There has been a niche debate in analytic jurisprudence between positivists and antipositivists on the issue of law, freedom, and slavery. By slavery, they mean chattel slavery: the legal designation of certain individuals as property, not person.Footnote 1 Chattel slavery is different from ‘modern slavery,’ in that chattel slavery is a creature of law.Footnote 2 The legal ownership of slaves has now been abolished all over the world, but its theoretical possibility remains. More than a mere theoretical possibility, the institution of chattel slavery has historical precedent. This theoretical possibility and historical precedent is an embarrassment for antipositivists who want to defend the proposition that law necessarily creates freedom for its subjects.Footnote 3 The institution of slavery has been used as a counterexample to assert that law is capable of creating unfreedom as much as freedom. According to positivists, it is all contingent, and there is no necessary connection between law and freedom.Footnote 4 One piece of evidence that positivists cite to back up their counterargument is the counterexample of slavery.
Since slavery is a creature of law, and slavery is the very antithesis of freedom, positivists use slavery as a counterexample to show that law can create unfreedom. If the positivist counterargument is correct, then the antipositivist position is false. The counterargument points to slavery to make the point that, at least as far as slaves are concerned, the law does not create freedom. In fact, for the slaves, the law does the exact opposite. If so, then the antipositivist position that there is a necessary connection between law and freedom collapses. According to Kramer, “the fact that a legal-governmental system might reduce many human beings to chattel slavery with no protections against arbitrary onslaughts is a ground for rejecting the thesis that ‘the rule of law is intrinsically linked to liberty.’”Footnote 5 He proceeds to conclude that “we should neither infer that the rule of law is inherently connected to liberty nor infer that it is inherently connected to slavery; instead, we should recognize that its moral bearings are protean.”Footnote 6
The problem of slavery is a specific manifestation of the larger problem of the evil legal system. All antipositivist positions have to deal with the problem of the evil legal system. As slavery is evil, a legal system that creates slavery is, to that extent, an evil legal system. If law is good, then how could evil legal systems exist? In the case of slavery, the problem is even more embarrassing for antipositivists, for it is law that puts the slave in the horrible condition that they find themselves in. Even if the law no longer does so, the mere possibility that it could do so is, according to positivists, enough to dispel any notion of a necessary connection between law and morality. In his defence of the antipositivist thesis that law necessarily realizes the moral value of freedom, Simmonds attempts to rebut the counterargument from slavery in the following richly suggestive passage:
The law might, of course, serve to establish slavery: but slaves are objects of proprietary right, not the bearers of legal rights and duties; to that extent they stand outside the system of jural relationships. If, however, the slaves enjoy certain legal protections (against the violence of their masters, for example), those protections are independent of the will of others, and dependent upon the law. To be governed by law is to enjoy a degree of independence from the will of others.Footnote 7
This paper is an extended commentary on this passage. Its first goal is to flesh out the ideas in this passage. Its second goal is to re-present the antipositivist rebuttal of the positivist counterargument from slavery. It is an attempt to reset the debate in broader terms by restating the antipositivist position. The restatement attempts to make a more general claim about law, freedom, and slavery, which is not so closely tethered to the niche debate within which this argument first arose, in order to appeal to a broader audience. This restatement hopes to draw in other theorists, who are non-partisans to this specific quarrel between positivists and antipositivists, by providing them with a more general proposition with which they could engage. This more general propositional restatement will bring together a more expansive range of issues that are of significant concern to legal and political philosophy, while remaining faithful to the core concerns of legal positivism and antipositivism.
The restatement centres on a single proposition. This paper argues that the wrong of slavery lies in the denial of the good of law to the slave. Defending this single proposition will require the positing of three related claims: (i) that law is good; (ii) that the good of law is denied to the slave; and (iii) that the denial is wrong. This paper will defend the main proposition by defending its three constituent claims. On claim (i), the paper will relate the form of law to the formation of freedom. On claim (ii), the paper will relate law’s objectivity to legal subjectivity. On claim (iii), the paper relates the state of nature to the state of civil society. These three claims make up the three parts of this paper. This paper provides a jurisprudential analysis of the law of slavery, which is not to say that there were no other factors, particularly socio-economic factors, at work in the institution of slavery, but these other factors are outside the remit of this paper and the expertise of its author.
