The 1926 Slavery Convention fixed the definition of the term ‘slavery’ in international law. Article 1 (1) of the Convention states that ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. This definition was accepted by the European Court of Human Rights in the 2006 case of Siliadin v France,[1] which noted that the Convention’s definition ‘corresponds to the “classic” meaning of slavery as it was practised for centuries’.[2] This ‘classic’ meaning is rooted in Roman law: ‘the Romans left slavery as a major legacy, whose distant legatees were the slaves and slave-owners of the Americas’.[3] In exploring the meaning of the term ‘slavery’, then, due attention must be paid to Roman law.

The starting point in the definition of ‘slavery’ is thus the Corpus Iuris Civilis [Body of the Civil Law] of Justinian, compiled between the years 529 – 534CE. The Institutes of the Corpus Iuris was fundamentally based on the work (essentially a student textbook!) of the same name by an earlier Roman jurist, Gaius, who wrote in about 160CE.[4] Herein, all of ‘private law’[5] was divided into three headings: the law of ‘persons’, the law of ‘things’ and the law of ‘actions’.[6] As the Scottish jurist Neil MacCormick noted in 2007, from the standpoint of lawyers and jurisprudents, ‘even in the Twenty-First century, one can still say rather as Gaius did two centuries ago, that all law concerns persons things and actions’.[7]  The legacy of the Corpus Iuris Civile – and so Gaius’s textbook – lives on in the law codes of Civil law jurisdictions across the world today, and has a particular importance in the non-codified jurisdictions of Scotland and South Africa which have each been described as examples of ‘living Roman legal systems’.[8]

Private law is concerned with private ‘persons’ (persona/personae) and their relationships with other private ‘persons’ as well as with ‘things’. All ‘persons’ are imbued with non-patrimonial ‘personality interests’[9] – that is, interests in one’s bodily integrity, sexual integrity, reputation, privacy and dignity (amongst other things – the list of personality interests is not closed). If a person is beaten, raped or slandered by another person, then they are axiomatically entitled to raise a private ‘action’ seeking redress for assault, rape or defamation against that wrongdoer, due to the affront effected to their bodily integrity, sexual integrity or reputation (respectively). This private law action exists independent of any criminal considerations: criminal law is, by definition, a part of the public, rather than private, law, since it concerns the prosecution of wrongs which are deemed by society to have harmed the State polity as a whole, rather than (or in addition to) any particular legal subject.

In addition to possessing non-patrimonial interests, every person has, in private law, a ‘patrimony’ which comprises the sum total of all assets and liabilities owned by and owed by that person.[10] In other words, ‘persons’ are entitled to lay claim to ‘things’ which they may hold and control, transfer and sell and otherwise use to gain economic or material advantages. They may also owe ‘things’ of this kind to other persons. ‘Things’, as Gaius and Justinian note, may be corporeal or incorporeal.[11] Provided that they are conceptualised as ‘objects’ (i.e., ‘things’) rather than ‘subjects’ (i.e., ‘persons), any such entity – corporeal or incorporeal – may form a part of a person’s ‘patrimony’. Thus, if a person owns a piece of farmland, then the farmland will form a part of that person’s patrimony. Similarly, if a farmer leases this farmland from that person, then the ‘right to the tenancy’ will be – in law – an object in that farmer’s patrimony. In the case of the landowner, the corporeal thing (the land) is an economic asset held in the patrimony of the named person; the obligation to lease the property on the terms agreed is an incorporeal thing marking a debit in the person’s patrimony. In the farmer’s case, the incorporeal thing (the lease) is an economic asset which is held in their patrimony.

It must, at this juncture, be borne in mind that the Latin term for ‘person’ – persona/personae – does not simply denote a human being. Rather, ‘when the word [persona] appears in the Corpus Iuris Civile, it has to be understood as referring to one of the men present at court’,  since ‘in legal texts the word was used for the actors in a law suit’.^[12] A human being is a ‘person’ only if they are entitled to raise an ‘action’ against, or otherwise engage with another ‘person’ in the theatre of law, or permitted to raise an ‘action’ in respect of a ‘thing’ (corporeal or incorporeal) to which they have a claim. The ultimate claim which a ‘person’ could have over a ‘thing’ was and is dominium [‘ownership’]. Dominium was, in Roman law, and is, in all modern Civilian systems of property law, a relationship between a ‘person’ and a ‘thing’ which grants the ‘person’ a complete power of disposal, use and abuse of the ‘thing’ which is owned, as well as an entitlement to any ‘fruits’ produced by it. Taken together, these powers and entitlements (which may be legitimately limited by legislation or by private agreement)[13] denote ‘the powers attaching to the right of ownership’ referred to in the 1926 Slavery Convention.

