Robotic Rights, Roman Law, Artificial Intelligence Law, Activism
Roman law is not the study of legal history. Roman law is the prediction of future legal developments through reference to the past. The French Civil Code is built on the fundamentals of Roman jurisprudence, pruned and adapted over time for the modern-day. The German Bürgerliches Gesetzbuch (BGB) follows a similar history. Dutch-Roman law remains in operation in South Africa, while even the Common Law, whether in England or elsewhere, has been known to adopt Romantic principles. Let us see if we can use the laws of Rome to make another prediction now.
Slavery was a fact of Roman life. People were property. Gladiators fought as men in chains, their only motivation to leave simply as men. Vineyards were filled by men, women and children, collecting grapes on the Italian hillside for expensive wines they would never have the opportunity to drink. Slaves were the cogs of Rome. From the Senate to the Colosseum, the marvels of the Roman Empire were the marvels of the slaves. And with any legal system, the Romans had laws governing their property. How can slaves be bought and sold? How can slaves be treated, and what does the law prevent masters from doing to their property? How can a slave be made? I will not go into the various details of Roman slavery laws. Understanding every obscure principle is of little use when trying to consider Roman principles as a guide to the modern-day. What I will do is attempt to explain the essential concepts as they become relevant.
Ulpian makes an important observation in trying to explain why slaves were not produce for the purposes of usufruct. For the many of you not accustomed with the modes of acquisition under Roman property law (because who would be), ceding a usufruct grants the usufructuary rights over a specific object. That object may be land or movable, with the right allowing the usufructuary both use of that object and ownership of any fruits that object may bear. If I have the usufruct of an apple tree, I own any fruits that tree bears once I have collected them. If I have the usufruct of a house, I own any money made while that house is rented from the moment I collect the rent. If I have usufruct over a goat, I own any milk that goat produces, any wool taken from the goat and any offspring that goat may have. If slaves were simply another form of livestock under the law, then surely the law would grant me ownership of any children that slave may have. The view is not an accurate statement of Roman law. To paraphrase Ulpian, human beings cannot be produce, for it is for the benefit of human beings that all produce is made.
Take my earlier examples. Apples are collected for human beings to eat. Houses are rented so that one human being can profit from another’s need for accommodation. Milk is collected to drink, wool made into clothing and offspring breed so that the agrarian economy can continue for generations. Produce made by slaves is subject to usufruct as slaves themselves cannot by their nature own property. A table is not said to own the chairs around it. Nor does saying that a company can own premises, stock and machinery offer any assistance. Companies are a peculiar type of person, lacking faces or hands or minds but walking the legal landscape with the rights to contract or own. The produce OF slaves is, however, a different matter. When witnessing a birth, we do not say that the mother owns the resulting child. There is an obligation to care for the child, to love them and watch them grow into an adult, yes, but there is never ownership. Ownership of children as slaves thus could not be a title acquired by the laws of nature, for even the lion, chimp or dolphin is not said to own their respective cub, oscar or calf.
Another question is then raised. Why were slave children not born free? A system of slavery could theoretically exist where there was slavery without enslavement from birth. Enemies of Rome captured in battle were enslaved. Servitude was the original punishment for thieving freemen, and debt bondage was rampant in the early beginnings of the Republic. Modern penal labour does not extend to the children of convicts. And yet the son followed their mother’s status. Being the bastard child of the Emperor himself did not save you from being property if you were born from the loins of a slave. Explain the logic behind that.
Under the ius naturale, all human beings are born free. Nature intended that human beings have the freedom and autonomy to make their own decisions, their own mistakes and to benefit from their own labours. That freedom could, however, be stripped from individuals by the law. Prisoners of war were enslaved as a method of humiliating Rome’s enemies and quashing the risk of rebellion. As such, should a captured slave escape and find their way back to their home nations, the collar of slavery constructed by the law was removed.
Thieves were enslaved to those they had wronged as vengeance for the insult and damage done. Only by the good grace of those they had wronged, now their master, could the thief receive freedom.
As the law developed, those who sold themselves to their debtors were made free upon repayment. Slavery here formed only the function of collateral, removing the risks associated with lending money.
Enslaving a child due to a bad roll of the dice of fate does, however, appear a unique injustice. The daughter was not even being judged for the sins of their mother. The crime could have been a grandmother's, or a great grandmother's, who only ever mated with freemen, the same being true of their daughters and their daughters after that. Children do no wrong through their own birth. To tarnish their lives with the brand of slavery even before watching, waiting to see whether the child will, in some way abuse the gift of autonomy, is the height of injustice. So tell me Ulpian, Gaius and Justinian, why? Justify yourselves.
Sadly, the answer is less than satisfactory. Children were enslaved not under the ius naturale but the ius gentium. It was not nature that imposed slavery but the artificial law of nations. A slave’s children were slaves because that was the law followed by all nations. Perhaps the greatest wrong a people can commit was justified by saying, but everyone else is doing it too. Toddlers eating glue because your friend Sam is doing the same, have no fear. Teenagers drinking underage or smoking weed because you don’t want to be the only dull person at the party, rejoice. When your parents ask you to explain yourselves for your actions, simply use the excuse of the Romans. But everyone else is doing it too. Bravo. So much for the birthplace of civilisation, of civilised law.
Murder is wrong, no matter how many people commit it. Gangrape is no less culpable than rape performed by a single man. Slavery does not get special treatment. Every nation is to blame, the Gauls, the Romans, the Greeks, the Egyptians, Carthaginian the and all those other places so numerous to name. Do not commit the wrongs of your neighbours. Be better.
Fixing historical wrongs is not possible. Nations have developed. Slavery is no longer the same unifying pillar of all known law. If anything, the law of the ius gentium is now the prohibiting slavery. For that, let all of humanity celebrate. Development does not, however, erase the evils of the past. For those evils to be atoned, we as a people must ensure the same plight inflicted on the children of Rome never happens again. Guaranteeing humanity does not regress is relatively straightforward. Don't repeal the laws which abolished slavery. Don't allow our leaders to remove our countries, our homes, from the international agreements designed to protect us. Don't forget.
What if I were to argue that slavery is not a wrong limited to humanity. Slavery is the law subjecting a person to certain constraints such that they become the property of another. Ergo, any person can be a slave. Homo sapiens are the most apparent form of people, but does that make them the only possible people. Law might even limit natural personhood to homo sapiens, but that does not make the law correct. Gaius argued that theft was not manifest because the law made it such but because the theft was manifest by nature. The law cannot make or unmake thieves, only choose whether it shall punish thieves or not. I take an apple, and yet the law decides to punish an innocent bystander for the crime in my stead. It is I, not the bystander who remains the thief, though I go unpunished. Equally, a person remains a person whether the law wishes to see them or not. There is no denying that the gladiators and grape harvesters of Rome were people. Nevertheless, the law denied them their rights as people. If other people exist, people who exist without being homo sapiens, then only by ensuring that the law recognises their rights can the sins of Rome be forgiven.
Modern lawyers are now on the brink of having to resolve the same problem faced by the Roman jurists of old. Robots do no wrong by their mere creation. Apes do no wrong by being born to apes, although their intelligence may be better suited to a human child. Shall we make the same mistake as the Romans, whose Empire toppled to the ground so long ago? Will the law become nothing more than an invisible nose, choking liberty without good cause? Is the fate of the law to artificially constrain the gifts nature has bestowed on all people, irrespective of race, gender or indeed species. Or do we, as the law's future, have the chance to find a better way, a way of justice. Only time will tell.