Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses the Roman law of persons. Questions covered include: The rights an individual has under natural law Marriage and the rules that governed it in the Roman system The institution of slavery This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What rights does an individual have under the natural law? The question about natural law applies not only to the issue of how you acquire relationships with other individuals through property, contract, and tort; it also has to do with the general autonomy principle. If somebody believes in this natural law view, it comes down to the following very simple proposition, which was a rarity in virtually every legal system until the mid to the late part of 19th century, which is namely that every natural person, I.e., every human being, is a separate legal person who has full rights as against everybody else. Any effort essentially to limit the ability of an individual to transact on himself had to be done under a guardianship type of arrangement where the key note was that the arrangement was put into place for the protection and benefit of an individual that lack full capacity rather than a slavery or an ownership type of relationship where the subordination was made for the benefit of the party who did the subordination. This is not an easy concept as you might think otherwise do, so it's worth breaking it out into a couple of different cases to see the way in which it works, at least in the mature system. The most common case of this is of course parent against child. At this particular point, it's quite clear that the parent has large fiduciary duties to the child in terms of nurture and upkeep. But it's not as though under these kinds of relationships that they don't have any rights to make sure that they themselves are able to survive. This is very difficult balancing act, particularly in times of scarcity, as to how much resources should be devoted to the child and how much to the parent. If you give too much to the child and not enough to the parents, they may become sufficiently weakened so they can no longer protect the child. If on the other hand you give rations that are too low, the child will die no matter how much protection is given. What you often develop is these kind of crisis situations in very averous times, where you almost have to let a child die because the parents, everybody's gonna die in the family, parents and child. While the parents will stay alive, the child will die of exposure or starvation, and then the parents, if they can recover, can breed and start again. Everybody understands how awful and ugly these situations are, and how important abundance is in order to eliminate these problems. Why is it that the legal system tends not to intervene in these cases? Also pretty clear. The genetic overlap between parents and child, that I mentioned, indicate that the parents themselves have a huge incentive to take care of the child because of the common pool of genes between them; and the love between parents is essentially designed to secure cooperation in the protection of the child. So that generally speaking, it's very different for a legal system to intervene if what you're doing is making mistakes at the margin. So the review standard that's adopted virtually everywhere, in one form or another, is a standard of abuse or neglect. Abuse covers those cases where essentially you treat the child as a tool for the benefit of the parent, and neglect is a situation where, even though you have the resources that might be able to care for a child, you choose to devote them to some other person. Given the biological incentive, both abuse and neglect tend to be relatively rare, although obviously in some cases and in some cultures and in some times, these things are more difficult. Cinderella gives you the key lesson on this. It's the wicked step-mother who's much more likely to be abusive than the natural parent, and so when they assume guardianship obligations, it's much more likely that they will be breached than when it's their natural parent; which explains why it is that everybody has at least an uneasy feeling about adoption, notwithstanding the fact that in many cases it turns out to be highly successful and something of a moral imperative to a child who can't survive. It's also instructive to note that when you're dealing with these adoptions, often the adopting person is not unrelated to the natural parents. They can be brothers or sisters, or aunts or uncles, or grandparent. The reason why you have this, is in earlier times there was no longer a confident expectation that what parents would live through to see their children to maturity, if in fact the normal life expectancy in Roman times, and indeed even afterwards, is somewhere between 30 and 40 years, it's quite clear that you can have a parent who dies before the child has reached maturity and the ability to handle it. So you have to put these kinds of relationships in place. The standard common law view, or was it these are natural obligations of parents to children, they come by virtue of the relationships. The abuse and neglect standard is when the statute comes in, in order to try to control the abusers at some times, arrives in these relationships. What other sort of relationships would be governed by these rules? At the other end of the spectrum, you have people who are old and people who are senile, and people who are insane; and again you have to impose a guardianship relationship upon them. Sometimes it's not natural love and affection that guides this, it may be a more commercial relationship of some kind of an institution and so forth. The same basic principles start to apply. But here, the fact that you probably have to do more external monitoring, because the natural bonds of love and affection are not necessarily there, and