Justinian and Gaius each begin, under the title of the law of ‘persons’, by stating that ‘the primary division in the law of persons is between those human beings who are free and those who are slaves’.[14] Although this was said to be the case, however, it is apparent that in Roman law ‘a slave was not a person at all’.[15] Slaves, and their relationships with other human beings, were not governed by the law pertaining to ‘persons’, but rather by the law pertaining to ‘things’. By definition, a slave was not a legal subject. Instead, they were conceived of as objects: that is, they were viewed as what Anglo-American lawyers would refer to as ‘chattels’, but the Romans – and Scots as well as those from other Civilian legal systems of property law – would term ‘corporeal (moveable) things’. Such things (whatever terminology is attached to them) are objects of ‘property’ and so susceptible to being held in dominium by (that is, in the patrimony of) ‘persons’. By definition, such things do not have any personality interests. The dominus of a corporeal moveable thing may, as indicated above, use and abuse it however he or she likes – the thing has no entitlements, in law, in and of itself.

To say this is, in a sense, to state the obvious. It is trite to say that a thing such as a gold coin, a piece of farmland or a shirt cannot appear in court on its own account. Indeed, it is absurd to imagine a shirt suing its owner for mistreating it by, say, failing to iron it, or consistently putting it on the wrong washing cycle. That said, it is much less absurd to think an animal who is tortured by its owner should be afforded legal protection. Though it is (or at the very least ought to be) readily apparent that one who abuses a living animal commits a moral wrong, it is not (necessarily) the case that a dominus who does so commits a legal wrong. An animal, as a non-person, cannot sue its owner to vindicate its entitlement(s) to be free from harm (if it has any – remember that only ‘persons’ have ‘personality interests’) and, in the absence of animal welfare legislation, or some comparable law limiting an owner’s exercise of dominium over their property, the owner may ‘use’ and ‘abuse’ the creature however he or she likes. A dog or a cat, in Roman law (as indeed in modern Scots law) is, as a thing, governed by the same rules as those that govern inanimate objects such as tables, chairs and bicycles.[16] Slaves, in Roman law, were treated no differently from ‘other owned animals’:[17] ‘so far as there is any difference of treatment [between slaves and animals in law] it is due to the slave’s possession of reason, so that (a) he is able to increase his master’s means by his intellectual as well as by his physical powers, and (b) by manumission [the formal process by which slaves were freed] he is capable of becoming a “person”’.[18]

Manumission would in all cases grant personhood to the libertine and, in most circumstances, would confer Roman citizenship upon the freed slave also. As Westermann observed in 1955, ‘the best criterion for determining the rigidity and the harshness of any slave system is to be found in the case and availability of its manumission procedures’.[19] These procedures were much more stringent in the Americas than in Roman law; gradually over time, the colonial and American law of manumission was modified to become as minimal and as restricted as possible.[20] Slavery came to be a life-long status or condition in theory, as well as in practice, while in Roman law any slave could, in theory, be ‘freed’. A freedman may, perhaps, have enjoyed only lowly social status on manumission, but they would – at a minimum – be recognised as a ‘person’. The same could not be said of slaves in the transatlantic system, where, through statutory intervention, the legislatures of the colonies endeavoured to make manumission as difficult as possible, and often limited the ‘personhood’ of freed slaves where it was in fact successfully effected.[21]

Since only ‘persons’ are recognised as holding, and being entitled to vindicate, ‘personality interests’, this in effect meant that in Roman law and in any system of slave law therefrom derived, a slave could be used or abused by their ‘owner’ with impunity. A dominus who rapes his slave commits no wrong in private law as the slave has no entitlement to sexual or bodily integrity. Moreover, by virtue of the fact that a dominus enjoyed entitlement not only to the thing itself, but also ‘fruits’ produced by the thing, the owner of a female slave would be entitled to claim ownership of any child that the slave gave birth to. The status of the child would follow that of the mother: a ‘thing’ could not give birth to a ‘person’ (nor, for that matter, a ‘person’ to a ‘thing’), hence slave owners were not only free to sexually abuse and impregnate their female slaves – they had a clear economic incentive to do so.