The example of chattel slavery that this paper will use to illustrate its claims is the ancient Roman example. This paper will combine abstract theoretical speculation with concrete historical facts. Philosophical arguments, including legal-philosophical arguments, can refer not only to the actual world but also to a range of hypothetical worlds, such as Raz’s speculation about law in the society of angels, to highlight certain theoretical possibilities.Footnote 8 However, chattel slavery is not just a theoretical possibility. It was also a historical actuality. Unlike Raz’s imaginary legal system with angels, there had been actual legal systems with slaves. One can look to the historical record to find real-world instantiation of the institution of chattel slavery. This paper will use ancient Roman slavery as a historical illustration of how a legal system with slavery worked. There were other systems of chattel slavery besides the Roman one, such as that which existed in the antebellum American South. However, unlike American slavery, ancient Roman slavery is an example of a non-racial form of slavery. Given that slavery need not be racial, race-based forms of slavery were all the more pernicious for combining the moral wrong of slavery with the moral wrong of racism, thereby compounding the moral evil. This paper is focused on the moral wrong of slavery, which is a separate wrong from the moral wrong of racism. The examination of ancient Roman slavery allows for a moral assessment of the moral wrong of slavery as such, as its form of slavery was not tied to race.
1. What Is the Good of Law?
The first of the three constituent claims of this paper is that law is good in virtue of its necessary connection to the moral value of freedom. There is a necessary connection between the form of law and the formation of freedom as non-domination. Pettit contrasts two conceptions of freedom: liberal versus republican.Footnote 9 Liberal freedom conceives of freedom as non-interference, that is, the freedom of being left alone. In contrast, republican freedom conceives of freedom as non-domination, that is, the freedom from being subject to the will of another. Freedom as non-domination is defined in opposition to the condition of a slave. Law secures for its subjects the necessary condition for freedom as non-domination, which is not enjoyed by the slave. To anticipate the argument of the next section, the reason slaves do not enjoy freedom as non-domination is that, although slaves are subject to law, they are not subjects of law.
To live in potestate domini, like a slave under the power of a master, even that of a benevolent master, is sufficient to make one unfree. Freedom in the republican sense requires, not just the absence of restraint, but also the absence of restraining power. Freedom is more than just having a free rein. To have a free rein is to be dependent on the goodwill of the one who holds the rein. Freedom should not be dependent on the will, even if it is the goodwill, of another. Pettit illustrates the difference between the two conceptions of freedom with the example of a non-interfering slave owner. A slave might avoid interference, if the slave is fortunate or cunning enough to win the master’s favour. The slave would thus have freedom as non-interference. However, the slave would not have freedom as non-domination. The slave remains unfree, by the more demanding republican standard, because the master could interfere if the master wished. The slave lives in the shadow of the master, even if the master’s arm is never raised against the slave.Footnote 10 The enslaved is unfree, notwithstanding the range of options that may be contingently available to them. All the options of the slave are always dependent upon the goodwill of the master. The slave is totally dominated by the master, as the master can interfere with all the choices of the slave “at will and with impunity,” without any “scrutiny or penalty.”Footnote 11 That remains the case even if the master never actually interferes. All that it takes for domination to occur is the capacity to interfere. Hence, the chattel slave is the epitome of unfreedom.
In ancient republican thought, the opposite of the slave is the citizen: the latter has liberty, while the former has none. Although the citizen has liberty while the slave has none, it does not mean that the citizen has perfect freedom. What the citizen has is a degree of freedom as non-domination. Just as domination comes in degrees, so freedom as non-domination too comes in degrees. To the extent that one is not dominated, one enjoys pro tanto freedom as non-domination. There are two aspects to freedom as non-domination: qualitative and quantitative. Qualitatively, the existence of freedom as non-domination is determined by the legal guarantee that the exercise of some choices is independent from the will of another. Quantitatively, the precise range of freedom is determined by the range of protected choices, and within a protected choice, the range of options, which are secured by law. There is a necessary connection between the form of law and the qualitative aspect of freedom as non-domination, while the quantitative aspect of freedom depends on the contingent content of law.
The form of law necessarily secures for its subjects the qualitative aspect of freedom as non-domination, namely, independence from the will of another.Footnote 12 Law is what makes freedom as non-domination possible, for it is “laws and norms that give you the status of a free person.”Footnote 13 Freedom as non-domination is a civic freedom, which presupposes civil society. It is the status of living among others, without being dominated by them. Non-domination means the absence of domination in the presence of others in a community, not the absence of domination gained by isolation.Footnote 14 Law creates the “set of conditions within which one can live in community with others while enjoying some domain of entitlement that is secure from the power of others.” Footnote 15 The laws which protect you against domination therefore directly constitute your freedom.Footnote 16 If one thinks of freedom as non-interference, then one would be inclined to think of freedom as that which the law leaves you—because, if freedom consists solely in non-interference, then the law necessarily interferes with one’s life, and thereby, reduces one’s freedom. By contrast, if one thinks of freedom as non-domination, then one would instead think of freedom as that which the law gives you.Footnote 17 On the republican view, freedom is not that which is left untouched by the law; rather, freedom is that which is given by the law to its subjects.
