Roman Inequality: Affluent Slaves, Businesswomen, Legal Fictions

Edward E. Cohen, Roman Inequality: Affluent Slaves, Businesswomen, Legal Fictions (Oxford: Oxford University Press, 2023). 9780197687352.

Reviewed by Maarten Schmaal, University of Groningen, m.p.schmaal@rug.nl.

Edward Cohen’s Roman Inequality: Affluent Slaves, Businesswomen, Legal Fictions does not quite do what it says on the tin. The reader will not find a broad economic history regarding enslaved people and women here, no Lorenz curves or Gini coefficients, and no deep engagement with previous scholarship on such topics as inequality. Instead, Cohen focuses on the final part of the title, legal fictions, and how this phenomenon enabled the existence of “affluent slaves” and, to a much lesser degree, businesswomen. Hence, the book should primarily be seen in the context of scholarship on Roman law and specifically on the gap between Roman law as written and certain observed realities that seemingly contradicted that written law. On this topic, Roman Inequality makes a substantial and insightful contribution to explain the economic success of certain enslaved people, despite this being legally (in the sense of law as written) impossible.

It should be briefly noted that Cohen consistently uses the term “slave,” or sometimes servus, to refer to enslaved people. Whether this was a conscious decision or simply habit on Cohen’s part is unclear. While many academics today would likely prefer the term “enslaved person,” Cohen’s focus on legal status, and not individuals, makes his choice of terminology not illogical. This review uses the term “slave” when referring to the Roman legal category and members thereof in the abstract and “enslaved person” in all other situations.

In the Introduction, Cohen explicates the goal of the book: it “explores the casuistry through which Roman jurists created legal methodologies and interpretations facilitating a commercial reality utterly incompatible with the fundamental precepts that the jurists continued explicitly to insist upon” (p. 3). The latter part of this sentence touches on a fundamental issue in previous scholarship on Roman law that Cohen aims to address. This issue concerns both the existence of contradictions between written law and empirical reality, and the chasm these contradictions have created between scholars of Roman law on the one hand and scholars of the Roman economy and society on the other. Cohen convincingly argues that there is no reason to prefer the legal perspective above the economic one or vice versa. There is no indication that either is incorrect, so the solution should be sought in reconciling the written law with empirical reality. The novelty of Cohen’s work with respect to the lively debates already occurring on reconciling Roman law and society is that he argues for a much more pragmatic and deliberately inconsistent implementation of the law in Roman society than previously posited.1

The instrument used, Cohen argues throughout the book, was the legal fiction. Legal fiction is a concept known from modern (common) law and concerns the ‘assumption and acceptance of something as fact by a court, although it may not be true, to allow a rule to operate or be applied in a manner that differs from its original purpose while leaving the letter of the law unchanged.’2 Yes, this person is a slave and therefore cannot own property, but we would like him to be able to act as if he could so he can conduct business more effectively. Therefore, we envisage a hypothetical—what if he was not a slave?—and treat the outcomes of that hypothetical as law, without ever rejecting the fact that the subject is, in fact, a slave. Such instances of mental gymnastics are well-known,3 but are usually treated as flaws to be resolved: mistakes in either the writing, the application, or our understanding of Roman law. Cohen, however, sees legal fiction as a keystone of Roman law. The inconsistency is a feature, not a bug, that allowed Roman law to facilitate a desired and actual reality in which (certain) slaves could become very wealthy and influential, which was beneficial to commerce, without ever corroding the legal nullity and non-personhood of slaves.

In chapter 1, which together with chapter 2 forms the core of the book, Cohen explains both the legal and real position of Roman slaves and illuminates the discrepancy between the two. He argues that servile business was privileged over free business as a result of the fact that Roman law did not recognize legal agency: a free person could not make agreements on behalf of another; they themselves would be liable for the agreement The authority that masters held over their slaves partially filled the gap, leaving slaves able to serve as “quasi-agents.” As a result, servile business held a practical advantage over free business by allowing slaves to make agreements on behalf of their owner, even at distances or frequencies where it would not be feasible for the businessman himself to do so: servile business was inherently more scalable.

