Tearfully, Nicostratus appealed to his neighbor. All his possessions were already pledged now to one creditor or another; he knew Apollodorus wouldn’t have that much cash lying around, but could his dear friend possibly put up something of his own by way of security? Apollodorus was moved. He would be happy to forgive all debts Nicostratus already owed him, but the rest would be difficult. Still, he would do his best. In the end, he arranged to himself take a loan from an acquaintance of his, Arcesas, on the security of his town-house, at 16 percent annual interest, so as to be able to satisfy Nicostratus’s creditors while Nicostratus himself arranged a friendly, no-interest eranos loan from his own relatives. But before long, Apollodorus began to realize that he had been set up. The impoverished aristocrat had decided to take advantage of his nouveau-riche neighbor; he was actually working with Arcesas and some of Apollodorus’s enemies to have him falsely declared a “public debtor,” that is, someone who had defaulted on an obligation to the public treasury. This would have first of all meant that he would lose his right to take anyone to court (i.e., his deceivers, to recover the money), and second, would give them a pretext to raid his house to remove his furniture and other possessions. Presumably, Nicostratus had never felt especially comfortable being in debt to a man he considered his social inferior. Rather like Egil the Viking, who would rather kill his friend Einar than have to compose an elegy thanking him for an overly magnificent gift, Nicostratus appears to have concluded that it was more honorable, or anyway more bearable, to try to extract the money from his lowly friend through force and fraud than to spend the rest of his life feeling beholden. Before long, things had indeed descended to outright physical violence, and the whole matter ended up in court.80
The story has everything. We see mutual aid: the communism of the prosperous, the expectation that if the need is great enough, or the cost manageable enough, friends and neighbors will help one another.81 And most did, in fact, have circles of people who would pool money if a crisis did arise: whether a wedding, a famine, or a ransom. We also see the omnipresent danger of predatory violence that reduces human beings to commodities, and by doing so introduces the most cutthroat kinds of calculation into economic life—not just on the part of the pirates, but even more so, perhaps, on those moneylenders lurking by the market offering stiff credit terms to anyone who came to ransom their relatives but found themselves caught short, and who then could appeal to the state to allow them to hire men with weapons to enforce the contract. We see heroic pride, which sees too great an act of generosity as itself a kind of belittling assault. We see the ambiguity among gifts, loans, and commercial credit arrangements. Neither does the way things played out in this case seem particularly unusual, except perhaps for Nicostratus’s extraordinarily ingratitude. Prominent Athenians were always borrowing money to pursue their political projects; less-prominent ones were constantly worrying about their debts, or how to collect from their own debtors.82 Finally, there is another, subtler element here. While everyday market transactions, at shops or stalls in the agora, were here as elsewhere typically conducted on credit, the mass production of coinage permitted a degree of anonymity for transactions that, in a pure credit regime, simply could not exist.83 Pirates and kidnappers do business in cash—yet the loan sharks at Aegina’s marketplace could not have operated without them. It is on this same combination of illegal cash business, usually involving violence, and extremely harsh credit terms, also enforced through violence, that innumerable criminal underworlds have been constructed ever since.
In Athens, the result was extreme moral confusion. The language of money, debt, and finance provided powerful—and ultimately irresistible—ways to think about moral problems. Much as in Vedic India, people started talking about life as a debt to the gods, of obligations as debts, about literal debts of honor, of debt as sin and of vengeance as debt collection.84 Yet if debt was morality—and certainly at the very least it was in the interest of creditors, who often had little legal recourse to compel debtors to pay up, to insist that it was—what was one to make of the fact that money, that very thing that seemed capable of turning morality into an exact and quantifiable science, also seemed to encourage the very worst sorts of behavior?
It is from such dilemmas that modern ethics and moral philosophy begin. I think this is true quite literally. Consider Plato’s Republic, another product of fourth-century Athens. The book begins when Socrates visits an old friend, a wealthy arms manufacturer, at the port of Piraeus. They get into a discussion of justice, which begins when the old man proposes that money cannot be a bad thing, since it allows those who have it to be just, and that justice consists in two things: telling the truth, and always paying one’s debts.85 The proposal is easily demolished. What, Socrates asks, if someone lent you his sword, went violently insane, and then asked for it back (presumably, so he could kill someone)? Clearly it can never be right to arm a lunatic whatever the circumstances.86 The old man cheerfully shrugs the problem off and heads off to attend to some ritual, leaving his son to carry on the argument.
