Debt (79 page)

74.
The most famous cases were Athens, Corinth, and Megara (Asheri 1969; St. Croix 1981; Finley 1981:156–57.)

75.
The law was called the
palintokia
and is known mainly from Plutarch
(Moralia
295D, apparently drawing on a lost Aristotelian
Constitution of the Megarians.)
Almost everything about it is at issue in current scholarship (Asheri 1969:14–16; Figueria 1985:149–56, Millettt 1989: 21–22; Hudson 1992:31; Bryant 1994:100–044). Hudson for instance argues that since the event is said to have happened around 540 bc, at a time when interest-bearing loans might not even have existed, the whole story is likely to be later propaganda. Others suggest that it really happened much later. It’s interesting that all Greek sources treat this as a most radical and outrageous populist measure—despite the fact that similar measures became standard Catholic policy during most of the European Middle Ages.

76.
It is entirely unclear whether loans at interest even existed in this early period, since the first apparent reference to interest is from roughly 475 bc, and the first utterly clear ones from the later part of that same century (Bogaert 1966, 1968; Finley 1981; Millett 1991a: 44–45; Hudson 1992).

77.
Compare for example Leviticus 25:35–37, which stipulates that it is permissible to make an impoverished “fellow countryman” a client or tenant, but
not
to give him an interest-bearing loan.

78.
As Hesiod emphasizes in
Works and Days
(II 344–63); he’s our main source on such matters. Paul Millett (1991a:30–35) provides a close reading of this passage, to illustrate the ambiguities between gifts and loans. Millett’s book
Lending and Borrowing in Ancient Athens
(op cit) is the basic work on that topic. Scholarship on the Greek economy has long been preoccupied by what’s still (rather anachronistically) called the Primitivist-Modernist debate; Millett takes a strong Primitivist position and has taken predictable heat from the other side (e.g., Cohen 1995, Shipley 1997, 2001). Most of the debate, though, turns on the prevalence of commercial lending, which is tangential to my present concerns.

79.
The story is so striking because Nasruddin almost never elsewhere behaves in a way that a contemporary audience would consider unfair or exploitative. Those stories that do always focus on his relations with his neighbor the miser—the listener is presumed to know that being a miser, he must, necessarily, be up to no good.

80.
“Against Nicostratus” (Demosthenes 53). My version largely follows Millet (1991a:53–59) but also draws on Trevett 1992, Dillon 2002:94–100, Harris 2006:261–63). The interpretation of Nicostratus’ motives is my own; Dillon, for example, suspects that the entire story of his kidnapping and ransom at Aegina was made up—though if that were the case, one would imagine Apollodorus would have eventually found out and told the jurors. The text doesn’t explicitly say that Nicostratus was an aristocrat, but this seems the most plausible explanation of why someone might have a comfortable country estate but no money. Apollodorus, though, was known, from other contexts, to have feared that his fellow citizens would have contempt for his lowly background, and tried to compensate by lavish—and some felt,
over-lavish—generosity (see Ballin 1978; Trevett 1992).

81.
Athenians when trying to be high-minded at least spoke as if fellow citizens should behave this way to one another; to loan money at interest to a citizen in dire need was treated as obviously reprehensible behavior (Millett 1991a:26). All philosophers who touched on the subject, starting with Plato
(Laws
742c, 921c) and Aristotle
(Politics
1258c) denounced interest as immoral. Obviously not everyone felt that way. Here as in the Middle East, from whence the custom had spread (Hudson 1992), the dilemma was that charging interest made obvious sense in the case of commercial loans, but easily became abusive in the case of consumer loans.

82.
It’s not clear whether debt slavery, or at least debt peonage, was anywhere entirely eliminated, and debt crises continued to occur at regular intervals in cities other than Athens (Asheri 1969; St. Croix 1981). Some (Rhodes 1981:118–27; Cairns 1991; Harris 2006:249–80) believe that debt bondage was not even entirely eliminated in Athens. Millett (1991a:76) is probably right to say that imperial capitals like Athens, and later Rome, fended off the dangers of debt crises and resulting unrest less by forbidding the practice than by funneling tribute money into social programs that provided a constant source of funds for the poor, making usury largely unnecessary.

83.
Millett 1991b:189–92. The same was true in Roman Galilee (Goodman 1983:55), and presumably in Rome as well (Howgego 1992:13).