It is this wholesale denial of the ‘personhood’ of the slave that marks the true horror of slavery as a legal institution. The denial of ‘personhood’ necessarily entails the denial of dignity in the eyes of the law, as things axiomatically have no non-patrimonial value. Their worth, such as it is, is wholly economic, arising only out of their place in the patrimony of their owner. At this juncture, though, it should be stressed that the institution of slavery in the Americas evolved to be something altogether worse than that which developed in Roman law. While in in Rome ‘enslavement could happen to anyone; even to a Roman citizen. Being a slave was no indication of moral or intellectual inferiority’,[22] transatlantic slavery was marked out by its clear racial dimension. Whites were not slaves and could not be enslaved and ‘in English America one might almost say that a slave[23] belonged to every citizen – at least, he was subordinate to every white’.[24] Thus, due to the racial element of transatlantic slavery, the state itself was heavily involved in the regulation of the relationship between slaves and society; it did not simply set out the rules pertinent to the relationship between slave and master.

‘English [and thus American] slave law possess[ed] a public dimension in a way that is in sharp contrast with Roman law’.[25] Though the evil of denying a human being ‘personhood’ is common to all forms of slavery, the system of ‘chattel slavery’ which developed on the American continent was race-based and heavily modified by legislative enactment. These legislative enactments did not, however, change the core of what ‘slavery’ means. It remained – indeed, due to the definition provided in the 1926 Convention, it today remains – a quintessentially legal status which strips the enslaved human being of all dignity, worth and non-monetary value in the eyes of the law, and which prevents the enslaved from vindicating any legal entitlement which a ‘person’ may enjoy. ‘Whips, and chains, and tortures are [the] attendants’ of slavery and servitude alike,[26] but serfs, servants and the victims of human trafficking each at least have the (perhaps only cold) comfort of being recognised as ‘persons’ in the eyes of the law. The abuses to which they are subject can be said to be legally ‘wrongful’, even in the absence of legislative intervention. This is not so in the case of the ‘slave’.

While human trafficking and exploitation remains a major issue in the 21^st century – and while the condition of some ‘indentured servants’, or serfs, might appear readily comparable to that of slaves – it remains the case that ‘slavery’, properly conceptualised, is an institutional normative (i.e., legal) status or condition which involves more than mere maltreatment. Thus, as I discuss in my recent article,[27] in seeking to criminalise ‘slavery’ through enacting the Human Trafficking and Exploitation (Scotland) Act 2015, and in trying the definition of ‘slavery’ to the sense which it possesses in international, and so Roman, law, the Scottish Parliament in fact criminalised an impossible action. The law of Scotland does not recognise the status or condition of slavery, nor does it recognise that one human being may hold dominium over another. Hence, as it can never be shown that one person has lawfully exercised the ‘rights of ownership’ over another, no person can be convicted of the crime of ‘slavery’ as set out in s.4 of the legislation.

For a legislature to tackle the problems posed by human trafficking in the 21^st century, there must be engagement with the historical roots of the concepts being discussed. Though it can certainly be plausibly argued that the definition of ‘slavery’ should be broadened to encompass human trafficking as it occurs today, there is a similarly compelling argument to the effect that the horrors of slavery, in its sense as outlined above, are such that the word should not be ‘watered down’ so as to include anything other than the wholesale denial of humanity which occurs under the institution of slavery historically observed. Whichever argument is to be favoured, it remains the case that the Scottish Parliament must engage with this debate fully in reviewing the 2015 Act. As it stands, the legislation which it enacted to deal with this issue is, at least in part,[28] void of legal effect.

[1] Application no. 73316/01

[2] Ibid., para.122

[3] William D. Phillips Jr., Slavery from Roman Times to the Early Transatlantic Trade, (University of Minnesota Press, 1985), p.16

[4] Olga-Tellegen-Coupernus, A Short History of Roman Law, (Routledge, 1990), p.100

[5] Contrasted with ‘public law’, which concerns the rules which govern the composition of the State and the State’s relationship with private ‘persons’.

