Summary The law of Persons, W. W. Buckland Chapter 3 to 5
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Principles of Roman Law
Instelling
University Of Turin
Boek
A Manual of Roman Private Law
Contains a complete summary of the chapters from 3 to 5 from the book "A manual of Roman Private Law" by W. W. Buckland. From chapter 3 to 5 can be considered as The law of Persons.
Includes:
- Persons: Slavery, citizenship; the family, persons alieni iures & persons sui iuris
THE LAW OF PERSONS
Justinian’s Institutes declared that the whole of Roman law related either to persons or to things or to
actions. This classification had been taken from Gaius’s Institutes, and even there it seems to have been
already traditional.
Here we are concerned solely with the law of persons. This describes the various categories and degrees of
status in Roman law, and how status could be acquired or lost. The bulk of the law is concerned with the
family, but issues such as slavery and citizenship are also important.
1. LEGAL PERSONALITY
In modern times, a legal person comprises an entity that is capable of legal relationships, i.e. of being the
subject of legal rights and duties. Legal persons include human persons and non-human entities such as
corporations. This clear distinction between natural and juristic persons did not exist in Roman law. Roman
jurists never evolved a coherent theory of legal personality and for them “persons” essentially meant
human beings. Nevertheless, non-human corporate entities were recognised as having rights and duties
too. These were:
(a) Collegia: Mainly private associations or societies often formed as trade guilds and dedicated to a
particular god. They were allowed to hold property, benefit from legal obligations and appear as parties in
legal proceedings.
(b) Municipia (municipalities): These comprised the different types of local community to be found in the
Roman Empire. They could own property, receive legacies etc.
(c) Churches: These became important only after the conversion to Christianity by Emperor Constantine.
Gifts and legacies were often left to churches – these were owned by church members as a body and were
administered by bishops.
(d) Charities: These also became important after the conversion to Christianity. Gifts that were made to
charities were usually administered by bishops.
(e) The State: In the Republic it was regarded that certain types of property not capable of private
ownership, e.g. the sea shore, provincial land etc belonged to the people of Rome. In the early Empire the
Emperor was regarded as the owner, jointly with the Roman people, whilst later the property was regarded
(in theory) as belonging to the State.
2. STATUS
In Roman terminology, the two terms that most clearly correspond with the modern concept of personality
are status and caput: status signified the legal condition of a person in Roman law, and caput, literally a
head, the sum of rights, duties and powers vested in him by virtue of that condition.
Status was made up of 3 elements:
(1) freedom (libertas)
(2) citizenship (civitas)
(3) family (familia)
, For a person to be of full status, he must have possessed all three, i.e. he had freedom in that he was not a
slave, he had citizenship in that he was a citizen of Rome, not a foreigner, and he had family in that he
belonged to a Roman household.
Loss of any of these elements resulted in capitis deminutio (a loss of status):
The greatest loss of status was when a person lost his freedom (this necessarily involved the loss of
citizenship and family rights as well).
The “middle” change of status comprised the loss of citizenship but not freedom. This usually
carried with it the loss of family.
The least change of status was occasioned by loss of family alone (most frequent in practice).
The 3 elements of status – freedom, citizenship and family rights – constitute the law of persons.
3. FREEDOM AND THE LAW OF SLAVERY
“Certainly the great divide in the law of persons is this: all men are either free men or slaves” (D.1.5.3). In
this classification by Gaius found in the Digest, we see that there is no intermediate category in Roman law.
“Slavery is an institution of the ius gentium, whereby someone is against nature made subject to the
ownership of another.” (D.1.5.4.1)
There are 3 elements in this definition:
(1) slavery is part of the law of nations
(2) it is against nature
(3) a slave is an object of ownership belonging to another
The Roman jurists considered the institution of slavery to be part of the law of nations (ius gentium) since it
was recognised in all ancient societies. However, they did not regard it as part of natural law (ius naturale).
Following the Stoics and contrary to the teachings of Aristotle, they believed that all men were born free;
accordingly, slavery was not something dictated by common sense and could not be part of natural law.
The description of a slave as an object of ownership is important; in many ways slaves were regarded as
property rather than human beings. They could be acquired, owned and disposed. Yet at the same time,
the human personality of slaves was recognised to some extent by the law.
The definition holds that a slave was in the ownership of another. This was broadly true, as most slaves
were owned by individual masters. But this was not always the case. There were also penal slaves, public
slaves etc.
The slave in Roman society
The overall treatment of slaves varied from period to period. In early Rome there were few slaves and they
were treated generally well – despite being wholly at his master’s disposal, the slave was little worse off
than members of the master’s family. The successive wars of conquest in the 3rd C. BC led to an increase in
the number of slaves, who now became cheap and disposable. Their treatment at this time deteriorated.
The slave revolt led by Spartacus in 73 BC, which took two years to be suppressed, led to the passing of
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