The son, Polemarchus, switches gears: clearly his father hadn’t meant “debt” in the literal sense of returning what one has borrowed. He meant it more in the sense of giving people what is owed to them; repaying good with good and evil with evil; helping one’s friends and hurting one’s enemies. Demolishing this one takes a little more work (are we saying justice plays no part in determining who one’s friends and enemies are? If so, wouldn’t someone who decided he had no friends, and therefore tried to hurt everyone, be a just man? And even if you did have some way to say for certain that one’s enemy really is an intrinsically bad person and deserves harm, by harming him, do you not thus make him worse? Can turning bad people into even worse people really be an example of justice?) but it is eventually accomplished. At this point a Sophist, Thrasymachos, enters and denounces all of the debaters as milky-eyed idealists. In reality, he says, all talk of “justice” is mere political pretext, designed to justify the interests of the powerful. And so it should be, because insofar as justice exists, it is simply that: the interest of the powerful. Rulers are like shepherds. We like to think of them as benevolently tending their flocks, but what do shepherds ultimately do with sheep? They kill and eat them, or sell the meat for money. Socrates responds by pointing out that Thrasymachos is confusing the art of tending sheep with the art of profiting from them. The art of medicine aims to improve health, whether or not doctors get paid for practicing it. The art of shepherding aims to ensure the well-being of sheep, whether or not the shepherd (or his employer) is also a businessman who knows how to extract a profit from them. Just so with the art of governance. If such an art exists, it must have its own intrinsic aim apart from any profit one might also get from it, and what can this be other than the establishment of social justice? It’s only the existence of money, Socrates suggests, that allows us to imagine that words like “power” and “interest” refer to universal realities that can be pursued in their own right, let alone that all pursuits are really ultimately the pursuit of power, advantage, or self-interest.87 The question, he said, is how to ensure that those who hold political office will do so not for gain, but rather for honor.
I will leave off here. As we all know, Socrates eventually gets around to offering some political proposals of his own, involving philosopher kings; the abolition of marriage, the family, and private property; selective human breeding boards. (Clearly, the book was meant to annoy its readers, and for more than two thousand years, it has succeeded brilliantly.) What I want to emphasize, though, is the degree to which what we consider our core tradition of moral and political theory today springs from this question: What does it mean to pay our debts? Plato presents us first with the simple, literal businessman’s view. When this proves inadequate, he allows it to be reframed in heroic terms. Perhaps all debts are really debts of honor after all.88 But heroic honor no longer works in a world where (as Apollodorus sadly discovered) commerce, class, and profit ha
ve so confused everything that peoples’ true motives are never clear. How do we even know who our enemies are? Finally, Plato presents us with cynical realpolitik. Maybe nobody really owes anything to anybody. Maybe those who pursue profit for its own sake have it right after all. But even that does not hold up. We are left with a certainty that existing standards are incoherent and self-contradictory, and that some sort of radical break would be required in order to create a world that makes any logical sense. But most of those who seriously consider a radical break along the lines that Plato suggested have come to the conclusion that there might be far worse things than moral incoherence. And there we have stood, ever since, in the midst of an insoluble dilemma.
It’s not surprising that these issues weighed on Plato’s mind. Not seven years before, he had taken an ill-fated sea cruise and wound up being captured and, supposedly like Nicostratus, offered for sale on the auction block at Aegina. However, Plato had better luck. A Libyan philosopher of the Epicurean school, one Annikeris, happened to be in the market at the time. He recognized Plato and ransomed him. Plato felt honor-bound to try to repay him, and his Athenian friends assembled twenty minas in silver with which to do so, but Annikeris refused to accept the money, insisting that it was his honor to be able to benefit a fellow lover of wisdom.89 As indeed it was: Annikeris has been remembered, and celebrated, for his generosity ever since. Plato went on to use the twenty minas to buy land for a school, the famous Academy. And while he hardly showed the same ingratitude as Nicostratus, one does rather get the impression that even Plato wasn’t especially happy about the fact that his subsequent career was, in a sense, made possible by his debt to a man who he probably considered an extremely minor philosopher—and Annikeris wasn’t even Greek! At least this would help explain why Plato, otherwise the inveterate name-dropper, never mentioned Annikeris. We know of his existence only from later biographers.90
Ancient Rome (Property and Freedom)
If Plato’s work testifies to how profoundly the moral confusion introduced by debt has shaped our traditions of thought, Roman law reveals how much it has shaped even our most familiar institutions.
German legal theorist Rudolf von Jhering famously remarked that ancient Rome had conquered the world three times: the first time through its armies, the second through its religion, the third through its laws.91 He might have added: each time more thoroughly. The Empire, after all, only spanned a tiny portion of the globe; the Roman Catholic Church has spread farther; Roman law has come to provide the language and conceptual underpinnings of legal and constitutional orders everywhere. Law students from South Africa to Peru are expected to spend a good deal of their time memorizing technical terms in Latin, and it is Roman law that provides almost all our basic conceptions about contract, obligation, torts, property, and jurisdiction—and, in a broader sense, of citizenship, rights, and liberties on which political life, too, is based.