all modern legal systems try to develop some kind of relationship to handle these things. When you teach as I do, medical ethics, what you realize is that the central assumption of market economy, which is the roughly full competence of all individuals who enter into transactions for sale and police and for hiring and all the stuff, are no longer good; what you do is you face individuals who are having to deal with the most difficult decisions of their lives, having to do with life and death, when they're least able to handle them. All their capacities have been diminished, all their judgment is often blurred, and so trying to figure out what substitute arrangements you start to put into place becomes a real challenge under these circumstances. You have advance directives, you give notice to various people to take over the situation, one or another. These are problems that happen for all individuals, so when you start dealing with estate planning, which was the course I taught in 1968, you were worried about the transfer of law gestates from one generation to another; we now tend to call this course "Elder Care," in many cases, because the financial stuff will be important for a very small percentage of the population, say two or three percent. On the other hand, the social arrangements on guardianship and competence are important to everybody, so long as old age and frailty of judgment turns out to be an issue. So when we start to say that every natural person has full and independent rights, it's always understood the two ends of the guardianship arrangement are there. If you then go back and start looking at the earlier arrangements under Roman law and so forth, it was quite clear that these things did not apply in that particular form. What you did is you had two very different types of relationships, both are worth talking about in some detail. One of them turns out to be the relationships of parents to children under the familial side, and the other turns out to be the question of the status of slaves dealing with a society in which they do not have full competence. And the distinctive Roman institution, which did not survive, which applied only to private transactions, not the political life, was the arrangement in which the powers vested in the "Pater familias". And "Pater" is Latin for father, "Familias" is Latin for family, and it was never a matrilineal system, it was a patrilineal system. The basic rule of this particular system is that all rights and duties for the family were vested in the person who sat at the head of it. This person, much like a mini emperor, would in fact distribute the rights and duties within the family, subject to his own discretion. There may well have been an abuse or neglect contingency built into this system, but that's not what's typically stressed. So what goes on is, if you're an old and doddering father and you have two sons and one daughter, they're all underneath your power, which means that none of them can enter into contracts with third parties by themselves, but would have to have your blessing in one form or another, which could create all sorts of awkwardness and tended to develop in general agency rules so that they could transact in the market with the laws, if sometimes implicit, blessing of the father. This would go to the grandchildren and all the way down, so you had this one person. Now, when that one person dies, it turns out, let's say he had two sons, then each of them would become head of his own family, subject to everybody else's subordination. Sometimes when the two were in the care of their father, they entered into a joint venture. The Romans had this institution of partnerships, which had this strange Latin term "ercto non cito", and the less you know about it the better, which meant in effect that you would treat them as though they were partners so they could continue their relationship without the guy at the top. Since, when the father was there, each of them had to take into account the abilities of the others and the needs of the others on an equal level of its own; these relationships became known as bonafide relationships. Now what this meant was that when you're making a decision on behalf of the group, you have to weight the utility and the inconvenience to the other party equal to that of your particular self. If everybody follows that principle, which they're likely to do since partnerships are chosen on the nature of trust, then you're gonna get a higher level of performance than you would if each party feels free to defect and to benefit himself while harming the others. When we talk about partnership, we can see the way in which these rules are put into effect. What about marriage? How does that change the dynamic? Now daughters are a different proposition altogether, because what happens is typically they are gonna be married off. If you go back and you look at the Roman texts, you'll see why the passive voice is appropriate. A romance was not considered to be the dominant features in these systems, they tended to be planned marriages. Often there was a property transaction moving in one direction or another, a dowry perhaps, which the woman would bring to the new family. Once she married, she out from control of her original father, and fell into the family of her new husband, so essentially marriage at that particular point was a combination of a reproductive arrangement and a property transfer arrangement; which is why emancipation, the rules on conveyance, was applied very systematically as outlined in Guy's book one in dealing with this subject as part of the system. And then she fell in with the other family. Now, why is it that you have to have the switch? If you think about it for a second, it's almost impossible to have a situation where a single person, the future and now present bride, is gonna be subject to the control