(Page 9 of 53) - "The Loss of the Person: The British Debates on the Legal Status of Groups and Individuals, 1880-1930" authored by Dow, Douglas.

with the exception of slaves, contained its own set of rights and duties. The
law of persons was not a purely self-referential formalistic system, however.
One’s persona could be effected by any number of factors that were external
to the law itself. These could include not only age and sex, but also marital
status and the number of children one has, entry into the army, election to
public office or one’s place of residence.

One of the questions that has concerned historians of Roman law was

the precise status of slaves. Were slaves persons? Certainly if the Romans
defined a person as one possessing rights and duties then a slave was not a
person, but rather a thing.

At the same time, however, the status of slaves

in private law was not very different from that of dependent sons, although
sons did retain status under public law. Further, one need not be a slave for
life, but through manumission could attain the status of a freedman.

Thus,

a slave could not accurately be defined as incapable of rights, but rather of
lacking them. Some legal texts use the word persona in describing a slave,
and Roman legal practice recognized the humanity of the slave in numerous
ways. However, the Romans did not use the term with technical precision.
It is best to recall the still resonant links between the dramaturgical and the
juridical in Roman life. If one’s persona was a particular performed role, a
slave could be a person and a thing at the same time, if a “thing” was a
potential role played in a social drama.

The Roman jurists used the term, but did not actively theorize its

meanings, and thus it may be expected that the term’s usages are not all that
precise and ambiguities remain. Thus there is a question in the Roman use
as to whether the term consistently referred to the particular legal role that a
human being was assuming or could also refer to the human being who was
acting in this role. “It is hard to believe this subtle distinction was always
present to Roman minds” concludes the legal historian P.W. Duff, “but no
doubt everyone has some legal position, even if it is that of a slave, and
lawyers should always bear in mind the legal position of everyone they

Gaius includes slaves in a list of things, which also includes land, a house and animals. Institutes. II. 14a.

On the topic of slaves classified as things, see W.W. Buckland. The Roman Law of Slavery (New York:
Cambridge University Press, 1908) pp. 10ff; Alan Watson. Roman Slave Law (Baltimore: The Johns
Hopkins University Press, 1987) pp. 46ff. Aaron Kirschenbaum has argued that, because slaves could act
as agents for their masters, their status is better described as “instrumentalities”. See Sons, Slaves, and
Freedmen in Roman Commerce (Washington D.C.: The Catholic University of America Press, 1987).

Barry Nicholas argues that under Roman law, the term person did not refer to a being capable of

possessing rights and duties. The status between those with legal rights and those who did not was very
fluid, so a sharp distinction was unnecessary and would be confusing in practice. See An Introduction to
Roman Law. (New York: Oxford University Press 1962), pg. 60-61.