Law protects against domination by ensuring that its subjects’ legally protected choices depend, not upon the will of another, but upon the law. Law always gives its subjects at least some choices. Law creates a regulated zone and, by implication, there has to be an unregulated zone. In the regulated zone, law prescribes what its subjects can and cannot do. But in the unregulated zone, however small that zone may be, its subjects will always have a choice because, while law can regulate anything, it cannot regulate everything. Because law cannot regulate everything, it cannot take all its subjects’ choices away. “Simply in consisting of followable rules, the law must allow me to retain certain areas of optional (non-obligatory) conduct,” however narrowly circumscribed they may be, “for the law’s demands cannot be limitless while also being possible to comply with.”Footnote 18 This point can be illustrated by imagining a legal regime which sought to remove choice entirely from the lives of its subjects. This legal regime might adopt two strategies. First, it may enact an extremely long list of precise rules, in the hope of defining exhaustively what its subjects should do in any and all situations. This strategy is doomed to fail. Life is too complex and dynamic for each and every situation to be pre-empted and regulated by law. Alternatively, the legal regime may pursue the opposite extreme: not more precise, but more general. The legal regime may enact an extremely general rule, such as: “everyone must behave in the ‘right’ way.” A standard like this could reach into every single choice a person could make. However, as Fuller identifies, one of the desiderata of law is clarity. Fuller notes that a legal system can incorporate common sense standards such as ‘fairness.’ However, such standards must have some content in order for them to be comprehensible, and hence, compliable.Footnote 19 If the standard of ‘rightness’ or ‘fairness’ is to be given a relatively clear meaning, its content has to be fleshed out, either by the law-maker or the law-enforcer. Before long, the legal regime will find itself back to square one. It can fall back on the first strategy, which is doomed to fail. But the second strategy does not work either. Consequently, the law cannot but leave interstices of choice to its subjects. This is partly why law is so inconvenient for rulers. It always creates interstices in which its subjects can choose, sometimes to the detriment of the ruling regime.Footnote 20
Law not only creates the interstices of choice, but it also makes the boundaries of those interstices relatively secure and certain. Fuller’s requirements that laws are published, prospective, and intelligible ensure that the boundaries of the regulated and unregulated zones are specified in advance. Hence, subjects can know and comprehend which choices they have, before making those choices. This makes an important contribution to freedom. As Rawls notes, if your freedom has uncertain boundaries, you will be too afraid to exercise it.Footnote 21 The relative certainty of law enables its subjects to enact their choices now and make plans into the future. Within the regulated zone, a subject will know beforehand what is forbidden and the consequence of doing that which law forbids. The subject could then decide whether to comply with the law, or to breach the law and bear the cost. Outside the regulated zone lies the zone of optional conduct, where more than one option is legally permissible. Within the range of legally permissible options, a subject could exercise free choice according to his or her own will.
Consider what is called a bilateral liberty under the Hohfeldian scheme.Footnote 22 A bilateral liberty to ϕ means that you have no legal duty to ϕ, and no legal duty not to ϕ. You may act at your discretion: the law will neither require nor prevent you from ϕ-ing. For example, in the case of a bilateral liberty to wear a hat, you have no duty to wear a hat, and no duty not to wear a hat. The law will thus not interfere with the exercise of this choice. Others may not interfere either, for liberties are normally accompanied by a perimeter of protection in the form of claim-rights with correlative duties.Footnote 23 People are under a duty not to assault you, which is usually enough to prevent them from interfering with your hat-wearing. Consequently, “a Hohfeldian liberty may appropriately be described as ‘a right’ only in virtue of its connection with the ‘perimeter of protection’ afforded by the general prohibitions on assault and other gross forms of interference.”Footnote 24 What we have is a complex matrix of associated rights, liberties, powers, and immunities, all of which are designed to create “domains of liberty within which the individual’s will is supreme.”Footnote 25
The existence of a perimeter of protection around one’s liberties may be broad or narrow, but the existence of some perimeter is necessary for law to exist in the state of civil society. Otherwise, we are back in the state of nature. Law is a means of getting us out of the state of nature into the state of civil society. A civil society cannot come into being unless people can be reasonably sure that they will not fall victim to violence by others. Some assurance of this kind is thus a precondition of civil society. Law provides this assurance by virtue of being the most important institutionalized normative system in any given society in which law exists.Footnote 26 Wherever law is found, there will be some perimeter of protection.Footnote 27 The breadth of this perimeter depends on, and varies with, the contingent content of law. Regardless of its breadth, the perimeter will have relatively clear boundaries. These boundaries stake out an area where a subject is protected from the will of others. Law creates rights and endows them with ‘peremptory force’: “the possession of a right entails both the permissibility of a certain action on the part of the right holder, and the inviolability of that action, in the sense that others are under a duty not to interfere with the action.” Footnote 28 Those domains of liberty are the result of the imposition of frameworks within which individual subjects may exercise their individual will autonomously in arranging their own affairs and pursuing their own objectives. Footnote 29 Within these domains, I can do as I please, even if what I do displeases you. Law keeps you from meddling in my affairs and trampling over me.
