there was a sovereign body, it was the collective body of the slave-owners themselves. Only under the early Empire do we see any legislation limiting what owners could do to their (human) property: the first being a law of the time of the emperor Tiberius (dated 16 ad) stipulating that a master had to obtain a magistrate’s permission before ordering a slave publicly torn apart by wild beasts.108 However, the absolute nature of the master’s power—the fact that in this context, he effectively was the state—also meant that there were also, at first, no restrictions on manumission: a master could liberate his slave, or even adopt him or her, whereby—since liberty meant nothing outside of membership in a community—that slave automatically became a Roman citizen. This led to some very peculiar arrangements. In the first century ad, for example, it was not uncommon for educated Greeks to have themselves sold into slavery to some wealthy Roman in need of a secretary, entrust the money to a close friend or family member, and then, after a certain interval, buy themselves back, thus obtaining Roman citizenship. This despite the fact that, during such time as they were slaves, if their owner decided to, say, cut one of his secretary’s feet off, legally, he would have been perfectly free to do so.109
The relation of dominus and slave thus brought a relation of conquest, of absolute political power into the household (in fact, made it the essence of the household). It’s important to emphasize that this was not a moral relation on either side. A well-known legal formula, attributed to a Republican lawyer named Quintus Haterius, brings this home with particular clarity. With the Romans as with the Athenians, for a male to be the object of sexual penetration was considered unbefitting to a citizen. In defending a freedman accused of continuing to provide sexual favors to his former master, Haterius coined an aphorism that was later to become something of a popular dirty joke: impudicitia in ingenuo crimen est, in servo necessitas, in liberto officium (“to be the object of anal penetration is a crime in the freeborn, a necessity for a slave, a duty for a freedman”).110 What is significant here is that sexual subservience is considered the “duty” only of the freedman. It is not considered the “duty” of a slave. This is because, again, slavery was not a moral relation. The master could do what he liked, and there was nothing the slave could do about it.
The most insidious effect of Roman slavery, however, is that through Roman law, it has come to play havoc with our idea of human freedom. The meaning of the Roman word libertas itself changed dramatically over time. As everywhere in the ancient world, to be “free” meant, first and foremost, not to be a slave. Since slavery means above all the annihilation of social ties and the ability to form them, freedom meant the capacity to make and maintain moral commitments to others. The English word “free,” for instance, is derived from a German root meaning “friend,” since to be free meant to be able to make friends, to keep promises, to live within a community of equals. This is why freed slaves in Rome became citizens: to be free, by definition, meant to be anchored in a civic community, with all the rights and responsibilities that this entailed.111
By the second century ad, however, this had begun to change. The jurists gradually redefined libertas until it became almost indistinguishable from the power of the master. It was the right to do absolutely anything, with the exception, again, of all those things one could not do. Actually, in the Digest, the definitions of freedom and slavery appear back to back:
Freedom is th
e natural faculty to do whatever one wishes that is not prevented by force or law. Slavery is an institution according to the law of nations whereby one person becomes private property (dominium) of another, contrary to nature.112
Medieval commentators immediately noticed the problem here.113 But wouldn’t this mean that everyone is free? After all, even slaves are free to do absolutely anything they’re actually permitted to do. To say a slave is free (except insofar as he isn’t) is a bit like saying the earth is square (except insofar as it is round), or that the sun is blue (except insofar as it is yellow), or, again, that we have an absolute right to do anything we wish with our chainsaw (except those things that we can’t.)
In fact, the definition introduces all sorts of complications. If freedom is natural, then surely slavery is unnatural, but if freedom and slavery are just matters of degree, then, logically, would not all restrictions on freedom be to some degree unnatural? Would not that imply that society, social rules, in fact even property rights, are unnatural as well? This is precisely what many Roman jurists did conclude—that is, when they did venture to comment on such abstract matters, which was only rarely. Originally, human beings lived in a state of nature where all things were held in common; it was war that first divided up the world, and the resultant “law of nations,” the common usages of mankind that regulate such matters as conquest, slavery, treaties, and borders, that was first responsible for inequalities of property as well.114
This in turn meant that there was no intrinsic difference between private property and political power—at least, insofar as that power was based in violence. As time went on, Roman emperors also began claiming something like dominium, insisting that within their dominions, they had absolute freedom—in fact, that they were not bound by laws.115 At the same time, as Roman society shifted from a republic of slave-holders to arrangements that increasingly resembled later feudal Europe, with magnates on their great estates surrounded by dependent peasants, debt servants, and an endless variety of slaves—with whom they could largely do as they pleased. The barbarian invasions that overthrew the empire merely formalized the situation, largely eliminating chattel slavery, but at the same time introducing the notion that the noble classes were really descendants of the Germanic conquerors, and that the common people were inherently subservient.
Still, even in this new Medieval world, the old Roman concept of freedom remained. Freedom was simply power. When Medieval political theorists spoke of “liberty,” they were normally referring to a lord’s right to do whatever he wanted within his own domains. This was, again, usually assumed to be not something originally established by agreement, but a mere fact of conquest: one famous English legend holds that when, around 1290, King Edward I asked his lords to produce documents to demonstrate by what right they held their franchises (or “liberties”), the Earl Warenne presented the king only with his rusty sword.116 Like Roman dominium, it was less a right than a power, and a power exercised first and foremost over people—which is why in the Middle Ages it was common to speak of the “liberty of the gallows,” meaning a lord’s right to maintain his own private place of execution.
