It is an interesting moment to be following scholarship on Roman law. Prognostication obviously lies beyond our power, and hindsight will doubtless grant others clarity, but for some time now it has seemed that Roman legal scholarship was approaching a tipping point where it might be possible, finally, to bridge or explain the gap between law-as-written and law-as-practiced in the Roman world. Work on legal pluralism, on provincial law, and on practical enforcement have all moved the needle in this debate in recent years, bringing us collectively closer to understanding what law worked, as well as where and under what circumstances. Edward E. Cohen’s latest book, Roman Inequality, contributes to this discussion with the addition of “legal fiction,” a concept that he uses to explicate the space between legal facts and the more-complicated realities of, particularly, Roman economic life.
The book posits that some marginalized figures in Roman society enjoyed a privileged, if contradictory, status under Roman law. Though they might, due to enslavement or gender, be denied the full rights of citizenship, there were provisions in law that allowed some in these positions access to economic advantages and forms of agency that were unavailable even to their male, freeborn peers. These were not, Cohen argues, loopholes nor accidents of the preservation of legal texts, but intentional and recognized inconsistencies that were tolerated to support commerce. Cohen uses the term “legal fiction,” building on the Roman concept of fictio—legal manoeuvres that, while untrue, nevertheless brought about a desired outcome—to encompass how ancient jurists balanced contradiction and built consistent inconsistency into their legal system. This intervention builds an additional layer of complication into the study of Roman law, but the contention, that some unfree people enjoyed more legal privileges than those freeborn, is well-supported by the evidence mustered, and reveals fascinating diversity in both Roman law and the experience of the marginalized in antiquity.
The work comprises an introduction, which addresses several limitations of our evidence and provides basic context and caveats for the main textual sources, followed by five chapters. The first chapter begins by addressing the contradiction that lies at the heart of the work: the poverty of many free Romans and the wealth of many in slavery and those lately liberated. Central to the chapter are analyses of the legal principles that encouraged slave owners to entrust business to enslaved and freed workers, particularly a careful reading of the laws related to agency and liability.
Chapter two zooms in on the legal and practical standing of the peculium, both during and after enslavement, making a persuasive argument that this property was controlled by the enslaved and was retained by them after liberation. Despite the legal contradiction of “property” owning property, Cohen convincingly argues that Roman jurists chose to actively ignore the issue, defending the claims of the enslaved and accepting the reality of economic practice. It is in this chapter that he emphasizes the utility of “legal fiction,” and the willingness of Roman jurists to turn a blind eye to inconsistencies within their legal and economic systems.
In light of freedmen retaining their peculium after liberation, chapter three offers an explanation for why slaves were freed and allowed to retain at times substantial wealth upon manumission: namely that some enslaved people had sold their freedom and consequently held a legal right to liberation. Contractual obligation, Cohen argues, helps to explain that there was a legal, rather than economic, motivation for freeing skilled slave laborers. This contract, and a guarantee of access to a peculium, provided an economic incentive for poor but skilled workers to accept or even seek out a position in slavery. This argument liberates the Romans from at least one accusation of economic irrationality and conforms well with the extant legal evidence, though, as Cohen notes, it is impossible to assess the scale of the practice of self-enslavement.
The fourth chapter addresses women in business, explaining the legal balance between essentially gender-neutral economic laws and the customary exclusion of women from certain positions. The chapter includes an excellent breakdown of the legal rights of women with regard to business, as well as the argument that male guardianship did not pose a significant hindrance to female economic activity. The chapter is also notable for its discussion of the powers and privileges of the mater familias and its strong argument for the involvement of women in banking.