The Hohfeldian matrix of rights, liberties, powers, and immunities is a matrix of jural relations, which can only exist within a legal order. It is a product of the state of civil society, not a carryover from the state of nature. The ‘perimeter of protection’ around ‘domains of liberty’ is not the result of the silence of the law. On the contrary, it requires positive legal ordering in order to bring it about, for the Hohfeldian matrix is a specifically juridical phenomenon.Footnote 30 The law has transformative effects on our modes of association, for it creates new forms of relationships for its subjects, which we call jural relations. The mere enjoyment of a Hohfeldian liberty is proof enough that one is already out of the Hobbesian state of nature. This argument is consistent with the recognition of the fact that the form of law may not create the full breadth of choices that one desires. However, what the form of law always and necessarily does is give its subjects at least some choices which exist irrespective of the will of others. This independence from the will of others is the distinctive contribution of law to freedom in the state of civil society.Footnote 31
2. How Is the Good of Law Denied to the Slave?
Recall that the main proposition of this paper is that the wrong of slavery lies in the denial of the good of law to the slave. This proposition can be broken down into three constituent claims. The first claim, which was defended in the previous section, is that law is good. The second claim, which will be defended in this section, is that the good of law is denied to the slave. Law is good because the form of law realizes the qualitative aspect of freedom as non-domination. However, that good is denied to the slave because slaves are subject to law, but they are not subjects of law. The previous section has linked the form of law with the formation of freedom, while this section will link law’s objectivity with legal subjectivity.
The antipositivist claim, fully spelled out, has to include a crucial caveat. Law necessarily creates a degree of freedom as non-domination for its subjects. This caveat can be appreciated most clearly and straightforwardly in the territorial-jurisdictional instance. Law creates freedom for subjects who live under that legal system. It does not create freedom for those who live outside it. Roman law created freedom for subjects who lived under Roman law; it did not (and could not) create freedom for those living in Timbuktu. In the case of slaves, although slaves lived within the territorial jurisdiction of Roman law, they were not actually the subjects of Roman law. To be a subject, and not merely an object, of law means to be in jural relations with other subjects. To be in jural relations means to be bearers of rights and privileges in the Hohfeldian sense. Slaves held neither rights nor privileges under law. A slave is an object, not a subject, of law. Therefore, slavery does not disprove the antipositivist position. On the contrary, it evinces the value which living as a subject under law brings. It is the denial of the protection of law to the slave that makes slavery such an abject condition to be in. To free a slave is to extend the good of law to the slave by making them a subject of law.
As the property of the owner, a slave could neither sue, nor be sued. If a slave were to cause damage to another person’s property, the law would treat it in the same way it treated the case of animals who caused damage to another person’s property: the owner would be liable for the damage caused. As slaves lacked legal personality, “a slave’s misdeeds were his master’s responsibility,” which meant that the party who suffered a loss due to a slave’s misdeeds could bring a noxal action against the master to recover damages.Footnote 32 If the slave was injured through the wrongful action of another, it was the master who had the right to sue for damage to his property. Damages would be awarded to the master who owned the slave, and not to the slave who suffered the damage. As property themselves, slaves could not own property. However, slaves could have a peculium, which was property that was used and managed by slaves but owned by their master. Peculium allowed for possession without ownership. It allowed for the slave to possess property that they did not own. A peculium was a gratuitous grant by the master to the slave, which the master could revoke at will anytime. Neither a peculium nor a promise could be enforced by a slave against the master in a court of law.
Enslavement broke all bonds of kinship. In addition to being rightless, the slave was also kinless. The slave’s kinlessness was a corollary of the slave’s rightlessness. The slave could not enter into any legally recognized familial relationship with anyone. “Ownership, the relationship of slaveholder and slave, was the only socially and legally acknowledged relationship a slave had.”Footnote 33 Biologically, the slave of course had a father and a mother, but legally, the slave had neither. The law recognized no paternity for slaves. A child born into slavery was born a bastard. To identify oneself with reference to one’s father was the main source of identity and primary means of identification in antiquity, but a slave child had, not a father, but an owner.Footnote 34 Slaves were property, like livestock. However, unlike livestock, slaves looked like their owners, especially in ancient Rome, where slavery was not racial. Slaves might have been branded like cattle, but no one could for a moment have forgotten that there were differences between slaves and cattle: a slave could talk and speak to the master.Footnote 35 If a slave was property, the slave was a very unique type of property. The slave was what Aristotle called ‘property with a soul.’
