Spoiler: No. 

A Youtuber I subscribe to, Essential Salts, recently did a collaborative episode with the host of another channel, Gnostic Informer, discussing their various areas of overlapping interests. It was a good example of how early career, but potentially top tier, public intellectuals can collaborate to produce work that is ultimately mediocre. 

This isn’t really a reflection on them, but a limit of the format. They were having and off the cuff discussion, which is the core of most non-fiction content creators’ strategies. It was not as good as the more carefully planned out, (maybe even fully scripted?) episodes Salty Bro, as I like to call him, has produced. 

The written form gives you the time, and the obligation, to be precise in your language choices in a way that talk radio doesn’t. 

At about 41:00 he says:

There’s actually a really interesting remark Nietzsche makes about the Roman legal code—or I guess they’re mores—where it’s like, where I think, where we get the term like “a pound of flesh,” where, you know, basically one of the things a debtor could, you know, if you couldn’t pay, is he would be like, “Well, give me, you know, some amount of his flesh to equal what the debt is owed.” And Nietzsche is bringing that up to make a point—a very interesting point—about how somehow the ability to cause pain to others is like a fungible, like, commodity, which is very odd, but it’s like it has some sort of inherent value. 

He can be forgiven if he’s a little unclear as to whether he is actually saying that it was the case that this was a Roman law, and that Nietzsche is commenting on it. Or is he only saying that Nietzsche said this, without asserting the underlying truth? Does the validity of Nietzsche’s observation (which is subtle and beyond the scope of this blog post) depend on the accuracy of this claim about Roman Law? 

Does he literally mean the phrase “pound of flesh”, which is derived from Shakespeare’s line in The Merchant of Venice, “a pound of your fair flesh”? Shakespeare apparently stole the story from an Italian writer. But he get’s full credit for the line itself, as far as the record shows. 

All of them, along with Nietzsche, seem, however, to be working downstream from an earlier error.

Nietzsche writes, in Genealogy of Morals

But especially has the creditor the power of inflicting on the body of the ower all kinds of pain and torture—the power, for instance, of cutting off from it an amount that appeared proportionate to the greatness of the debt;—this point of view resulted in the universal prevalence at an early date of precise schemes of valuation, frequently horrible in the minuteness and meticulosity of their application, legally sanctioned schemes of valuation for individual limbs and parts of the body. I consider it as already a progress, as a proof of a freer, less petty, and more Roman conception of law, when the Roman Code of the Twelve Tables decreed that it was immaterial how much or how little the creditors in such a contingency cut off, “si plus minusve secuerunt, ne fraude esto.” Let us make the logic of the whole of this equalisation process clear; it is strange enough. The equivalence consists in this: instead of an advantage directly compensatory of his injury (that is, instead of an equalisation in money, lands, or some kind of chattel), the creditor is granted by way of repayment and compensation a certain sensation of satisfaction—the satisfaction of being able to vent, without any trouble, his power on one who is powerless, the delight “de faire le mal pour le plaisir de le faire,” the joy in sheer violence: and this joy will be relished in proportion to the lowness and humbleness of the creditor in the social scale, and is quite apt to have the effect of the most delicious dainty, and even seem the foretaste of a higher social position. Thanks to the punishment of the “ower,” the creditor participates in the rights of the masters. At last he too, for once in a way, attains the edifying consciousness of being able to despise and ill-treat a creature—as an “inferior”—or at any rate of seeing him being despised and ill-treated, in case the actual power of punishment, the administration of punishment, has already become transferred to the “authorities.” The compensation consequently consists in a claim on cruelty and a right to draw thereon.

