Why Rome Endures Part I: Law
Length: 10 minutes (2019 words)
Are you a person? You are, but if it were not for Rome, you might not know it. Being a person is a Roman invention, or, maybe, a Roman discovery.
Our civic, political, and social life are shot through with Roman structures and Roman ideals, but the Roman notion of the person, and more particularly, the idea of the person shaped by Roman Christianity, may be the most precious. One could spend many lifetimes tracing that antique city’s influence in our common public life, but, accepting the limitations of this mortal coil, we will focus here on only this one aspect of that influence: personhood.
Persona, in the tongue of Rome, referred to the masks worn in plays to represent the character portrayed. In the judicial system, that word came to refer somebody who ‘had a face’ before the law, and to have a face was to be the subject of rights and duties, to be worthy of consideration. A person was understood to be definitively a subject and not an object.
The Roman legal tradition was uniquely organized around this concept: the person became the reference point of all the legal structure, especially as codified in that famous body of law, Justinian’s Digest. But, of course, not everyone did wear a face before the law in ancient Rome. Slaves, obviously, had no face. Slaves, wherever they appear in history, are never acknowledged as having faces. That is why the harsh bondsmen on Southern plantations would give lashes to one who met their eye. In the eye, in the face, we see most strongly the attributes of personhood: freedom, responsibility, thought, and feeling. As soon as we acknowledge the personhood of the one abused, we become aware of our own criminality in treating her as an object or an instrument.
But it was not only slaves who had no face in the ancient world of Greece and Rome. These were cultures organized by a social, political, and metaphysical hierarchy which, in human terms, had the well-born, magnanimous man at the top, and at the bottom were women, slaves, the sick, the disabled, and the poor. This was both the common social practice and endorsed by the most respected philosophers. Whatever their many merits, the sages of classical Athens and Rome in large part lacked a notion of human dignity. Violent Greek practices like leaving disabled infants in the woods to be eaten by animals, capital punishment for minor offenses, and the keeping of slaves came under no censure or were positively endorsed.
But Rome is big, and as it grew, shifted, and changed, so also did its ethics and philosophy. In time, the eastern mystery cult of Christ would shake hands with Stoical philosophy and fill in this idea of personhood with something new. It would expand the range of personhood, at least morally, across bounds not previously crossed.
In the most prevalent systems of classical thought, the ruler of the city or of the empire was considered most divine, and in the order of rational beings he sat atop the hierarchy whose bottom was populated by the most valueless: the poor, the sick, the disfigured, the slave, the criminal, the laborer. The Christian story turned this hierarchy topsy-turvy. God himself had entered the world, it claimed, and his chosen companions were the poor man, the laborer, the sick woman, the criminal, the drunkard, and the child.
The philosopher John Gray, not himself a Christian, put his agreement with the historian Tom Holland this way:
…the triumph of Christianity was a rupture in Western civilisation. There is nothing at all self-evident about the equal intrinsic worth of all human beings or the inherent preciousness of individual persons. These values – which secular thinkers nowadays take for granted – were placed at the heart of the Western world by Christianity…In the final analysis, liberal humanism is a footnote to the Bible.
Think of that story in the New Testament where the woman with the hemorrhage touches Christ’s garment as he passes in the street. This Jesus figure does not reproach her, but looks on her in compassion. So much is contained in this look, if it is said to be the look of God. If God looks lovingly on a poor, sick woman, if he holds her up as an example to all, suddenly we have to re-asses what sorts of people we take to be valuable. More than this, the letters of Paul tell us repeatedly that Christ was willing to die not for a select few, not for the special or the exalted, but for each and every person in the human family. If God is willing to assume humanity and suffer tortures for even the most apparently worthless individual, then we must radically revise our idea of the ‘person’.
Christianity would in time become like a soul to the body of Rome, filling its material structures with a new culture and way of thinking. The Church took on the Empire’s material shape: the Pope still holds the same title as Julius Caesar did when he was high priest of Rome, basilicas are structured off Roman temples, the system of law in the Church is a Roman one. Just as each of the pieces of Roman society became invested with a new Christian spirit toward the end of the empire, so also the idea of the ‘person’ and its place in law gained a new, Christian spirit, and, in time the word ‘person’, even as a piece of language, came to be almost identical with ‘human being’.
In the Theodosian Code, we read this developing notion of personhood playing a practical role in the treatment of prisoners: “if any person should be condemned to the arena or to the mines … he shall not be branded on his face … so that the face, which has been made in the likeness of celestial beauty, may not be disfigured.” This acknowledgement that even criminals bear the divine likeness and wear a face before the law was something really new.