[6] Gaius, Institutes, I, 8; Justinian, Institutes, I, 2, 12

[7] D. Neil MacCormick, Institutions of Law: An Essay in Legal Theory, (Oxford University Press, 2007), p.77. Indeed, in a provision which might be of considerable interest to private law theorists, s.126 (4) of the Scotland Act 1998 defines ‘private law’ according to this schema, though ‘obligations’ are split off from the law of ‘things’ and given their own discrete heading.

[8] Eric Descheemaeker and Helen, Scott Iniuria and the Common Law, (Oxford: Hart Publishing, 2013), p.2

[9] I.e., ‘dignitary’ – see Niall R. Whitty and Reinhard Zimmermann Rights of Personality in Scots Law: A Comparative Perspective (Dundee University Press, 2009), p.3

[10] Anglo-American lawyers might refer to a person’s patrimony as an ‘estate’ – as in the ‘estate of a decedent’ in the law of succession.

[11] Gaius, Institutes, 2, 8; Justinian, Institutes, 2, 2, 12

[12] Laurent L. J. M. Waelkens, Medieval Family and Marriage Law: From Actions of Status to Legal Doctrine, in John W. Cairns and Paul J. du Plessis, The Creation of the Ius Commune: From Casus to Regula, (Edinburgh: Edinburgh University Press, 2010), p.104

[13] See, e.g., the discussion in the Scottish case of Anstruther v Anstruther (1836) 14 S. 272, p.286

[14] Justinian, Institutes, I, 3, 1; Gaius, Institutes, I, 3, §9. Author’s translation.

[15] J. B. Moyle, Imperatoris Iustiniani Institutiones, (Clarendon Press, 1896), p.111

[16] In many modern Continental European systems, animals have been removed from the ambit of ‘thing-law’ and are instead governed by discrete statutes – see, for instance, Article 90a of the BGB (the German Civil Code).

[17] Hence the title of Professor Watson’s 1997 article: Rights of Slaves and Other Owned-Animals, (1997) Animal Law 1

[18] JB Moyle Imperatoris Iustiniani Institutiones Libri Quattuor: With Introductions, Commentary and Excursus (Clarendon Press, 3rd edn, 1896) pp.111-112

[19] W. L. Westermann, The Slave Systems of Greek and Roman Antiquity, (American Philosophical Society, 1955), p.25

[20] See M. I. Finely, Ancient Slavery and Modern Ideology, (Chatto and Windus, 1980) pp.18–19

[21] See Alan Watson, Slave Law in the Americas, (University of Georgia Press, 1989), pp.61 (the Spanish Americas); 75 (the English Americas). Cf. p.86, which discusses the French Americas, where – clearly as a result of Roman intellectual influence – French citizenship was conferred upon manumitted slaves by virtue of Article 55 of the Edict for Louisiana of 1685.

[22] Alan Watson, Rights of Slaves and Other Owned-Animals, (1997) Animal Law 1, p.2

[23] Necessarily non-white, in this context.

[24] Alan Watson, Slave Law in the Americas, (University of Georgia Press, 1989), p.66

[25] Alan Watson, Slave Law in the Americas, (University of Georgia Press, 1989), p.66

[26] ‘De facto ‘slavery’, in a non-technical sense… would be no more than an unlawful detention, with the attendant cruelties and tortures being regarded as further and additional delicts’: Jonathan Brown, Slavery, Servitude and Scots Law, [2020] Legal Studies (firstview, available at https://tinyurl.com/yx3lysjl)

[27] Jonathan Brown, Slavery, Servitude and Scots Law, [2020] Legal Studies (firstview, available at https://tinyurl.com/yx3lysjl)

[28] See Miller v HM Advocate [2019] HCJAC 7 where, as a result of the issues discussed here and in my recent article, the co-accused were acquitted of the s.4 crime of ‘slavery’, but nevertheless convicted of the s.4 crime of holding another in servitude, which is defined under the same provision as ‘slavery’ and carries the same sentence.

Dr. Jonathan Brown is a Lecturer in Scots Private Law at the University of Strathclyde, Glasgow. This post is based on the Legal Studies article “Servitude, slavery and Scots law: historical perspectives on the Human Trafficking and Exploitation (Scotland) Act 2015,” which can be read for free until 1 August.