Greece, Rome, and the Bill of Rights Read Online Free PDF Page A

that among the Romans it had nothing like its modem importance. 58
More precisely, what we do not see anywhere in the Corpus iuris civilis is an expression of the belief that natural law is superior to positive law. This means that if Antigone had been a Roman rather than a Greek when she claimed to be obeying the higher or unwritten laws, 59 she would have been incomprehensible. For Cicero and the Romans generally, positive Roman law was coequal with natural "higher" law, and thus natural law could not be invoked to overrule positive laws.
The Roman conception of law, then, is anything but revolutionary. It contains no vindication of the "rights of man" but is rather a reflection of existing laws. It was never meant to give sanction to any idea that was not already in existence. As d'Entrèves concludes: "We must indeed divest ourselves, in order to understand the Roman conception of natural law, not only of the modern concep-

     

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tion of natural rights, but of the notion of the subordination of positive to natural law with which later ages have made us familiar."
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The most obvious test case for this is the issue of slavery, the one institution common to the Greeks and Romans in antiquity and one always reckoned within the ius gentium . Slavery was antithetical to natural law and to every Stoic notion of equality. In the De legibus Cicero urges a "single definition" for human beings: "However we may define man, a single definition will apply to all.... For those creatures who have received the gift of reason have also received right reason, and therefore they have also received the gift of Law, which is right reason applied to command and prohibition. And if they have received law, they have received Justice also." 61
We soon see, however, that a single definition does not apply. Slavery is perfectly legal because it is the way things are. It is the one glaring discrepancy between natural law doctrine and the ius gentium . 62
The division of "how things are in nature" ( physikon ) and "how they are in custom or law" goes back to Aristotle, 63 but Jolowicz sees the slavery problem as evidence of the fact that when the Romans said "natural law," they really meant ''Roman law." For example, although all states had procedures for the manumission of slaves, rules about it differed greatly from state to state. Whenever a stipulation concerning manumission is stated, the particular Roman institution is meant, and the rules of other states on the subject do not matter at all. In practice this was the meaning of ius gentium for Roman lawyers. The rest was "philosophical ornament." 64
For the Romans, a "natural person" was one who possessed legal rights and capacities. Apart from criminal law, Roman slaves were not persons because they were incapable of rights and duties and because they themselves were the objects of ownership and other proprietary rights. Their status was absolute; it did not depend on being owned by a master, and there could be an ownerless slave just as there could be an ownerless animal.
While slaves had no rights, there were other groups

     

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completely or partially prevented from the full possession of or exercise of rights. These included women, young people, the mentally ill, and the prodigal.
    65 Children acquired legal personality as soon as they were born, but in order to count as born they had to have lived for at least a moment outside of the womb. According to the Digest , an unborn child was not a human being. 66
The Roman term obligatio referred to a personal right, but only as a constraint to cause a person to do something or leave something undone in the interest of someone else. Mostly this had to do with matters of pecuniary value and with patrimonies. As J. Declareuil sees it, these constraintswhether positive or negativeprimarily reveal a jurisprudence that tended to reduce legal relations to an economic plane. 67 Thus rights in Roman law refers primarily to