Still, the alliance between faith and power is almost never pretty, and the result of Christianity’s ascent in Rome was ambivalent. Christians became free to practice and spread their faith with new liberty and this led, in time, to Christianity becoming the lingua franca of what had been the old Roman Empire. But this faith was tied also in a new way to the tremendous corruptions of power. Christian potentates, magistrates, priests, and theologians violated, abused, and thwarted the biblical teaching of the dignity of each person in countless instances. In some places and under some rulers the structures were as unjust and as neglectful to those lower on the social hierarchy as in places untouched by the Christian teaching of universal divine sonship.
But, through the wendings and working of history, through its stuttering starts, stops, jolts, falls, and misdirections, this idea of personhood remained always incipient in the world inherited from Rome. Beneath the layers of abuses and the fights over power, there remained a structure of law centered around the person, and to the degree that a society recognized the full reach of that word, the law was equitable and just.
An example: in the 1830s, when Iowa was a young territory and not yet a state, the question came before the territorial supreme court as to what ought to be done with a Missouri slave, Ralph Montgomery, who had been abducted by southern bounty hunters while on a sojourn in Iowa. This was the court’s first case, a test of what sort of a body it would be, and of what were its principles. It set the stage for the coming decades in Iowa’s law.
Ralph had traveled to Iowa with his master’s permission to work in the mines in Dubuque, and, in time, to earn his freedom. Before Ralph had fully paid off the agreed sum, the Missouri slaver sent bounty hunters to capture and return the ‘fugitive slave’. A pair of Irish farmers, Alexander Butterworth and Patrick Quigley, stopped the men before they could reach the southern border, and petitioned the Iowa court to prevent Ralph’s removal.
Here is where the Roman law of Justinian came in: the chief Judge ruled that Ralph could not be anyone’s property, because he was a human being, and every human being is a person, and persons as such have a face before the law. Judge Mason referred to Ralph in his ruling not as a ‘fugitive slave’ nor as a ‘negro’ but as a ‘man of color’. In the court’s eyes, the word ‘man’ was all that need be said, because each man, that is, each human being, stands under the equal protection of the law.
Years later, we know that the Supreme Court of the United States failed to understand this principle in its Dredd Scott decision; it abandoned what Abraham Lincoln identified as the universal personalism of the Declaration. Lincoln: “In those days, our Declaration of Independence was…thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn…”
Chief Justice Taney held that while the Constitution and Declaration appeared to reference the equal rights and protection of the “whole human family,” they in fact only applied to a limited portion of it, and in that portion blacks were not included. Taking up the arguments of Lincoln, and taking them further, Republican senators used the language of Roman personhood to argue that those documents really did contemplate and include the entire human family, despite the fact they did not de facto establish their aim at once.
“The Constitution,” Senator John Henderson said in 1866, “looked to the ultimate extinction of slavery in all the States. It compromised a present difficulty growing out of the state of slavery, but anticipated a period when it would cease to exist. When the former slave became a free man…he ceased to be property, and became a person.”
He argued forcefully that the 13th and 14th Amendments were retrievals of the true doctrine of personhood as against arguments, like Dredd Scott, that were grounded more in a dogmatic investment in slavery than good legal reasoning. These Civil War amendments did not do away with the depersonalizing prejudice and discrimination that persisted, but they did embed with near inarguable clarity the notion of equal protection for all persons under the law, and this, in time, would bear many good fruits.
Nothing in history is inexorable, no paths are simple, and every piece of the picture becomes more complex the longer we look at it. That is clear in this case. One does not have to look long to realize that in the world inherited form Christian Rome, there was no shortage of violence, oppression, corruption, and callousness toward the weak and poor. Societies that had the legal idea of personhood and the theological idea of the marginalized as especially loved by God were nonetheless home to abuses and injustice even as they were home to charity and gentleness. Many times, the injustice seemed almost ready to swallow the charity.
In our own day, countless failures of this sort persist, and our society fails in many ways to care for those left behind. But we can point to a few specific moments and movements and recognize that the principle of universal personhood, of the dignity of the human being as such led us in those cases toward a more just, equitable, and loving society. The arguments made to advance abolition, civil rights, and the preferential treatment of the weak and disabled in our society have been advanced on terms inherited from Rome and from the faith Rome embraced. Were the case of Ralph Montgomery the only example, it would be enough to raise a glass, but for every time that the law has recognized the personhood of all human beings, we ought to lift a cup to Rome with “esto perpetua!” on our lips.
Nathan Beacom is a writer living in Washington, D.C. His work has been featured in America Magazine, The Des Moines Register, and Commentary Magazine.