If slaves were integrated into a network of jural relations, then as bearers of rights and privileges, they would have enjoyed a degree of freedom as non-domination. But they were not. Until they are brought within jural relations, they merely live in the presence of law, not under it. It is good to be in jural relations, for the existence of jural relations means that one is a subject of law, which guarantees a degree of freedom as non-domination. Without jural relations, the slave is barely human, or rather, the slave is a bare human. The antipositivist claim is not that law guarantees freedom as non-domination to all humans, or natural persons, within its jurisdiction. Rather, the claim is narrower: law guarantees a degree of freedom as non-domination to all subjects, or legal persons, within its jurisdiction. The claim still stands even if they are partial legal persons. Historically, women and children were sometimes treated as partial legal persons.Footnote 36 If they are pro tanto legal persons, then they will enjoy pro tanto freedom as non-domination.
All human beings are moral persons. But not all moral persons are legal persons. Only the subjects of law are legal persons. A legal person is brought into being by a legal frame that creates a “distinctive kind of relationship between authority and those subject to it,” which is unavailable to those “positioned outside of that frame.”Footnote 37 Legality secures a certain quality of existence for subjects who live under law.Footnote 38 Legal persons who live under law have domains of liberty. Within a domain of liberty, the subject would have protected choices, which the subject can exercise without fear of violence from others or sanction from the state. Law protects those choices from the violence of others by punishing those who unlawfully interfere with the exercise of a protected choice; and it protects those choices from the sanction of the state by stipulating in advance the circumstances in which violence can be deployed by the state. Within the legal frame, violence can only be deployed by the state against legal subjects in instances of rule-breaking, not willy-nilly. Slaves do not have that assurance of protection from violence, for the master can beat the slaves for rule-breaking, or for no reasons at all. The master can do so willy-nilly. Legal subjects have the protection of law, while slaves do not. The violence that slaves receive at the hands of their masters is not the enforcement of law, but senseless violence.
As Fuller says, in a legal relation, “there is a kind of reciprocity between government and citizen with respect to the observance of rules.”Footnote 39 Sanctions have to be sanctioned by rules that demarcate in advance the circumstances that would justify the imposition of violence. State-sanctioned violence has to be attached to a proscribed conduct following a prescribed rule. The word ‘sanction’ is a contronym (a word with contradictory meanings). It means both penalty and permission. However, in the context of the argument here, the two meanings of the word ‘sanction’ are more complementary than contradictory. In a legal system, the imposition of penalties (‘sanctions’) has to be permitted (‘sanctioned’) by clear and certain rules that control the use of force. So long as the subject refrains from the proscribed conduct and obeys the prescribed rule, the subject can be assured that he or she will not be susceptible to violence, either from the state or from other subjects.
The slave is not in any such reciprocal relationship, which is foundational to legal relations. What is at issue here is not just state violence, but state-sanctioned violence. State-sanctioned violence is not limited to violence that is meted out directly by a public official acting on behalf of the state. State-sanctioned violence also includes violence by a private actor that is authorized or permitted by the state, such as the master’s beating of the slave. The slave is always susceptible to violence from the master, even if the slave does as he or she is told. The distinction between the arbitrary beatings that slaves experience at the hands of their master and the punitive canings meted out by the state that is consequent on the breach of a rule is that, in the former case, the slave could not have anticipated that they would be liable to a beating, “whereas in the latter case there would have been, at least to some extent, a warning that a beating might occur.”Footnote 40 The slave is denied any protection from arbitrary violence. The slave’s condition is not one that is under law. To live under law is to be able to “avoid being exposed to violence or physical restraint by observing the relevant rules,” whereas “slaves are exposed to the use or threat of violence and physical restraint at almost any time, and for any reason.”Footnote 41
Some might object to parts of the above analysis on the following grounds. First, there were occasional laws that required the punishment of slaves, which seemed to suggest that slaves were treated as pro tanto legal subjects. Not quite. The better way to understand these punitive laws is as the imposition of a duty on an official to punish the slave when certain conditions obtain. These conditions trigger the incidence of a duty incumbent upon a duty-bound official: they are the occasion for the discharge of a duty by a third party, analogous to the situation where the detection of certain infectious diseases in livestock activates a duty on the part of officials to carry out a culling of the infected animals.Footnote 42 Both the infection of livestock and the misdeed of slaves are things that happen in the world, which the law takes note of and directs its officials to act. The purpose of the law here is primarily directed, not at the slaves, but at the officials, directing them to perform a duty. Note, also, that the slaves could have been beaten (‘punished’) by their masters anyway, with or without those laws. If anything, these punitive laws were meant to override the private property rights of the masters over their slaves, just as the mandatory culling laws were meant to override the private property rights of the farmer over their farm animals. These so-called ‘punishments’ are not criminal prosecutions. As non-legal persons, slaves cannot be prosecuted for crimes. However, that does not mean that the slave cannot be ‘punished’ by beating. The master can beat the slave (for this reason, or for no reason at all), but that is not criminal prosecution, and the beating is not criminal punishment under law.
