Chapter XXV: Appendix: IV

(LECTURE VIII., PAGE 169 FOLL.) 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 portee fort restreinte. Peu a peu il a gagne du terrain, il a entrepris de reglementer des rapports qui autrefois etaient du domaine de la religion. Pendant longtemps a Rome le droit theocratique a coexiste 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 roem. 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.