Fiction

Abstract

AbstractThrough the peculium (a fund that a slave held for use in his or her own commercial pursuits), some skilled Roman slaves were able to accumulate assets that even the law implicitly recognized as effectively their own, and were able to continue to hold these assets as they emerged after manumission as free and affluent business persons. This is an element of economic reality that Roman law, as a consequence of the existential centrality of its doctrinal commitment to the legal nullity of slaves, could not explicitly embrace. But because of the importance to the Roman economy of servile enterprise and servile wealth, a jurisprudential mechanism had to be found to accommodate this reality. Voilà: the Roman legal fiction (fictio), which reconciled legal dogma and commercial actuality by attributing to an enslaved individual practical ownership of his or her peculium while continuing to deny slaves’ capacity to “own” anything. The Roman “legal fiction” with which this chapter deals is the factual falsity of the juridical framework governing slaves’ business activity, and the casuistry through which Roman jurisprudents skillfully preserved a legal framework seemingly confirming a fictitious world in which slaves are absolute nullities, while simultaneously creating legal methodologies and rules facilitating a commercial reality utterly in conflict with the fundamental juridical precepts that should have governed servile business activity.