By the time Roman law began to be recovered and modernized in the twelfth century, the term dominium posed a particular problem, since it had come, in ordinary church Latin of the time, to be used equally for “lordship” and “private property.” Medieval jurists spent a great deal of time and argument establishing whether there was indeed a difference between the two. It was a particularly thorny problem because, if property rights really were, as the Digest insisted, a form of absolute power, it was very difficult to see how anyone could have it but a king—or even, for certain jurists, God.117
This is not the place to describe the resulting arguments, but I feel it’s important to end here because in a way, it brings us full circle and allows us to understand precisely how Liberals like Adam Smith were able to imagine the world the way they did. This is a tradition that assumes that liberty is essentially the right to do what one likes with one’s own property. In fact, not only does it make property a right; it treats rights themselves as a form of property. In a way, this is the greatest paradox of all. We are so used to the idea of “having” rights—that rights are something one can possess—that we rarely think about what this might actually mean. In fact (as Medieval jurists were well aware), one man’s right is simply another’s obligation. My right to free speech is others’ obligation not to punish me for speaking; my right to a trial by a jury of my peers is the responsibility of the government to maintain a system of jury duty. The problem is just the same as it was with property rights: when we are talking about obligations owed by everyone in the entire world, it’s difficult to think about it that way. It’s much easier to speak of “having” rights and freedoms. Still, if freedom is basically our right to own things, or to treat things as if we own them, then what would it mean to “own” a freedom—wouldn’t it have to mean that our right to own property is itself a form of property? That does seem unnecessarily convoluted. What possible reason would one have to want to define it this way?118
Historically, there is a simple—if somewhat disturbing—answer to this. Those who have argued that we are the natural owners of our rights and liberties have been mainly interested in asserting that we should be free to give them away, or even to sell them.
Modern ideas of rights and liberties are derived from what, from the time when Jean Gerson, Rector of the University of Paris, began to lay them out around 1400, building on Roman law concepts, came to be known as “natural rights theory.” As Richard Tuck, the premier historian of such ideas, has long noted, it is one of the great ironies of history that this was always a body of theory embraced not by the progressives of that time, but by conservatives. “For a Gersonian, liberty was property and could be exchanged in the same way and in the same terms as any other property”—sold, swapped, loaned, or otherwise voluntarily surrendered.119 It followed that there could be nothing intrinsically wrong with, say, debt peonage, or even slavery. And this is exactly what natural-rights theorists came to assert. In fact, over the next centuries, these ideas came to be developed above all in Antwerp and Lisbon, cities at the very center of the emerging slave trade. After all, they argued, we don’t really know what’s going on in the lands behind places like Calabar, but there is no intrinsic reason to assume that the vast majority of the human cargo conveyed to European ships had not sold themselves, or been disposed of by their legal guardians, or lost their liberty in some other perfectly legitimate fashion. No doubt some had not, but abuses will exist in any system. The important thing was that there was nothing inherently unnatural or illegitimate about the idea that freedom could be sold.120
Before long, similar arguments came to be employed to justify the absolute power of the state. Thomas Hobbes was the first to really develop this argument in the seventeenth century, but it soon became commonplace. Government was essentially a contract, a kind of business arrangement, whereby citizens had voluntarily given up some of their natural liberties to the sovereign. Finally, similar ideas have become the basis of that most basic, dominant institution of our present economic life: wage labor, which is, effectively, the renting of our freedom in the same way that slavery can be conceived as its sale.121
It’s not only our freedoms that we own; the same logic has come to be applied even to our own bodies, which are treated, in such formulations, as really no different than houses, cars, or furniture. We own ourselves, therefore outsiders have no right to trespass on us.122 Again, this might seem an innocuous, even a positive notion, but it looks rather different when we take into consideration the Roman tradition of property on which it is based. To say that we own ourselves is, oddly enough, to cast ourselves as both master and slave simultaneously. “We” are both owners (exerting absolute power over our property), and yet somehow, at the same time, the things being owned (being the object of absolute power). The ancient Roman household, far from having been
forgotten in the mists of history, is preserved in our most basic conception of ourselves—and, once again, just as in property law, the result is so strangely incoherent that it spins off into endless paradoxes the moment one tries to figure out what it would actually mean in practice. Just as lawyers have spent a thousand years trying to make sense of Roman property concepts, so have philosophers spent centuries trying to understand how it could be possible for us to have a relation of domination over ourselves. The most popular solution—to say that each of us has something called a “mind” and that this is completely separate from something else, which we can call “the body,” and that the first thing holds natural dominion over the second—flies in the face of just about everything we now know about cognitive science. It’s obviously untrue, but we continue to hold onto it anyway, for the simple reason that none of our everyday assumptions about property, law, and freedom would make any sense without it.123
Conclusions
The first four chapters of this book describe a dilemma. We don’t really know how to think about debt. Or, to be more accurate, we seem to be trapped between imagining society in the Adam Smith mode, as a collection of individuals whose only significant relations are with their own possessions, happily bartering one thing for another for the sake of mutual convenience, with debt almost entirely abolished from the picture, and a vision in which debt is everything, the very substance of all human relations—which of course leaves everyone with the uncomfortable sense that human relations are somehow an intrinsically tawdry business, that our very responsibilities to one another are already somehow necessarily based in sin and crime. It’s not an appealing set of alternatives.
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