84.
the Furies, who pursue Orestes to avenge his killing of his mother, insist that they are collecting a debt due in blood (Aeschylus, Eumenides 260, 319.) Millett (1991a:6–7) compiles a number of examples. Korver (1934, cf. Millet 1991:29–32) demonstrates that there was never any formal distinction between “gift” and “loan”; the two continually shaded into each other.

85.
The two were seen to be connected: Herodotus, famously, argued that for the Persians, the greatest crime was to lie, and that they therefore forbade the loaning of money at interest since it would necessarily give rise to untruthful behavior (1.138).

86.
Plato
Republic
331c.

87.
Plato Republic 345d. My reading is strongly influenced here by that of Marc Shell (1978). Shell’s essay is important, but sadly neglected, as Classicists only seem to cite each other (at least, on the subject of the Classics).

88.
What Polemarchus is invoking of course is the logic of the heroic gift, and of the feud. If someone helps or harms you, you pay them back the same or better. Polemarchus actually says that there are two circumstances when it’s easiest to do this: in war, and in banking.

89.
The Republic was written in 380 bc, and these events took place in 388/7. See Thesleff 1989:5, DuBois 2003:153–54, for the dates and references to ancient and contemporary scholarship on the issue, which concur that these events did take place. It’s not entirely clear if Plato was taken in an act of piracy, sold on the orders of an angry ex-patron, or seized as a prisoner of war (Aegina—Plato’s birthplace, incidentally—was then at war with Athens.) But the lines blurred. Curiously, Diogenes the Cynic, a younger contemporary of Plato, was also captured by pirates on a trip to Aegina around the same time. In his case no one came to his aid (unsurprising considering that he rejected all worldly attachments and tended to insult everyone he met). He ended up spending the rest of his life as a slave in Corinth (Diogenes Laertius, 4.9). Plato, Aristotle, and Diogenes were the three most famous philosophers of the fourth century; the fact that two of the three had the experience of standing on an auction block demonstrates that such things really could happen to anyone.

90.
Plato recounts the events in his
Seventh Letter to Dion
, but Annikeris only appears in Diogenes Laertius 3.19–20.

91.
Ihering 1877.

92.
Rights
“in rem,”
or “in the thing,” are considered to be held “against all the world,” since “a duty is incumbent on all persons whatsoever to abstain from acts injurious to the right”—this is opposed to rights “
in personem,”
which are held against a specific individual or group of individuals (Digby & Harrison 1897:301). Garnsey (2007:177–178) notes that Proudhon (1840) was correct in insisting that the “absolute” nature of property rights in the French Civil Code and other paradigmatic modern legal documents goes back directly to Roman law,
both
to the notion of absolute private property, and to that of the emperor’s absolute sovereignty.

93.
The idea that Roman property was not a right goes back to Villey (1946), and became mainstream in English scholarship with Tuck (1979:7–13) and Tierney (1997), though Garnsey (2007:177–95) has recently made a convincing case that Roman jurists did see property as a right
(ius)
in the sense that one had a right of alienation, and to defend one’s claims in court. It’s an interesting debate, largely turning on one’s definition of “right,” but somewhat tangential to my own argument.

94.
“The paradigmatic relation between a person and a thing is that of ownership, yet the omans themselves seemed never to have defined it. To them, it was a power relation—a form of
potestas—
directly exercised over the physical thing itself” (Samuel 2003:302).

95.
In earliest Roman law (the Twelve Tablets of c450 bc) slaves were still people, but of diminished worth, since injuries against them counted as 50 percent those of a free person (Twelve Tablets VIII.10). By the late Republic, around the time of the emergence of the concept of dominium, slaves had been redefined as
res
, things, and injuries to them had the same legal status as injuries to farm animals (Watson 1987:46)

96.
Patterson: “it is difficult to understand why the Romans would want to invent the idea of a relation between a person and a thing (an almost metaphysical notion, quite at variance with the Roman way of thinking in other areas) … unless we understand that, for most purposes, the ‘thing’ on their minds was a slave” (1982:31).

97.
It does not appear in the Twelve Tablets or early legal documents.

98.
Dominus
first appears in 111 bc,
dominium
, sometime later (Birks 1985:26). Keith Hopkins (1978) estimates that by the end of the Republic, slaves made up between 30 and 40 percent of the Italian population, perhaps the highest proportion of any known society.