The second objection might be that there were laws that seemed, on their face, to advance the welfare of slaves. Rawls addresses this objection by arguing that “[l]aws that prohibit the abuse and maltreatment of slaves are not founded on claims made by slaves on their own behalf, but on claims originating either from slaveholders, or from the general interests of society (which do not include the interests of slaves),” for “slaves are human beings who are not counted as sources of claims, not even claims based on social duties or obligations, for slaves are not counted as capable of having duties or obligations.”Footnote 43 In this respect, slave cruelty laws are analogous to animal cruelty laws. Just as an animal owner cannot do certain things to the animal that they own, so a slave owner cannot do certain things to the slave. Both are restrictions on the private property rights of the owner. Restrictions on private property rights in relation to certain types of property in the pursuit of policy objectives are not at all unusual. For example, zoning laws routinely restrict the private property rights of landowners, and gun control laws routinely restrict the private property rights of gun owners. One should not confuse restrictions on private property rights with the conferral of rights on the property in question. The former does not lead to the latter.
An historical example might serve to illustrate this point. In ancient Rome, some masters would leave their sick slaves in public places to either recover or die. They would leave the slaves to their fate and let nature take its course. If perchance the slave were to recover, the master would return to reclaim the slave as their property. The Emperor issued an edict to stop this practice by removing the master’s right to recover slaves who were neglected in this way.Footnote 44 One could easily imagine the public nuisance, let alone dangers to public health, that such practices would cause. As the ancient Roman jurist Gaius rightly pointed out, “the central concern of such measures was not to improve the condition of slaves, but to curb abuse in the right to administer property.”Footnote 45 The slave remained an object, a property in law. This edict did not alter that fundamental fact, least of all to transform the object into a subject.
3. Why Is That Denial Morally Wrong?
The denial of the good of law to the slave is morally wrong because it leaves the slave in the state of nature, with all the moral hazards that it brings. The state of civil society is marked by jural relations, with its attendant moral benefit, which is denied to those in the state of nature, who are left out in the cold. The first claim connects the form of law with the formation of freedom, while the second claim connects law’s objectivity with legal subjectivity. The third, and final, claim will connect the state of nature with the state of civil society. Contrary to some popular accounts of the state of nature and the state of civil society, which portray them as mutually exclusive, this section will claim that both states can exist simultaneously in the same territory and within the same community.
For the slaves, the legal system of their masters is not a legal system, but “a regime of unrestrained violence.”Footnote 46 The slaves have no legal rights whatsoever under that system, which means that they are susceptible to violence from their master anytime, anywhere, anyhow. While their masters exist as legal subjects in a state of civil society with each other, slaves exist in a state of nature in relation to their masters. Jural relations constitute the state of civil society. Slaves, by being outside of jural relations, remain in the state of nature. As this paper has argued in Part I above, the Hohfeldian matrix of rights, liberties, powers, and immunities is a matrix of jural relations, which only exists within a legal order in the state of civil society. It is non-existent in the state of nature.
Freedom as non-domination is what the law gives its subject in the state of civil society by placing the subject within the matrix of jural relations. Freedom in the state of civil society is civic freedom. It enables one to live in community with others, without being subject to their will. By being a subject of law, one is not then subject to the will of others. This condition in the state of civil society is in stark contrast to the condition in the state of nature, where one is constantly exposed to violence, or the threat of violence, from others. The person in the state of nature lives without security, and is in “continual fear and danger of violent death,”Footnote 47 which is the condition of the slave in relation to their master. The dignity of the person living in the state of civil society is secured through the law’s protection of their bodily integrity. In contrast to the person in the state of civil society, the slave in the state of nature has a body, but no integrity.
Law is a distinctive mode of human association. A legal community is a community of persons who have adopted law as their mode of interpersonal association, that is, as their mode of association inter se. By adopting law as a mode of interpersonal relations, there has been a “change from one type of ethical life to another.” Footnote 48 Fuller contrasts the reciprocity of legal relations with ‘managerial direction,’ in which the relationship between superior and subordinate is marked by a one-way projection of power from the former to the latter.Footnote 49 The directives issued by the superior to the subordinate could be as ad hoc and arbitrary as the superior wants them to be. The direction from master to slave must surely count as one of the clearest and most extreme manifestations of managerial direction. The relationship between the slave owner and the slave was not contractual with reciprocal benefits and obligations, just as the relationship between farmers and their livestock was not reciprocal. The relationship was unidirectional and it was one of ownership, that of the former owning the latter. An ancient Roman agricultural manual divided the range of instruments that farmers could use to till their land into three classes: the articulate, the inarticulate, and the mute—“the articulate comprising slaves, the inarticulate comprising cattle, and the mute comprising vehicles.”Footnote 50
In the relation between master and slave, we have two moral persons, but only one legal person. The master is a moral person who is also a legal person, while the slave is a bare moral person. The slave exists entirely in the state of nature, while the master exists in two realms simultaneously. The master exists in the state of nature in relation to his slaves, but in the state of civil society in relation to his peers, namely, other free citizens. The master has one foot in the state of civil society, and one foot in the state of nature. On this account, the state of nature and the state of civil society can coexist in the same territory at the same time, which is a departure from most standard accounts, which tend to treat them as mutually exclusive. Slaves need not be viewed as sub-humans in order for this state of affairs to hold true. The masters can recognize their slaves as fully human, as they did in ancient Rome, where slavery was not tied to notions of racial hierarchy. Although recognizing them as humans, the ancient Romans nonetheless treated them as property, albeit as ‘property with a soul.’
