>>>>Dr. Kyle Harper: Let's continue exploring Roman law by looking at a question that's
a lively debate among contemporary historians, legal historians, and political philosophers.
This is the question what are rights, and where do rights come from? We'll be looking
at this question across many of our lessons but we want to ask specifically in the context
of Roman law, are there rights in Roman law and more particularly, what do we mean by
that? Are there human rights are there natural rights? And so we'll take our conversations
a step further by trying to define those and in looking at Roman law and asking if they
exist within the legal system of the Roman Empire. Roman law, after all, says that justice
is the will to give each person what they are due, to give each person their jus, to
give each person their right. And if Roman law sees justice as an attempt to give each
person what they are due, then we must say what is it mean by this concept of right?
Is it similar to our concept of human rights or natural rights? We've talked about rights
going back to some of our first lessons looking at Hohfeld's system of what a rights claim
means, and we've seen that rights can have different kinds of aspects. They can be claims,
they can be privileges, they can be powers, they can be immunities. And it's important
to keep that conversation in mind as we think about this problem. Now let's think about
the nature of rights from another direction. Let's think about not what kinds of powers
or claims rights have or make, but instead where do rights come from? How are they specified?
And let's think in terms of three different kinds of origins for rights. One is simply
what we can call a legal right. Some kind of just claim that can be enforced by law,
and so a legal right is specifically a right that's enforceable by law. A kind of claim
that an individual can make that can be enforced by the state because it's just, legal right.
Then let's think of civil rights. Civil rights. Now when an American says civil rights we
think particularly about the kinds of rights to participate in political life that are
guaranteed in our constitutional system and we think more particularly about the kinds
of political rights in our own history that were denied to certain categories of even
citizens, especially the legacy of race and the civil rights movement that guaranteed
political rights, that guaranteed the rights of participation to African-Americans, rights
that were protected and guaranteed like voting. And so civil rights more generally are rights
that flow from citizenship and so a legal right is specifically a right that's enforceable
by law generically. Civil rights we mean the rights of the citizen that flow simply from
the fact of his or her citizenship. And so when we say civil rights we're talking about
an origin. We're talking about the place that those rights flow from and why they are justified.
They are the rights of the citizen. A third category though, what we can think of as human
rights. These are sometimes called natural rights, sometimes more blandly individual
rights, and those may have different connotations but let's think of them as human rights. Legal
rights are rights that are specified at law, civil rights are rights that flow from citizenship,
human rights are this special category of rights that flow simply from the virtue of
one's humanity. Human rights have a very particular and a very powerful charge in our own political
discourse. To say that something is a human right implies that it's fundamental that it's
something someone has simply by virtue of being human. Do these different kinds of rights
exist in Roman law? There's been extensive debate among scholars whether it's correct
to say that there's even a concept of legal rights in the Roman system of law, because
legal rights are kind of subjective claims that are vested in the individual. But there's
really no doubting that Roman law protects individual legal rights. The Roman law of
property is fundamentally a system for providing the enforcement of an individual's just claims
to have certain kinds of privileges over things. And so there's no doubting that Roman law
can be considered a system of legal rights, a highly specified and complex system of legal
rights. Are there civil rights in Roman law? This is an interesting question, and the answer
is fundamentally again, yes. There are certain kinds of claims that individuals can justly
make that are enforceable in Roman law and that flow from their citizenship. We'll look
in the next lessons at some examples that are well known from the history of early Christianity.
And in fact, one of the most important features of the history of the Roman Empire is the
gradual extension of citizenship across the Roman world. When Rome conquered the Mediterranean
citizenship was still the privilege of Romans and eventually inhabitants of Italy, but over
the course of the centuries the Romans ruled this Mediterranean world and they began to
assimilate its inhabitants. It's one of the hallmarks of Roman Imperialism that the peoples
that it rules gradually become Romanized. And so the French to this day think of themselves
as deeply influenced by Roman civilization even though they're not conquered and brought
into the Roman Empire until the age of Julius Caesar. But this is the nature of the Roman
Empire's gradual Romanization, and it happens at different paces in different parts of the
empire. In some places there is severe and violent resistance against Romanization, but
inexorably Roman citizenship and the Roman way of life spreads all across the Mediterranean
world. The Roman citizenship is especially prized because it brings with it certain specific
kinds of privileges, certain civil rights and the rights of the Roman citizen gradually
spread throughout the Mediterranean world until a monumental legal act. In 212, passed
under an empire named Caracalla, decreed that all free inhabitants of the Roman Empire were
to be made citizens. And so we can think of this is a highly symbolic date 212, when Roman
citizenship becomes effectively universal around the Roman world. This was also one
of the greatest generations of Roman law, and that's no accident. This is the generation
that produced the greatest of all the Roman lawyers, a man named Ulpian. Ulpian - the
greatest of the Roman jurists. He himself is from the East Mediterranean, from Tyre.
He rises throughout the Roman Imperial system the Roman administration and becomes a very
high ranking officer of Roman state. He is the most important of the Roman jurists. And
"The Digest" of Roman law, the most important text of Roman law that was compiled in the
reign of Justinian is 40% comprised of the writings of Ulpian. So he's fundamental to
the period of Classical Roman law. He's a provincial; he's from the Eastern Mediterranean,
but rises to the heights of Roman administration because of his talent. And he is a particular
expression of this moment of Roman history when a provincial could rise to the very heights
of power, and he represents this generation when citizenship became universal across the
Roman world. And to a large extent Ulpian's legal writing is part of the context of Romanization
around the Mediterranean. And it's been asked: does Ulpian's legal thought allow for a concept
of human rights? Ulpian's thought seems to be influenced by Stoicism, a Greek philosophy
that became the ordinary philosophy of many Romans across the Roman Empire that taught
that there was an orderly cosmos, a natural order of things that was discoverable by human
reason and that taught that all individuals had a kind of moral worth, that all humans
were naturally equal in moral terms. And so, there may have been some influence of Stoicism
in Ulpian's outlook. He's certainly influenced by the universalization of citizenship in
his age. And he has great faith in the ability of jurists and in the ability of law. Ulpian
writes that law is the art of the good and the fair and he believes that the jurists
are priests of the temple of the law. So he has a very high ambition for the potential
of law to embody that which is just, and it's therefore been asked does Ulpian envision
a kind of right, a kind of claim that one can have simply by virtue of their being human?
And so I've asked you to look at a number of passages that are from the pen of Ulpian
and to ask, is there a sense in any of these texts that there is a human right?