The range of application of locatio conductio operarum

So much for Roman labour law, or perhaps rather: so little. Again we pose the question why this area of the law received so little attention from the Roman lawyers and why we do not find any attempt to mitigate the lack of equilibrium inherent in the relationship of employment.

Particularly striking is the lack of any protection against socially unjustified dismissal of the employee.^[1944] As we have seen, the institution of giving notice to terminate the relationship was unknown in Roman law, and that meant that the contract of locatio conductio operarum came to an end either on the expiration of the time for which it had been entered into—this was what normally happened—or, if no time had been fixed, the contract could be terminated at any time by either of the parties.

(a) Status relationships

Again, however, we should not rashly attribute what seems to us to be a highly unsatisfactory state of affairs to a social bias or to sinister capitalistic machinations on the part of the Roman lawyers. For it is important to realize that locatio conductio operarum dealt with only a small segment of the Roman labour market. To a considerable extent,^[1945] the demand for both skilled and unskilled labour was met by slaves, and slaves, of course, did not enter into employment relationships. Their status was determined in terms of potestas and dominium, and it was not on a contractual basis that they worked for their masters. Where the master let out his slave to a third party, this constituted locatio conductio rei, not operarum.^[1946] If, therefore, the services rendered by slaves were excluded from the ambit of locatio conductio operarum, so were the operae which liberti owed towards their former masters (now patrons). These operae were usually rendered on the basis of a promise under oath^[1947] or of a stipulation; for the enforcement of such a promise, the ius civile provided a special action, the actio operarum.^[1948] ^{^[1949] ^[1950]}

(b) The artes liberates

Was locatio conductio operarum thus confined to service transactions between members of the upper classes? It would be wrong to draw such a conclusion.

For not only at the lower, but also at the upper end of the social scale a whole range of services was largely excluded from this type of contract. We are dealing with the so-called artes liberales, activities which could be regarded as worthy of a free man²¹—such as those in which philosophers, advocates, architects, land surveyors or teachers and students involved in studia liberalia engaged.²² These activities did not per se fall outside the scope of locatio conductio operarum; it was, however, regarded as inappropriate and unseemly among the higher echelons of Roman society to work for a wage.^[1951] Thus, "one" did not let one's (professional) services under a contract of locatio conductio.^[1952] A life of otium cum dignitate was the ideal of the Roman aristocracy:^[1953] otium, however, not implying a Mediterranean attitude of "dolce far niente", but providing the opportunity to concentrate one's efforts on the common weal. Only those who did not have to worry about their daily bread were able to seek self-fulfilment by devoting their lives to the service of the res publics.^[1954] A reflection of this attitude was the rather low estimation of labour, as it appears, for instance, from a famous passage of Cicero's de officiis:^[1955]

"Inliberales autem et sordidi quaestus mercennariorum omnium quorum operae, non quorum artes emuntur: cst enim in illis ipsa merces auctoramentum servitutis,... Opificesquc omnes in sordida arte versantur: nee enim quicquam ingenuum habere potest officina, minimeque artes eae probandac quae ministrac sunt voluptatum: Cetarii, lanii, coqui, fartores, piscatores, ut ait Terentius; adde hue, si placet, unguentarios, saltatores totumque ludum talarium."

Sordidus: this is strong stuff. It should not induce us to paint too undifferentiated a picture.

First of all: we are dealing with upper-class attitudes.

Among the Romans of less elevated station, middle-class artisans and traders, for instance, whose circumstances we know of through tombstones and inscriptions, a much more positive view about the value of labour prevailed.^[1956] Secondly, even among the upper classes it was not every type of work (operae, labor)^[1957] that was despised, not even every kind of manual labour. One merely has to think of the anecdotes about Republican statesmen being called away from their plough share^[1958] in order to realize that agriculture enjoyed a special status.^[1959] There can be little doubt that all activities connected with it were worthy of the sweat of even the most distinguished Romans. Thus, it was sometimes not so much the activity as such that was frowned upon, but rather whether the work was done for the working party himself or for a third person. To plough one's own field was in order, but to join the neighbour's workforce to harvest his olives was hardly suitable. But even that distinction must not be carried too far: it was one out of a variety of factors that influenced the social evaluation of labour.^[1960] To work for somebody else's benefit may be highly desirable, and genuinely altruistic behaviour was certainly never looked down upon by the Roman aristocracy. Thus, two further very important and closely connected factors determined the esteem in which a particular activity was held: whether it involved subjection to somebody else's will and whether or not the services were rendered gratuitously. A person who agreed to work for money somehow appeared to have sold himself.^[1961]

Hence the exclusion of the activities of the upper classes from locatio conductio operarum. To engage in philosophy, mathematics, rhetoric or architecture was entirely respectable, as long as it served the purpose of edification, instruction or self-fulfilment. Apart from that, however, the Roman aristocracy felt honour-bound to make their skills available to assist others and operae liberales could therefore also be rendered to third parties.

