INTRODUCTION

“Roman law: reality and context” was the theme of the conference at which this chapter was given as a paper. It discusses briefly only two remedies in Roman law in relation to slaves and their legal capacity to contract and hold property. The reason for doing so is that this is a topic which focuses sharply the divergent pressures of legal doctrine (on the one hand) and economic utility (on the other).

At the most general level it is quite clear that within this area pure legal doctrine did give way to some extent to the demands of practicality. Legal doctrine in its uncontaminated form held to two most inconvenient principles. First, that a slave was a non-person. Strict application of this principle would mean that the slave's acts could have no significance in terms of creating legal relations between his or her owner and anyone else. But a moment's thought is enough to reach the conclusion that that deprives slaves of what could otherwise be economic value. A second obstacle is expressed in Gaius' words that our condition can be made better through our slaves, but not worse. That principle is perfectly unobjectionable in theory but, since trade is bilateral, strict adherence to the principle would have the result that trade could never be conducted through slaves. In short, for slaves to be put to good use it was necessary that the pure stream of jurisprudence should become contaminated by the raw untreated demands of practicality.