This was possible, Jhering held, because, the Romans were the first to turn jurisprudence into a genuine science. Perhaps—but for all that, it remains true that Roman law has a few notoriously quirky features, some so odd that they have confused and confounded jurists ever since Roman law was revived in Italian universities in the High Middle Ages. The most notorious of these is the unique way it defines property. In Roman law, property, or dominium, is a relation between a person and a thing, characterized by absolute power of that person over that thing. This definition has caused endless conceptual problems. First of all, it’s not clear what it would mean for a human to have a “relation” with an inanimate object. Human beings can have relations with one another. But what would it mean to have a “relation” with a thing? And if one did, what would it mean to give that relation legal standing? A simple illustration will suffice: imagine a man trapped on a desert island. He might develop extremely personal relationships with, say, the palm trees growing on that island. If he’s there too long, he might well end up giving them all names and spending half his time having imaginary conversations with them. Still, does he own them? The question is meaningless. There’s no need to worry about property rights if noone else is there.
Clearly, then, property is not really a relation between a person and a thing. It’s an understanding or arrangement between people concerning things. The only reason that we sometimes fail to notice this is that in many cases—particularly when we are talking about our rights over our shoes, or cars, or power tools—we are talking of rights held, as English law puts it, “against all the world”—that is, understandings between ourselves and everyone else on the planet, that they will all refrain from interfering with our possessions, and therefore allow us to treat them more or less any way we like. A relation between one person and everyone else on the planet is, understandably, difficult to conceive as such. It’s easier to think of it as a relationship with a thing. But even here, in practice this freedom to do as one likes turns out to be fairly limited. To say that the fact that I own a chainsaw gives me an “absolute power” to do anything I want with it is obviously absurd. Almost anything I might think of doing with a chainsaw outside my own home or land is likely to be illegal, and there are only a limited number of things I can really do with it inside. The only thing “absolute” about my rights to a chainsaw is my right to prevent anyone else from using it.92
Nonetheless, Roman law does insist that the basic form of property is private property, and that private property is the owner’s absolute power to do anything he wants with his possessions. Twelfth-century Medieval jurists came to refine this into three principles, usus (use of the thing), fructus (fruits, i.e., enjoyment of the products of the thing), and abusus (abuse or destruction of the thing), but Roman jurists weren’t even interested in specifying that much, since in a certain way, they saw the details as lying entirely outside the domain of law. In fact, scholars have spent a great deal of time debating whether Roman authors actually considered private property to be a right (ius),93 for the very reason that rights were ultimately based on agreements between people, and one’s power to dispose of one’s property was not: it was just one’s natural ability to do whatever one pleased when social impediments were absent.94
If you think about it, this really is an odd place to start in developing a theory of property law. It is probably fair to say that, in any part of the world, in any period of history, whether in ancient Japan or Machu Picchu, someone who had a piece of string was free to twist it, knot it, pull it apart, or toss it in the fire more or less as they had a mind to. Nowhere else did legal theorists appear to have found this fact in any way interesting or important. Certainly no other tradition makes it the very basis of property law—since, after all, doing so made almost all actual law little more than a series of exceptions.
How did this come about? And why? The most convincing explanation I’ve seen is Orlando Patterson’s: the notion of absolute private property is really derived from slavery. One can imagine property not as a relation between people, but as a relation between a person and a thing, if one’s starting point is a relation between two people, one of whom is also a thing. (This is how slaves were defined in Roman law: they were people who were also a res, a thing.)95 The emphasis on absolute power begins to make sense as well.96
The word dominium, meaning absolute private property, was not particularly ancient.97 It only appears in Latin in the late Republic, right around the time when hundreds of thousands of captive laborers were pouring into Italy, and when Rome, as a consequence, was becoming a genuine slave society.98 By 50 bc, Roman writers had come to simply assume that workers—whether the farmworkers harvesting peas in countryside plantations, the muleteers delivering those peas to shops in the city, or the clerks keeping count of them—were someone else’s property. The existence of millions of creatures who were simultaneously persons and things created endless legal problems, and much of the creative genius of Roman law was spent in working out the endless ramifications. One need only flip open a casebook of Roman law to get a se
nse of these. This is from the second-century jurist Ulpian:
Again, Mela writes that if some persons were playing ball and one of them, hitting the ball quite hard, knocked it against a barber’s hands, and in this way the throat of a slave, whom the barber was shaving, was cut by a razor pressed against it, then who is the person with whom the culpability lay is liable under the Lex Aquilia [the law of civil damages]? Proclus says that the culpability lies with the barber; and indeed, if he was shaving at a place where games are normally played or where traffic was heavy, there is reason to fault him. But it would not be badly held that if someone entrusts himself to a barber who has a chair in a dangerous place, he should have himself to blame.99
In other words, the master cannot claim civil damages against the ballplayers or barber for destroying his property if the real problem was that he bought a stupid slave. Many of these debates might strike us as profoundly exotic (could you be accused of theft for merely convincing a slave to run away? If someone killed a slave who was also your son, could you take your sentimental feelings toward him into account in assessing damages, or would you have to stick to his market value?)—but our contemporary tradition of jurisprudence is founded directly on such debates.100