This idea of the slave existing in the state of nature is neatly illustrated with the historical example of the acquisition of slaves through war and conquest in ancient Rome. “The Latin words for power (potestas) and slave-ownership (dominium) could be regarded as synonymous, which means that, above all, slave-owning was an expression of power.”Footnote 51 The power of the master over the slave was the power over life and death: vitae et necis potestatem. It had its origin in the victor’s right to kill the vanquished in battle. Instead of killing the vanquished, “if the victor spared the vanquished and enslaved them instead, the latter continued to live, but only in a condition of suspended death at the discretion of the former.”Footnote 52 The slaves then owed their lives to the master, who owned their lives. Their continued existence depended on the will of the master, who could do with them as he pleased, including selling the slaves to other owners. As the chattel of the owner, the slave became the living dead. The Digest unequivocally equated slavery with death: there was a ruling in the Digest that “the marriage of a free person came to an end if enslavement occurred, just as if death had intervened.”Footnote 53 The ‘living dead’ was produced by killing in law those who remained in fact alive.Footnote 54
In war, both sides descend into the state of nature, which Hobbes defines as a state of war. To the victor go the spoils. The spoils consisted not only of whatever the victor could seize from the enemy, but also of the enemy themselves.Footnote 55 The spoils of war included seizing the enemy and enslaving them. The captives, who were enslaved, remained in the state of nature vis-à-vis their captors. While the victors returned triumphant to the state of civil society, the vanquished got stuck in the state of nature when they were enslaved. They entered the state of nature through the battlefield, and remained locked in it through slavery. The Romans were clear on the point that slaves were not criminals and slavery was not a punishment for crimes, for to treat them as criminals would be to treat them as legal subjects. Criminal law applies only to legal subjects in the state of civil society. Slaves are the objects of property law. The jural relation that exists in property law is not between the master and the slave, but it is between the master and the other legal subjects (namely, the other free citizens) in relation to the exclusive use and possession of the object in question.
Slaves lived in constant fear of their master’s violence, but the same was also true vice-versa, which further proves the point that their relationship was locked in the state of nature. Masters lived in constant fear of slave revolts, either large-scale rebellion across the territory or domestic rebellion within the household. Tot servi, quot hostes—you have as many enemies as you have slaves. This truism aptly expressed the antagonism and the fear that the masters held against their slaves. Gaius Cassius warned his fellow senators that “you will never coerce such a medley of [enslaved] humanity except by terror.”Footnote 56 The master and the slave were trapped in an antagonistic relationship, which began with the initial war and conquest and continued into slavery. When the conquerors won, there was a ceasefire, but the state of nature that the war opened up remained open. There was always the risk of the resumption of hostility, which was most dramatically manifested in slave rebellions, which could break out anytime. Slave revolts were merely the continuation of the unfinished business of warfare. As Hobbes made clear in the Leviathan, slaves “have no obligation at all; but may break their bonds, or the prison; and kill, or carry away captive their Master, justly.”Footnote 57
Being in the state of nature, slaves have neither legal nor moral obligation to obey the state, or more immediately, their master. They might choose to do so for sensibly practical and pragmatic reasons. Their compliance with the law might be based purely upon the ad hoc balancing of different threats.Footnote 58 Compliance in this situation does not signal acceptance—neither their acceptance of the legal system, nor the legal system’s acceptance of them. Without legal personality, they have no standing whatsoever to challenge the application of the law, no avenue to present legal claims, and no recourse to appeal. Like the person being held at gunpoint, they may be obliged, but they are not under an obligation, to follow the command of the state or their master. They often did, not out of obligation, but out of fear, in order to avoid a worse fate that might befall them if they did not. Weighing up the different pros and cons, they might have decided, sensibly, that the best thing to do was simply to conform.
