Early Rome: ius humanum

The earliest event purporting to involve human rights is located in the seventh century BC, in the reign of Tullus Hostilius. As already observed, the Alban leader Mettius Fufetius violates his treaty with Rome: instead of fighting at Rome’s side he waits until the outcome of the battle in Rome’s favour seems assured.

All eyes were turned away from this foul sight. It was the first and last Roman punishment to disregard the laws of human rights [leges humanae]. Usually we pride ourselves on the fact that no nation has favoured milder punishments.¹

Livy reflects a debate on punishment. But when did the debate take place? We recall that Mettius is mentioned in a fragment of Ennius’ Annales.² If that fragment can be given the tentative interpretation that we have noted, the debate would be virtually contemporaneous with Terence’s â€?Homo sum’. But the evidence of the fragment is too fragile to support a firm finding.

Livy again canvasses human rights in an episode dating to 390 BC, when Roman envoys killed a Gallic leader in breach of ius gentium. Although they had violated human rights (violatores iuris humani) they were rewarded with honours (Livy 5.37.4, 36.6). Ius gentium is here a synonym for ius humanum. Ius gentium was defined by the jurists as The reservoir of universal legal rules to which all peoples subscribe’.³ It thus shared the basic quality of universalism with ius humanum. But it was also virtually synonymous with natural law, and the latter in turn embraced human rights.⁴ Demosthenes, we recall, had postulated a similar concatenation.⁵

Ius gentium is also prominent in Livy’s account of Lars Tolumnius, the Veientine leader who in 437 brushed aside humane restrictions and put three Roman envoys to death. In the ensuing battle the Romans killed â€?the breaker of a humane treaty [foedus humanum], the violator of ius gentium.⁶

Still maintaining his impartial stance, Livy has the Samnite general Gaius Pontius justify the war which is to land Rome in the Caudine Forks disaster:

If the strong leave the weak no human rights [nihil iuris humani], I will pray the gods to punish those who, not satisfied with adding the property of others to their own, or with the death of the guilty, want to drink our blood and rend our flesh.

(Livy 9.1.8-10 adapted)

Livy also supplies an example using a different terminology. When the Gauls burst into Rome in 390 men of military age withdraw to the Capitol, leaving the older men outside to die. But no one prevents the women from taking refuge in the stronghold; to have left them outside might have helped the defenders but it would have been inhuman, parum humanum (5.40.4). Exceptionally, it seems, humanitas had taken precedence over the public interest.

Cicero supplies some parallels. Thus, the XII Tables rule moderating the penalty for accidental homicide is â€?a tacit law of humanity—tacita lex humanitatis (Cic. Tull. 51). Other examples are located in the Late Republic. Cicero says that if he were defending a man of humble birth, but still a citizen, he would urge the jury, by reason of the rights of common humanity—communis humanitatis iure—not to surrender a citizen to suborned witnesses (Place. 24). Demosthenes and Polybius would have agreed.⁷

Seneca also makes a contribution. He says that the ill-treatment of slaves should be moderated by commune ius animantium (Clem. 1.18.2). And in furtherance of a point made by Livy (above), he says that a man who feeds on human blood, butchers children and tortures his victims before killing them, severs the bonds of human rights (iuris humani societas) (Ben. 7.19.8-9). We also note the elder Pliny’s comment that using human parts as remedies destroys ius humanum (NH 28.6).