Nietzsche presents this interpretation of the Roman laws as a non-controversial fact, and perhaps in his time it was accepted as such. But subsequent investigations have thrown considerable doubt, to say the least, on this. Max Radin, a noted American philologist, for example, examined the history of this claim, and argued against interpreting the law as proscribing the physical cutting of debtors. His arguments include:

• The first time this interpretation was expressed was some 500 years after the laws were (according to tradition) inscribed in the public square.
• There are no records of this actually taking place in the 500 year interval.
• Records of orations by Populares figures in Roman politics include frequent references to the unfairness of the Nexum system by which debtors became slaves, but no record of them protesting this even more barbaric custom.
• Defenders of the Roman senatorial order, like Cicero and Livy write defenses of various Roman institutions, responding to these attacks, but never feel compelled to defend this practice (because it seems to have never been attacked, because it never happened).

There’s a great deal of detail and many examples offered to support these points. 

To me it seems also worth noting to me the immediate context of the line which is the 6th of 6 points under “Table III. Execution of Judgment”. These points clearly proceed in chronological order, this, then this, order, saying what will happen and when it will happen. 

According to the translation I am working from, step 5 says:

5. Meanwhile they shall have the right to compromise, and unless they make a compromise the debtors shall be held in bonds for sixty days. During these days they shall be brought to the praetor” into the meeting place on three successive market days, and the amount for which they have been judged liable shall be declared publicly. Moreover, on the third market day they shall suffer capital punishment or shall be delivered for sale abroad across the Tiber River.

Then comes:

6. On the third market day the creditors shall cut shares. If they have cut more or less than their shares it shall be without prejudice.

So in step 5 they are either killed or sold. Then, after that, the debtors take turns cutting pieces out of their flesh and gloating with sadistic delight? 

The key phrase here is actually “on the third market day”. The law, it seems to me, is telling the owners that the money gets split up *that day*. If you are part owner of a slave, just sold, and your partners tell you “I got you homie, I will drop the money round tomorrow”, you can point to this law and say “sorry homie, I need to get the money RN, it’s the law FR”. Anyone who’s done a drug deal, or any other high stakes business, really, knows that a key question is not just how the loot gets split, but when the loot gets split. 

My explanation is not contradictory, I should note, to that offered by Radin, who (being a philologist) goes into great detail about the roots of various words, including that sectores, which detonated a kind of public official who was an auctioneer or auditor or agent or something in the employ of the state. 

So if the debtor had not paid, and nobody wanted to buy them, and it was the end of the third market day, and there were multiple creditors demanding recompense, maybe it went to the sectores to be settled.

This leaves only the phrase “if they have cut more or less than their shares it shall be without prejudice.” Nietzsche posits, and Salty Bro seems to accept, that this means that either they cut too much flesh, physically, or did too much damage, or had too much enjoyment, which are all kind of abstracted up to some higher level truth about the sadism of human (or Roman) nature. 

I suspect the meaning is more akin to: It doesn’t matter if this final pay out matches exactly what you were owed, because there might be more than or less than the exact amount owed to the creditors collectively in the final pot. Once you go through this process and come out the other end, there is no further challenge. 

As Radin writes: 

The old explanation was sanguinary, but picturesque. The hypothesis here suggested is dull and technical. But we may recall that laws do not become less technical as we trace them back in time, but more so. Secare partis, as I should like to render it, is intelligible and has close analogues in Roman legal history.

I could be wrong, but I feel that my view, standing on the shoulders of a century’s subsequent research, and especially on Radin’s, is better than Nietzsche’s.

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Returning briefly to the podcast where I encountered this claim. The host and his guest are both capable of really well structured thought out work. But my concern is that the longer they persist in that ecosystem, the more they succeed, even, the more incentives will work to push them towards a high-volume, low quality product.

One way to push back on this is the adoption of the Stone Research Transparency platform, which allows the creation of video bibliographies, such as the one visible in the research portal below:

By opening a window into the creation of non-fiction digital content, we can give people a way of understanding which content should and should not be trusted – how seriously should any online claim be taken?

A good answer is that it depends on the work done to check and substantiate the claim (in the case of this libel against the Romans, not enough). In the case of this blog post, the research portal above.