Slaves could operate most effectively (and would best shield their master from liability) if they could do so largely independently. This meant that, in practice, slaves could control large economic resources and make large profits, which were treated as essentially their personal property. This raised issues of liability and status: it was exactly as if slaves owned property and independently conducted business dealings, but by the letter of the law they and all their economic assets belonged to their master. In chapter 2, Cohen uses legal fiction to explain how the Romans resolved such issues. Roman jurists and law courts consistently treated slaves’ peculium (the assets entrusted to them by their master) as their patrimonium (a free person’s property), without ever allowing that it was actually anything other than a peculium. Normally, the owner would be liable for their slave’s  business losses up to the height of the peculium (and no more). This legal fiction facilitated commerce by allowing slaves to continue to operate largely independently and shielded slave-owners even further by removing their liability for third-parties’ claims on the slave’s peculium, all without having to change slaves’ formal status. According to Cohen, this legal fiction also ensured a smooth manumission process that gave the formerly enslaved person a head start by presumptively considering their former peculium their property, benefitting the former master by blurring the lines between servile and freed status.

Cohen’s argument is convincing in its ability to resolve the legal issues inherent in the widespread use of slave and freed agents in commerce and is supported by a large number of examples from legal sources and epigraphy. Certainly, scholars of Roman law may take issue with Cohen’s argument that the Romans tended to close their eyes and pretend everything is fine when confronted with an undesirable legal inconsistency, but his logic is sound and it is surprisingly difficult to find empirical counterexamples. Cohen’s counterintuitive embrace of the contradictions in Roman law, instead of attempting to explain them away, is an unusual reinterpretation of the (mostly juridical) sources. However, it allows him to construct a solid bridge between law as written and empirical reality, at least as far as the role of slaves in Roman commerce and the peculium is concerned.

In chapter 3, Cohen continues by examining a specific subset of Roman slaves that could, according to him, only exist as a result of the abovementioned legal fiction: those who sold themselves into slavery. Cohen argues that the privileging of servile enterprise meant that (well-positioned) slaves had access to more economic opportunities than the freeborn poor. As a result, some of the poor would sell themselves into slavery under a contract that allowed them to buy their own freedom at a later date. Of course, upon enslavement, the slave-to-be would no longer have any rights vis-à-vis the master-to-be, could not own property, and could not be party to a contract. Such self-enslavement contracts should therefore have been impossible. Here, too, Cohen sees a solution in legal fiction. As slaves could apparently “own” their peculium as if it was a patrimonium and conduct private business dealings, it was possible for them to earn the sum needed to re-buy their freedom. An additional legal fiction was created in which said slave could have a free third party buy the slave’s freedom on their behalf with the slave’s peculium. Roman courts enforced such agreements, despite their legal impossibility.

While Cohen’s reconciliation of contradictory facts through legal fiction is again convincing, he seems to undervalue if not outright overlook the more nefarious aspects of Roman slavery. Slaves were subject to their masters’ whims and had no defense against mistreatment, including random violence, sexual assault, torture, and even summary execution.4 Yet, Cohen does not argue and presents no evidence that self-enslavement contracts included clauses protecting the slave-to-be’s safety or that this was otherwise considered in such arrangements. Unless the slave-to-be was utterly destitute, it seems unlikely that any economic benefits to self-enslavement would outweigh such risks of mistreatment and death. Perhaps Cohen is missing a piece of the puzzle, or perhaps the evidence for slaves buying their own freedom does not actually imply self-enslavement on the scale he posits, but a full explanation needs to take the violence fundamental to Roman slavery into account. The devaluation of the violence associated with slavery appears not just in this chapter. Throughout the book it is a common oversight, as Cohen seems to believe that violence was almost entirely limited to slaves in less privileged positions than those he deals with.

