This is a book of enormous erudition and valuable insight. But—spoiler alert!—it does not really chronicle “The Transformation of Ownership in the Western World,” the alleged alteration of Masters of Slaves into Lords of Lands. James Whitman, a professor at Yale Law School, candidly acknowledges that his book “is an exploration of ‘social imaginaries,’ not of the quotidian workings of Roman rule … I offer no original research. My purpose is only to survey the work of historians whose writings suggest aspects of Roman rule that give it the look of the same sort of ‘chieftainship over people’ so clearly present in Roman property law …Taking stock of such affinities is, I believe, an essential task in legal history” (p. 209). This reviewer agrees that “taking stock of such affinities” is “an essential task in legal history,” and in fact Whitman’s survey of aspects of Roman property law does generate important observations about modern intellectual history and about contemporary civilization—but only slight (if any) additions to either our understanding of Roman law or of Roman history. Whitman, of course, should be praised for the excellent book that he has actually written, and not faulted for not writing a book from which Romanists or non-juridical historians of antiquity might have taken greater gain. Yet, From Masters of Slaves to Lords of Lands is nonetheless itself a model as to how academic research can deal profitably with the continuing, and deleterious, segregation of legal studies from Roman historical scholarship proper.
Whitman sees his book as “an extended essay on the history of the transformation in the legal imagination … of crucial teachings whose conceptual coloration has changed over the long centuries of the Western legal tradition” (p. 27), especially concepts relating to ownership and enslavement. While Part I of the volume (Chapters 1 through 5) is explicitly devoted to Roman notions such as occupatio, dominium and dominus, usufruct, patres familias, res mancipi/res nec mancipi, even the ostensibly non-classical Part 2 (Chapters 6 through 9), constituting the remainder of the volume—dealing with “the legal historical longue durée (a centuries-long process of cultural change)”—recurrently explores Roman Antiquity (“whose consummation cannot be dated before the late eighteenth and nineteenth centuries”), and recurrently incorporates discussions of key issues in Roman law (for example, “the ownership of humans in the slave economies of Antiquity” [Chapter 7], “the decline of classical cities” [Chapter 8], “the failure of the Roman jurists to find justifications for slavery beyond the mere fact of victory” [Chapter 9]). In fact, Whitman’s entire volume is essentially a well-written, thoroughly-reasoned work on Roman law’s influence on a vitally important but narrowly circumscribed aspect of the modern world—slavery in its formalistic, that is, legalistic contemporary garb. To be sure, in his exploration of “social imaginaries,” Whitman offers useful discussions on an impressively disparate multitude of important subjects—the anthropological study of territoriality, gift-exchange principles, governance strategy, economic approaches to pre-colonial Africa, theoretical ethology, Demsetz-Hardin analyses of the economic evolution of property law, esoteric theories explicating feudalism, Marxist and Nazi interpretations of Roman law, studies by sixteenth-century French jurists of manorial rights, theoretical explications involving the 19th century German School of Historical Legal Studies associated with von Savigny, mediaeval property law, and numerous other arcane matters. Yet, his discussion of important concepts in Roman law is sometimes somewhat superficial. For example, most of Whitman’s discussion of dominium in Chapter 3 is devoted to a number of superseded scholarly interpretations, “none of [which],” he acknowledges, “feature much or at all in the current literature on Roman law” (p. 138). Indeed, Whitman struggles to explain Roman legal concepts of “ownership” that in their writings Roman jurisprudents chose to leave pragmatically elastic and definitionally imprecise: as Johnson has noted, “ownership (dominium) in Roman law is difficult to define, and the Romans themselves did not trouble to do that.”[1]
But Whitman’s overarching contribution is his demonstration of how the change in the cultural conceptualization of “ownership” from a fixation on control of human beings to suzerainty over real estate—“the consequence of a slow, and essentially unconscious, transformation in the legal imagination”—ultimately led to “the most momentous development in the making of modern law, the end of lawful private enslavement” (p. 394). Prior modern scholarship has tended “to credit that upheaval in our perception of justice to the conscious efforts of Enlightenment reformers and of Christian abolitionists,” and/or to economic motivations in which the “maximization of income and the like” no longer justified the perpetuation of juridical slavery. Whitman demonstrates, however, how the “cultural element”—the transformation of the ideology of ownership—likewise played a major role in the abolition of private servitude. His volume is a persuasive exposition of this thesis, and a more than adequate recompense for any deficiencies in substantive discussions of Roman law topics.
