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Roman Empire | Roman Religious Practices
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APPENDIX IV - IUS AND FAS
In historical times the two kinds of ius, divinum and
humanum,
were strongly distinguished (see Wissowa, R.K. p. 318, who quotes
Gaius ii. 2: "summa itaque rerum divisio in duos articulos diducitur,
nam aliae sunt divini iuris, aliae humani"). But it is almost certain
that there was originally no such clear distinction. The general opinion
of historians of Roman law is thus expressed by Cuq (Institutions
juridiques des Romains, p. 54): "Le droit civil n'a eu d'abord qu'une
portée fort restreinte. Peu à peu il a gagné du terrain, il a
entrepris
de réglementer des rapports qui autrefois étaient du domaine de la
religion. Pendant longtemps à Rome le droit théocratique a coexisté
avec
le droit civil." (See also Muirhead, Introduction to Roman Law, ed.
Goudy, p. 15.) Possibly the formation of an organised calendar, marking
off the days belonging to the deities from those which were not so made
over to them, first gave the opportunity for the gradual realisation of
the thought that the set of rules under which the citizen was
responsible to the divine beings was not exactly the same as that under
which he was responsible to the civil authorities. The distinction took
many ages to realise in all its aspects, and is not complete even under
the XII. Tables or later, because the sanction for civil offences
remained in great part a divine one; on this point Jhering is certainly
wrong (Geist des röm. Rechts, i. 267 foll.). As Cuq remarks (p. 54,
note 1), one institution of the ius divinum kept its force after the
complete secularisation of law, and retains it to this day, viz. the
oath.
If there was originally no distinction between religious and civil rules
of law, it follows that there were originally no two distinguishing
terms for them. The earliest passage in which they are distinguished as
ius divinum and humanum (so far as I know) is Cicero's speech for
Sestius (B.C. 56), sec. 91, quoted by Wissowa, p. 319: "domicilia
coniuncta quas urbes dicimus, invento et divino iure et humano,
moenibus cinxerunt." But by all British writers on Roman law, and by
many foreign ones, the word fas is used as equivalent to the ius
divinum, and sharply distinguished from ius. Thus the late Dr.
Greenidge, in his useful work on Roman public life (p. 52 and
elsewhere), makes this distinction; he writes of the rex as the chief
expounder of the divine law (fas), and of the control exercised by
fas over the citizen's life. Cp. Muirhead, ed. Goudy, p. 15 foll.,
where Mommsen is quoted thus: "Mommsen is probably near the mark when he
describes the leges regiae as mostly rules of the fas." But Mommsen,
like Wissowa in his Religion und Kultus, does not use the word fas,
but speaks of "Sakralrecht." Sohm, on the other hand (Roman Law,
trans. Ledlie, p. 15, note), compares fas with Sanscrit dharma and
Greek themis, as meaning unwritten rules of divine origin, which
eventually gave way before ius, as in Greece before [Greek: dikaion].
(Cp. Binder, Die Plebs, p. 501.) But it is safer in this case to leave
etymology alone, and to try to discover what the Romans themselves
understood by fas, which is indeed a peculiar and puzzling word. (For
its possible connection with fari, effari (ager effatus),
fanum,
and profanum, etc., see H. Nettleship's Contributions to Latin
Lexicography, s.v. "Fas.")
Fas was at all times indeclinable, and is rarely found even as an
accusative, as in Virg. Aen. ix. 96:
mortaline manu factae immortale carinae
fas habeant?
In the oldest examples of its use, i.e. in the ancient calendar QRCF,
on March 24 and May 24, i.e. "quando rex comitiavit fas" (Varro,
L.L. vi. 31), and QStDF on June 15, i.e. "Quando stercus delatum
fas" (Varro, L.L. vi. 32), it is hard to say whether it is a
substantive at all, and not rather an adverb like satis. So, too, in
the antique language of the lex templi of Furfo (58 B.C.) we read,
"Utii tangere sarcire tegere devehere defigere mandare ferro oeti
promovere referre fasque esto" (liceat should probably be inserted
before fasque esto). See CIL. i. 603, line 7; Dessau, Inscript.
Lat. selectae, ii. 1. 4906, p. 246. In these examples fas simply
means that you may do certain acts without breaking religious law; it
does not stand for the religious law itself. To me it looks like a
technical word of the ius divinum, meaning that which it is lawful to
do under it; thus a dies fastus is one on which it is lawful under
that ius to perform certain acts of civil government, "sine piaculo"
(Varro, L.L. vi. 29). Nefas is, therefore, in the same way a word
which conveys a prohibition under the divine law. By constant
juxtaposition with ius, fas came in course of time to take on the
character of a substantive, and so too did its opposite nefas. The
dictionaries supply many examples of its use as a substantive and as
paralleled with ius, but the only one I can find that is earlier than
Cicero is Terence, Hecyra, iii. 3. 27, i.e. in the work of a
non-Roman.
I cannot find that it is so used by Varro, where we might naturally have
expected it. Cicero does not call his imaginary ius divinum a fas, but
iura religionum, constitutio religionum (de Legibus ii. 10-23, 17-32).
Ius is the word always used technically of particular departments of
the religious law, e.g. ius pontificium, ius augurale, and ius fetiale
(CIL. i. p. 202, is preimus ius fetiale paravit). The notion that
fas could mean a kind of code of religious law is probably due to
Virgil's use of the word in "Quippe etiam festis quaeddam exercere
diebus Fas et iura sinunt," Georg. i. 269, and to the comment of
Servius, "id est, divina humanaque iura permittunt: nam ad religionem
fas, ad homines iura pertinent."
It is strange to find it personified as a kind of deity in the formula
of the fetiales, used when they announced the Roman demands at an
enemy's frontier (Livy i. 32): "Audi Iuppiter, inquit, audite Fines
(cuiuscunque gentis sunt nominat), audiat Fas." Whence did Livy get
this formula? We have no record of a book of the fetiales; if this came
from those of the pontifices, as is probable, the formula need not be of
ancient date, and the personification of Fines also suggests a doubt as
to the genuineness of the whole formula.
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