99.
Digest
9.2.11 pr., Ulpian in the 18
^th
book on the Edict.

100.
The examples are from
Digest
47.2.36 pr., Ulpian in the 41
^st
book on Sabinus, and
Digest
9.2.33 pr, Paulus’ second book to Plautius, respectively.

101.
See Saller (1984) on
domus
versus
familia
. The word
familia
, and its various later European cognates,
famille
in French,
family
in English, and so on, continued to refer primarily to a unit of authority and not necessarily of kinship until at least the 18th century (Stone 1968, Flandrin 1979, Duby 1982:220–23, Ozment 1983; Herlihy 1985)

102.
Westbrook 1999:207 goes through the three known cases of this really happening. It would seem that the father’s authority here was considered identical to that of the state. If a father was found to have executed his child illegitimately, he could be punished.

103.
Or to enslave them. In fact the Law of the Twelve Tablets (III.1) itself seems to be an attempt to reform or moderate even harsher practices, as al-Wahid (Elwahed 1931:81–82) was perhaps the first to point out.

104.
Finley notes that the sexual availability of slaves “is treated as a commonplace in the Graeco-Roman literature”
(1980:143; see Saller 1987:98–99, Glancey 2006:50–57).

105.
There is a lively debate about whether breeding slaves was ever extensively practiced in Rome: one common theory of slavery (e.g., Meillassoux 1996, Anderson 1974) arguing that it is never profitable to do so, and when a supply of new slaves is cut off, slaves will ordinarily be converted into serfs. There seems no reason to weigh in on this here, but for a summary, see Bradley 1987.

106.
True, Roman citizens could not legally enslave one another; but they could be enslaved by foreigners, and pirates and kidnappers rarely put too fine a point on such things.

107.
The Chinese emperor Wang Mang was so fastidious on this point, for instance, that he once ordered one of his own sons put to death for the arbitrary murder of a slave (Testart 1998:23.)

108.
The
lex Petronia
. Technically it bans owners from ordering slaves to “fight the wild beasts,” a popular public entertainment: “fight,” though, is usually a euphemism, since those fighting hungry lions were not provided with weapons, or obviously inadequate ones. It was only a century later, under Hadrian (117–138 ad), that owners were forbidden to kill their slaves, maintain private dungeons for them or practice other cruel and excessive punishments. Interestingly, the gradual limitation of the power of slave-owners was accompanied by increasing state power, expansion of citizenship, but also the return of various forms of debt-bondage and the creation of dependent peasantry (Finley 1972:92–93; 1981:164–65).

109.
Thus Livy (41.9.11) notes in 177 bc the senate actually passed a law to prevent Italians who were not Roman citizens from selling relatives into slavery in this way in order to become citizens.

110.
The phrase is preserved in the work of the elder Seneca
(Controversias
4.7) and noted by Finley (1980:96), among others. There is a detailed discussion in Butrica 2006:210–23.

111.
Wirszubski 1950. On the etymology, see Benveniste 1963:262–72. Similarly Kopytoff and Miers (1977) emphasize that in Africa, “freedom” always meant incorporation into some kin group—only slaves were “free” (in our sense) of all social relations.

112.
Florentius in Justinian’s Institutes (1.5.4.1). Some suggest that the word “natural” in the first sentence was only inserted in later editions, perhaps in the fourth century. The position that slavery is a product of force enshrined in law, contrary to nature, however, goes back at least to the fourth century bc, when Aristotle (Politics 1253b20–23) explicitly takes issue with it (see Cambiano 1987).

113.
Already in the that century, lawyers like Azo and Bracton began asking: If this is true, wouldn’t that mean a serf is a free man too? (Harding 1980:424 note 6; see also Buckland 1908:1, Watson 1987).

114.
Ulpian wrote that “everyone was born free under the law of nature” and that slavery was a result of the
ius gentium
(“law of nations”), the common legal usages of mankind. Some later jurists added that property was originally common and the
ius gentium
was responsible for kingdoms, property, and so on (Digest 1.1.5). As Tuck notes (1979:19), these were really scattered ideas, only systematized by Church thinkers like Gratian much later, during the twelfth-century revival of Roman law.