The fifth and final chapter addresses imperial freedmen and the enslaved workers of the imperial household. The chapter is mostly concerned with the power, or perhaps better the influence, of these figures. Though Cohen acknowledges that most imperial slaves and freedmen were kept far from public administration, his emphasis is on a handful of well-documented figures from the 1st century CE. Cohen makes the interesting observation that while imperial servi and liberti should have been governed by the same laws as their non-imperial counterparts, the Roman system seems to have viewed these workers as attached to the office of princeps rather than as the heritable property of the individual emperors, citing the example of the imperial servants of Caligula being transferred, seemingly without comment, to Claudius, who was his successor but not his legal heir. The chapter, and book, concludes by noting the elite distaste for imperial freedmen and the linguistic slippage by which liberated people continued to be referred to as slaves.
Though its analyses are clear and many of its contentions convincing, Roman Inequality struggles to situate these points within a wider context and feels disconnected from contemporary and historical debates. In particular, the absence of a conclusion of the book is keenly felt. While the first three chapters follow a consistent line of argument, the last two chapters, though thematically relevant, are not directly connected. The last chapter, in particular, strays from the analysis of legal texts that characterizes the other chapters and does not immediately speak to what proceeds it. Not only is the reader left to make what connections they will among the chapters, but the book also fails to gesture toward the possible implications of this work for the fields of Roman social, economic, and legal history more generally. Cohen’s intervention in the latter field strikes me as the most critical, but it is unclear to me if he would (or will) agree with that assessment.
Moreover, the connection between these chapters and the main title is at times opaque, as it is not clear what Cohen means to say about “inequality.” Aside from one reference to the Gini coefficient (p. 30-31), the book does not engage with modern work on economic inequality. Discussions of wealthy freedmen and businesswomen certainly complicate traditional assumptions about the correlation between legal status and economic prosperity, but, as Cohen admits, the lack of statistical information makes it difficult to determine scale: how many freed people enjoyed the kind of wealth he describes? How many women were actually engaged in business? Are we looking at pervasive inequality or were these different “elites” commonplace? Cohen focuses on economically advantaged figures of untypical social backgrounds and gender, but inequality is at least partly about contrast, and Roman Inequality does little to clarify either the extremes or the scale of the phenomena under consideration.
In part, this is exacerbated by a lack of engagement with the rhetorical aims of the sources involved. While Cohen acknowledges in his introduction the complications of chronology and editorializing that hinder the study of Rome’s major legal texts, he has relatively little to say about the rhetoric of those or other texts. Tacitus’ accounts of Claudian and Neronian freedmen in the last chapter, for example, are largely unquestioned, and at no point does Cohen reckon with the fact that it is significantly easier, even at the remove of a generation, to critique a servant for the failings of their master, than to attack the master himself. Inscriptions, too, are treated uncritically, without accounting for the bias inherent in their creation: the cost of commissioning them necessarily means that the poor are underrepresented. A higher percentage necessarily come from the wealthy freedmen Cohen spotlights.
A final critique, which, though minor, remains important: for a work that is, in large part, dedicated to enslaved or formerly enslaved figures, Roman Inequality is largely, and seemingly intentionally (p. 26-27), silent on the issues of dehumanization and violence. While it is Cohen’s intention to reveal the legal mechanisms and fictions that permitted some enslaved people to acquire and retain wealth, an opportunity that was often unattainable for the free poor, his discussion of the desirability of enslavement, including voluntary enslavement, requires consideration of the physical and sexual violence that could be used against those whose freedom was taken from them (or was surrendered). This is an essential distinction between slavery and other forms of labor, and a key component of the macula servitutis, the stain of slavery (considered only once, p. 71), that followed freed people for life.
Roman Inequality is an important analysis of the law surrounding slavery and a convincing explanation of the economic dominance of enslaved, freed, and, in some cases, female workers. It will be a useful work for Roman economic historians and its “legal fiction” is an invaluable piece of the legal-historical puzzle. Roman acceptance of contradictory legal concepts has been under-appreciated, and Cohen’s case is clear and persuasive. While I am not convinced that its true subject is “inequality,” as such, the book advances our understanding of the real-world implications of Roman law and provides new insights that have much to contribute across multiple fields of study.