Chapters 4 and 5 drift somewhat away from the goal of the book as stated in the introduction and feel a bit like disjointed additions. Chapter 4 is the only chapter explicitly dealing with Roman women; in it Cohen argues that women were more commercially active than usually thought, whether slaves, freedwomen, or freeborn. He posits that Roman law on commercial activity (not commercial law, which according to Cohen never existed as a coherent legal framework) was gender-blind and that obstacles to women’s participation mostly stemmed from other legal domains, and that these were routinely ignored or evaded. In particular, Cohen sees male guardianship over women as a legal fiction, as guardianship was limited, weak, and to some extent in the woman’s control. Describing this as legal fiction is curious, however, as Cohen’s description of guardianship resembles merely a weak institution. He does not present strong evidence of actual legal fiction, like jurists and magistrates exploring the hypothetical that the woman in question was not a woman or otherwise not subject to guardianship. Instead, his argument is limited to instances of women cleverly operating within the law, no legal fictions required. The chapter therefore does not fit Cohen’s argument very well. This is not to say that it does not concern an interesting topic—on the contrary!—and Cohen certainly makes a strong argument that women were not as limited by male guardianship as is usually thought. He presents a number of striking examples of economically active and successful women asserting their power in the face of legal limits to their independence. The same problem applies to the fifth chapter, which analyzes imperial slaves and is mostly descriptive, with little new data or argumentation. It is interesting to note that manumission of imperial slaves apparently made very little practical difference, to the point that authors continued to refer to imperial freedmen as slaves, but how this connects to the book’s core arguments remains unclear.

Roman Inequality makes a striking and compelling argument in the first two chapters that legal fiction is the element that reconciles Roman law-as-written and certain seemingly contradictory realities involving enslaved people. This simple but highly insightful and well-supported argument is of great importance to both Roman legal scholars and economic and social historians, and especially to those operating on the knife-edge of these disciplines. Cohen’s logic is convincing, his supporting evidence is strong and plentiful, and there are no obvious gaps or oversights. Unfortunately, the book is unable to maintain this high quality from the third chapter onward. Curiously, the book does not have a conclusion. It simply ends after chapter 5, leaving readers to their own devices to bring everything they have read together. The insightful arguments presented in chapters 1 and 2 and the interesting topics addressed in chapters 3 and 4 make the book a highly worthwhile read nonetheless.

Table of Contents

Introduction (1–25)

1. Inequality (26–48)

2. Fiction: Reconciling Economic Reality and Juridical Principles (49–82)

3. Opportunity: From Freedom to Slavery—From Slavery to Freedom (83–126)

4. Businesswomen: In Servitude and in Freedom (127–63)

5. Servile Imperialism: In Power, in Servitude (164–80)

Notes

1. For a short overview of these debates, see Janne Pölönen, “Framing ‘Law and Society’ in the Roman World,” in The Oxford Handbook of Roman Law and Society, ed. Paul J. du Plessis, Clifford Ando, and Kaius Tuori (Oxford: Oxford University Press, 2016), 8–20.

2. “Legal Fiction,” Cornell Law School, Legal Information Institute, accessed October 6, 2026, https://www.law.cornell.edu/wex/legal_fiction.

3. See Clifford Ando, “Fact, Fiction, and Social Reality in Roman Law,” in Legal Fictions in Theory and Practice, ed. Maksymilian Del Mar and William Twining (Cham: Springer, 2015), 295–323.

4. For pertinent examples, see Garrett G. Fagan, “Violence in Roman Social Relations,” in The Oxford Handbook of Social Relations in the Roman World, ed. Michael Peachin (Oxford: Oxford University Press, 2011), 467–95, at 485–86. For a general treatment of the violence inherent in Roman slavery, see Noel Lenski, “Violence and the Roman Slave,” in The Topography of Violence in the Greco-Roman World, ed. Werner Riess and Garrett G. Fagan (Ann Arbor: University of Michigan Press, 2016), 275–98, which aptly points out at the start that the violence need not be actually exercised (as may indeed often have been the case for slaves in more privileged positions like commerce) to be felt.