In his chapter on slavery in the Social Contract, Rousseau opens with the line that “no man has a natural authority over his fellow.”Footnote 59 In the state of nature, there is only might, not right, of one over another. There could be power relations in the state of nature that are acquired by force, but they do not amount to relations of authority. They do not amount to relations of authority because those in power do not have the right to command, and those subject to their power do not have the duty to obey. Later in the same chapter, Rousseau goes on to address specifically the moral relationship between the master and the slave by arguing that “the state of war continues to subsist between them: their mutual relation is the effect of it, and the usage of the right of war does not imply a treaty of peace—a convention has indeed been made, but this convention, so far from destroying the state of war, presupposes its continuance.”Footnote 60 To that remark, one might add that the convention, insofar as it exists, only exists among the victorious masters, not between the victorious masters and the subjugated slaves.
The picture that I have painted of the normative landscape entails two normative viewpoints, one from the perspective of legal subjects and the other from the perspective of moral persons who are not legal subjects. Both viewpoints have to be taken into account in assessing the lay of the land. Legal subjects have legal relations with one another: law exists for them inter se.Footnote 61 The normative viewpoint is wholly different from the perspective of moral persons who are not legal subjects, namely, slaves. Slaves are literally outlaws: they live outside of law. As chattel, they might be the lawful property of the master, but as moral persons, they are law-less persons. They are law-less, not in the sense that they can do whatever they want, but in the more literal sense that they are without law. If law is a set of relations, then it is entirely conceivable and comprehensible that a subset of the population might be in such relations inter se, while another subset of the population are not. Legal relations need not apply to all and sundry indiscriminately. It is not all or nothing. We need to be more discriminating in deciding whether law exists or not in relation to any given subset of the population, especially in cases where the law itself discriminates between human subjects and human objects, as it does in the case of slavery. Within the legal system that exists among legal subjects, certain moral persons are designated as property. From the perspective of the legal subjects, there is a legal system in existence, and within that legal system, there are human chattels. However, things look very different from the perspective of the slaves themselves. From the perspective of the slaves, there is no law, but only brute force.
In the ancient world, there was a pathway through which the slave could be brought in from the cold. Manumission brought the slave out of the state of nature into the state of civil society. Once manumitted, they became moral persons with legal personality. The freed slave would be property no more. At a stroke, the freed slave would be “transformed from an object to a subject of rights, the most complete metamorphosis one can imagine.”Footnote 62 Upon manumission, the newly freed person (a newborn at law) acquired the status of the ex-master, so that a freed slave of a Roman citizen would automatically become a Roman citizen, which was a most astonishing rule—it was “the only situation in which a private individual by a purely private act could in effect confer citizenship” on a non-citizen.Footnote 63 Manumission amounted to a private act of naturalization. Just as a freeborn child would receive the citizenship of the father at birth, a freed slave would receive the citizenship of the master at manumission. A slave, who died in law when they were enslaved, would be reborn through manumission. In Christianized Rome, manumission acquired a Christian expression. Manumission was likened to baptism. The manumission ceremony would take place in church before a congregation. Just as baptism admitted a person into the community of Christian believers, so manumission admitted the freed slave into the community of legal subjects.
4. Conclusion
In a state with slavery, a subset of the population are subjects of an existent legal system, while another subset of the population are subject to, but are not subjects of, the legal system. For the latter group, they are cognizable in the existent legal system only as property. They are not bearers of legal rights and privileges. They have no domains of liberty. They are not in jural relations with anyone. As moral persons, slaves exist in the state of nature, with all the perils that it brings. For many of them, life is indeed nasty, brutish, and short. Existing in the state of nature means that they do not live under law, and for that reason, they do not have freedom as non-domination.
The horrors of slavery show that it is good to live under law and it is bad to live outside it. The wrong of slavery is the denial of the good of law to the slave. The withholding of that which is necessarily a good is always a wrong, unless the withholding can be morally justified.Footnote 64 To free a slave is to extend the good of law to the slave by making the slave a subject of law, and not just subject to law. It is only through living under law, and not merely in the presence of it, that the freed slave will be able to have a domain of liberty and enjoy a modicum of freedom as non-domination. The lesson of slavery teaches us that it is good to be in jural relations and to be a bearer of legal rights, which reinforces the antipositivist thesis that law is a moral good.
For the positivist, the way to disprove the antipositivist position on this front is not by pointing out that non-legal-subjects such as slaves do not enjoy freedom as non-domination. The antipositivist can readily concede this point, and even co-opt it to strengthen the antipositivist position, as this paper has shown. The proper way to disprove the antipositivist position on this issue is to identify a legal subject, who is a bearer of legal rights and privileges and who is in jural relations, but who nonetheless does not enjoy a degree of freedom as non-domination. That is the challenge that the positivist has to, and has yet to, meet.
Acknowledgments
My admiration for the work of Nigel Simmonds is clear from the pages of this paper. I am grateful to him for his encouragement to me to find my own voice.