But this had to happen free of charge. The fiction had to be preserved that the work was done voluntarily, without legal obligation and as a matter of amicitia or public spirit. Take, for instance, the advocacy, a profession that carried high prestige.^[1962] Even though for many it was a professional activity, by means of which considerable sums of money were earned, it was not carried out on the basis of a contract of service. To be asked for help was an honour for the advocatus, and what he eventually received for his services was a ("voluntary") honorarium.^[1963] All this was ancestral or social convention, for a legal prohibition to enter into lucrative agreements does not seem to have existed for any of the more highly rated professional activities. Thus, for instance, physicians were obviously able to work for merces.^[1964] But then the activities of medici in general did not enjoy the same sort of prestige as the other "quaestus liberales";^[1965] medicine was usually practised by slaves or freedmen of Greek or Oriental origin;^[1966] ingenui seem to have remained an exception.^[1967]

(d) Common law (ins civile) and employment relationships

But wherever exactly the "upper" limit of locatio conductio operarum was drawn, it has become clear that this type of contract covered only a relatively small (middle) sector of the services available. If that was so, and if it is also kept in mind that the claims of middle-class wageearners were not likely to come to the attention of the Roman jurists in great numbers,⁴⁰ the somewhat cursory treatment of this branch of law becomes much less surprising. Furthermore, there are other legal systems where the "common" law has not had a major formative influence on employment relationships either. In England, for instance, the courts traditionally paid no attention "to the reality of subordination which lurks behind the facade of contractual equality",^[1968] and as a result

"the worker's obligation to obey the lawful commands given by management and the employer's obligation to remunerate the worker are [regarded as] contractual obligations freely incurred among equals.

Pacta sunt servanda".^[1969]

The whole body of what we today know as labour law has been built up from different sources. One may well ask why this is so: are the courts simply not willing to lift the veil of equality, have they lacked the opportunity of doing so (because exploited workers have had no access to the courts or were deterred from litigating), or are we dealing with an inherent inability of (judge-made) case law to meet the expectations of society and to cope with the challenges presented by individual industrial relations?^[1970] Whatever the answer may be: one

have changed. The Emperors granted them immunitas and other privileges (Below, op. cit., note 36, pp. 22 sqq.). Antonins Musa (a libertus and another pupil of Asklepiadcs) became personal physician to Augustus and was able to cure a severe liver disease of the Emperor by way of hydrotherapy. He received the anulus aureus (entailing equestris dignitas), and a statue of him was made. For further details, see Manfred Just, "Der Honoraranspruch des medicus ingenuus'. in: Sodalitas, Scritti in onore di Antonio Gttarino, vol. VI (1984"). pp. 3072 sqq.; generally on Roman physicians and their medicines cf. Jackson, op. cit., note 37, pp. 56 sqq. From C. 4, 43, 3 it is evident that even in Justinian's time medical practitioners could well be slaves. They were, incidentally, valued at three times the rate of slaves with no trade, and double the rate of skilled slaves (cf. Watson, Failures, pp. 67 sq.).

Did medicine belong to the artes liberales, as opposed to the "quaestus illiberales", activities which could not be reconciled with upper-class status? Cf. e.g. Thomas, (1961) 64 BIDR 241 sqq. (yes); Visky, op. cit., note 21, pp. 73 sqq. (no); Just, Scritti Guarino, vol. VI, pp. 3057 sqq. (at first not, but later on yes). For a detailed analysis of the social status and legal position of medical practitioners cf. Bernard, op. cit., note 23, pp. 57 sqq.; Below, Der Ar~t ini romischen Recht (1953), passim; Visky, op.

cit., note 21, pp. 73 sqq.; Watson, Failures. pp. 66 sqq.

Cf. supra, pp. 348 sq. The same point has been emphasized with regard to English law; cf. Kahn-Freund's Labour and the Law (infra, note 41) p. 35; cf. also Otto Kahn-Freund, "Blackstone's Neglected Child: The Contract of Employment", (1977) 93 LQR 508 sqq., 521.

Kahn-Freund's Labour and the Law (3rd ed., 1983, by Paul Davies, Marc Freedman (eds)), p. 36.

Kahn-Freund's Labour and the Law. op. cit., note 41, p. 35.

All these factors are discussed in Kahn-Freund's Labour and the Law. op. cit., note 41, pp. 29 sqq.

should in any event not blame the Roman lawyers for an exceptional and entirely unprecedented lack of social conscience.

(e) The contribution of Roman law

Finally, the great contributions the Roman lawyers have made even to this field of law must not be overlooked. Two major points, in my view, stand out. First of all, critical as we tend to be today of freedom of contract in labour relations, the move from status to contract, as it occurred during the Roman Republic,^{41 * * ^[1971] represents a considerable advance in the management of human resources. Some of the more radical modern attempts to discredit contract as the basis for the relations between employers and workers, and to think in terms of incorporation and of what has been termed "pevsonenrechtliches Gemeinschaftsverhdltnis"^[1972] have soon become thoroughly discredited. And secondly; the nature of locatio conductio as a consensual contract giving rise to reciprocal rights and duties, the rules relating to merces and the refined way of determining liability and of allocating risks: these have remained essential elements of the contract of service ("'Dienstmiete"} of the continental ius commune. Much of it has been preserved in modern law.^[1973] And even though, for instance, it is often claimed in Germany that labour law has become a distinctive and autonomous field of law, the §§ 611 sqq. BGB still remain of fundamental importance in individual labour relations. Apart from that, they govern all service contracts falling outside the area of labour law, particularly the services rendered by the so-called liberal professions: doctors, lawyers, chartered accountants, etc.^[1974]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The range of application of locatio conductio operarum

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