Most importantly, perhaps, this book offers a potential path of heuristic escape from the frustrating trap in which traditional classical studies and contemporary Roman juridical scholarship now find themselves. Roman legal sources have survived in such profusion that Arnaldo Momigliano (who was the advisor for Whitman’s 1987 Ph.D. thesis) has insisted that the scholar “who does not know Roman law does not know Roman history.”[2] Nevertheless, “throughout the 20th century, Roman law was mainly an enigma for historians and classical philologists alike.”[3] Perhaps the greatest impediment to progress in understanding Roman slavery has been the long-standing academic segregation of juridical and non-juridical disciplines dealing with Classical Rome. Ancient historians—often lacking even superficial “aware[ness] of the wealth of material about slavery provided by Roman legal texts,” [4] almost always unfamiliar with how to utilize juridical sources—have expressed “skepticism”[5] concerning the value of legal evidence for Roman historical studies, tending to treat jurisprudential material cursorily, or even to ignore it. Even Jane Gardner, a distinguished Romanist, has conceded that “(m)ost detailed studies of Roman law…are unreadable, and most are unread, save under stress of necessity, by historians.”[6] In turn, “most scholars of Roman law…tend to treat their material as ahistorical.”[7] Romanists, seeing Roman law as a “conceptual system” offering “timeless values” not necessarily related to historical Rome,[8] strive instead to analyze and explicate Roman juridical rules and principles in vacuo, paying only minimal attention to societal contexts and evidence,[9] in practice creating an “autonomous discipline”[10] independent of the oft-changing factual peculiarities of the “actual” Roman polity and civilization. For historians, Roman law material “often only becomes intelligible after one has worked one’s way through the hard shell of technical jargon and dogmatic subtleties.”[11] Few non-legal scholars, however, have the skill (or the inclination) to attempt to puncture this shell. In turn, Romanists generally have neither the skill (nor the inclination) to utilize Roman juridical sources to explicate issues of interest to non-legal historians of antiquity or even to re-orient juridical aporias into questions of more general interest.
Whitman, mirabile dictu, has proffered a third path, on which Roman legal sources are employed by non-specialist scholars to achieve insights of major significance to the contemporary world. Only a Romanist or a Classicist, perhaps, could be unappreciative of such a gift.
Notes
[1] Roman Law in Context (2nd ed. Cambridge 2022), 65. For the conflict between commercial reality and legal theory relating to “ownership” of property—and its resolution through “legal fiction”—see Edward Cohen, Roman Inequality: Affluent Slaves, Businesswomen, Legal Fictions (Oxford 2023), 50, 59-60.
[2] In George Grote and the Study of Greek History (Inaugural Lecture, University College London, 1952).
[3] Sven Günther, “Roman Law: Opening the System.” Journal of Ancient Civilizations 33 (2018): 267-82.
[4] Thomas Wiedemann, Slavery (Oxford 1997), 19.
[5] Kyle Harper. Review of Henrik Mouritsen, The Freedman in the Roman World, American Historical Review 117 (2012): 909-10.
[6] Women in Roman Law and Society (Bloomington, 1986), 1, 2.
[7] Paul du Plessis, John Cairns, eds., Beyond Dogmatics: Law and Society in the Roman World, Edinburgh Studies in Law (Edinburgh, 2007), 3. Romanists’ tendency toward ahistorical approaches has recently abated somewhat. See, for example, the valuable studies on women’s involvement in the Roman economy authored by Éva Jakab, Professor of Roman Law, Budapest, Hungary, and the work of Bruce Frier and his sometime students, including Thomas McGinn and Dennis Kehoe ––– classicists who have acquired, and have made use of, a good knowledge of law and legal materials. Oxford University Press has now introduced a new series of monographs “devoted to the interaction between legal history and ancient history” (“Oxford Studies in Roman Society & Law”).
[8] Miklós Könczöl, “The Relevance of Roman Law: A Look at Its Roles and Ideologies.” Revista Crítica de Ciências Sociais 112 (2017): §3.
[9] Andreas Fleckner. “The Peculium: A Legal Device for Donations to personae alieno iuri subiectae?” In Gift Giving and the ‘Embedded’ Economy in the Ancient World (Heidelberg, 2014), 218.
[10] Luuk de Ligt. “Roman Law and Roman Economic History: Some Methodological Problems.” In Diritto romano e economia: Due modi di pensare e organizzare il mondo (nei primi tre secoli dell’Impero) (Pavia, 2018), 219
[11] Martin Schermaier, “Introduction.” In The Position of Roman Slaves: Social Realities and Legal Differences (Berlin 2023), v.