Chicago-Kent Law Review, Vol. 68, No. 3 (1993), pp. 1355-1371

Abstract

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se moventes, things that move of their own accord, animate beings, such as horses and cattle; others, again, as inanimate property. A sub-division of res se moventes might be in Aristotle's term -- “thinking property,” that is, human beings. And the ownership of thinking property may in the eyes of the law create rights and duties that are somewhat different from those arising from the ownership of other res se moventes.

This Paper is devoted to an examination of some problems that occur when slaves are considered as “thinking property.” I will not deal with the rather different issues that arise when slaves are to some extent accorded legal personality, such as when they may appear as witnesses, create a legally valid marriage, or be prosecuted for crime. The subject, therefore, concerns issues such as whether a person is liable for injuries caused by the negligence of a fellow worker to a slave whom he had hired, and whether a hirer of a slave is liable if he permitted the slave to do work forbidden by the contract, and the slave was injured.

This Paper is restricted to Rome because it was there that the law of thinking property was most developed. I will deal with only five examples, chosen because I have not examined them before, and because I think I have something new to say.

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