Chapter

Roman Law and Order: From Free-Market Ideology to Abolitionism

Dan Edelstein

in On the Spirit of Rights

Published by University of Chicago Press

Published in print December 2018 | ISBN: 9780226588988
Published online May 2019 | e-ISBN: 9780226589039 | DOI: https://dx.doi.org/10.7208/chicago/9780226589039.003.0005
Roman Law and Order: From Free-Market Ideology to Abolitionism

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Another source for Enlightenment understandings of natural law was Roman law. The Corpus juris civilis was a primary reference for classical ideas about natural law, and a model for early-modern jurists. One of them, Jean Domat, crafted an influential legal treatise that sought to give French laws a natural foundation. A Jansenist, Domat sketched out an Augustinian vision of a self-regulating natural order, foreshadowing liberal economists. The universalizing scope of these arguments raises a historiographical problem: why weren't more of the philosophes abolitionists? Lynn Hunt’s thesis about the role of empathy in the historical extension of rights should in fact be reversed: it was precisely because we tend to only empathize with those who most resemble us (as Rousseau and Smith both noted) that rights were not easily extended to all. If many Enlightenment writers did ultimately come around to abolitionism, it was in large part due to a new reading of Roman law. Eighteenth-century writers refused to recognize a law of nations that contradicted the law of nature. Accordingly, the ancient Roman axiom that “according to natural law, all men were originally born free” (Institutes, 1.2) acquired new force when restated by Montesquieu.

Keywords: Domat; Jansenism; Malebranche; natural order; slavery; Montesquieu; abolitionism

Chapter.  10409 words. 

Subjects: Intellectual History

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