of two people who may have views that are inconsistent with one another. Ownership type arrangements, guardianship type arrangements, paternal type arrangements, always turn out to be all or nothing. Generally speaking, you do not want a situation in which the husband and wife are subject to different controls, because so much of what they do is uncommon. So it turns out that the wife goes over to the husband's side and leaves the control on the other hand. Now what happens is, as time starts to move on, we start to see the breakdown of these larger arrangements. And then the question is: what about the relationship between the husband and wife after the father is knocked down? Roman law and early English law were relatively egalitarian about that. If you read John Locke, he talks about parental rights, not so much paternal rights. So the mother and the husband seem to have more or less parallel positions, and that was true under Roman law. But, you then have to worry about the questions of property settlements on divorce, that's gonna take place in every society, and custody arrangement with respect to minor children who survive this kind of situation. Modern divorce lawyers deal with exactly the same problems that the Romans did. The advice to give to everybody is: “Don't try to get a good divorce settlement, try to stay married”, because essentially divorce is a very expensive game. It a by-lateral Monopoly game: "I can only get a divorce from you, you can only get a divorce from me"; there's no competitive market out there, so that if “I don't like the terms that you offer me on the divorce, then I can go to somebody else.” You cannot divorce somebody with whom you are not married, so these arrangements turn out to be extremely difficult, and they require some degree of arbitration and control. And in the family setting, essentially what happens is, you can slowly see the change from this large legal person comprehending many natural person, to a situation where each natural person has his or her own rights. This became a huge campaign issue. It evolved on the private side, the question of women can enter into contracts, be responsible for tortes, own property in their own name. In the late 19th century in England and America, and virtually everywhere else, married women's property acts of one kind or another tended to create this sort of parity. This issue was actually not fully resolved in these systems until 1970. If you look at community property states and the American west, for example, the earlier version had the wife having equal rights to the property, but the husband having management and control responsibility; and the wife only having ability to check them. And then by both Supreme Court decision, and by statutory change, what seemed to be a dominant one-sided relationship became a relationship of existential parity, and that's where it stays. Still lots of complications, people bring property to the marriage before they're married, they generate property during marriage. Trying to have different rules for the two things is a mess, so what happens is people tend to enter into prenuptial agreements, even for first marriages today, and certainly for second marriages today, where each party may be widowed and have children separately, so they want to keep the two fortunes away. You start with the Roman stuff, you can see how the whole thing is going to unfold. What about slavery? Now, in the slavery side of the situation, it's a little bit different. Essentially what happens is: you should think of a slave as somebody over whom you have absolute ownership and control. So a slave is somewhat different from an employee. A boss may be able to tell a person what to do while on the job, but that person can always have the right to quit. Specific performers, that is an order for somebody to continue to work when they want to quit, are unheard in any common law or Roman law system. It's just too much of an imposition to have these quasar kind of slavery system, and no court wants to be in the position where they have to oversee whether or not the employment relationship is done or is done correctly. Whether or not the employment relationship is done or done correctly. All common law courts back off of this thing, employment, but slaves there's no such thing as being outside the scope of employment. They are owned, so what happens is when they marry you're gonna have to figure out whether or not the owners of the husband or the owners of the wife are gonna control them. If they are the same owners so much the better. It's also clear that any child born to a slave union is the property of the owner under these circumstances. It's not just a question that slavery is justified by conquest, and the original justification was well, "We took you over, we could have shot you. You should be strongly happy about the fact that we're letting you live." We'll exploit you in this way, but it also applies to the offspring notwithstanding the fact that they did nothing except be born to this particular kind of couple. How do you run an organization like this? It's not easy, and what you see is there are two kinds of relationships: one lost to history, and the other which is extremely important. The one that is lost to history has to deal with household help and field hands of one kind or another because they're subject to short-term orders, but they don't have any formal relationships with third parties outside the businesses. So, what goes on there essentially may be checked by some abuse or neglect statue, such as developed in the American South, in order to counteract the worst abuses of slavery, to be sure, highly imperfect. You may have had something like this under Roman law, but it was not the dominant feature. Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. 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