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FIDES IN REGULA POSITA EST, HABET LEGEM ET SALUTEM DE OBSERVATIONE LEGIS (TERT., PRAESCR.

14) LEGAL DESCRIPTION OF THE FAITH BY TERTULLIAN PREPARING FOR CONSTANTINES TURN AND ECCLESIASTICAL LAW? Johannes Quasten, in his handbook of patrology, in common with many authors before him from Jerome of Stridon1 onward, considering the identity of Quintus Septimius Tertullianus wrote: He was an expert in law and gained a reputation for himself as an advocate at Rome. Most probably he is to be identified with the jurist Tertullianus, of whose writings the digests of Corpus civilis include a few excerpts2. Questioning the identification of the African apologist with an unknown lawyer does not affect the fact that no one questions Tertullians knowledge of the law and sometimes his theological system. Jean Danilou clearly states that we can speak about Tertullians theological system3; Eric Osborn in his monograph, as the title implies, regarded the Carthaginian as the first theologian of the West4. A different view was expressed by J. Quasten. He wrote: Tertullian has been called the founder of Western theology and the father of our Christology. However, these are exaggerations, because he never created any system5. Similar reservations were expressed by H. Lietzmann: He had no theological system, but isolated opinions took shape in him in the course of his struggle with opponents. [...] He never intended, however, to use these elements in order to construct a doctrine for the church, nor to give a systematic understanding of redemption through Christ6. A similar opinion, but at the same time pointing to the wide horizons of Tertullian, was expressed by G. Dunn in the most recent monograph on the Carthaginian. He wrote: The form is important for understanding the content. This is why Tertullian the orator, Tertullian the philosopher and Tertullian the writer come before Tertullian the
See Hier., vir. ill. 18. J. Quasten, Patrology, II, Allen 1995, 246 3 J. Danilou, The Origins of Latin Christianity, London 1977, 361-404. 4 E. Osborn, Tertullian the First Theologian of the West, Cambridge 2003. 5 Quasten, 319-20. 6 H. Lietzmann, The Beginnings of the Christian Church. II. The Founding of the Church Universal, New York 1938, 295.
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theologian. [...] even though it must be borne in mind that Tertullian was not a systematic theologian7. So we are confronted by a variety of views of one of the earliest Christian authors writing in Latin, who undoubtedly left a significant mark on subsequent generations of Christian writers8. Many of them revered him as a theologian and as a lawyer. In spite of differences of opinion about the role of Tertullian as lawyer and theologian, his important role in the formation of the Christian doctrine of the Western Church, as it developed a more juridical attitude and approach to the faith, is undeniable. Could Tertullian, who stood at the beginning of Christian Latin literature and was known to be a lawyer, have this influence on the combination of lex et religio in the Western Church? It seems likely that this question can be answered by studying his views on law and religion.in his writings. In the 31 writings of the Carthaginian that have survived legal terminology is very common. For example, the word lex and its derivations is used almost 450 times, and the word ius about 60 times. P. Vitton9 and G. Claesson10 studied as well Tertullians use of other less common legal terms. One may conclude from these observations that the principal legal term used by Tertullian was the ancient Roman word lex. In order to understand Tertullians use of the word lex one must remember that, according to historical testimony, he was living in Rome, where he gained knowledge of Roman law; one must, therefore, be aware of the meaning of the word lex in that law. In the minds of the ancient people the term lex was related to universe, nature (pre-Socratics, Aristotle), destiny, and providence (the Stoics). Some researchers (W. Jaeger, R. Mondolfo) have claimed that the primary use of lex was ethical and social, and only later was it applied to the universe and nature. In an ethical and political sense (in jurisprudence), the word lex was first used in ancient Rome11. The primary meaning of the word lex is a statute passed in the way prescribed by the competent legislative organs, first of all by plebs Romana. With progress in the development of the law, lex also referred to
G.D. Dunn, Tertullian, London-New York 2004, 35. See J.A. Harrill, The Influence of Roman Contract Law on Early Baptismal Formulae (Tertullian, Ad martyras 3), in SP 36, 2001, 275-282; G.L. Bray, The Legal Concept of Ratio in Tertullian, in Vigiliae Christianae 31 (1977), 94-116; D.I. Rankin, Was Tertullian a Jurist?, in SP 31, 1997, 335-342. 9 P. Vitton, I concetti giuridici nelle opere di Tertulliano, Roma 1924. 10 G. Claesson, Index tertullianeus, 3 voll., Paris 1974-1975. 11 See G.P. Flechter, Wok rozronienia ius i lex [Around distinction between ius and lex], in Ius et Lex 1 (2002), 15-33; W. Wodkiewicz, Ius et lex w rzymskiej tradycji prawnej, [Ius et lex in Roman legal tradition], in Ius et Lex 1 (2002), 51-62.
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laws emanating from other sources which had binding force for all, for example the edicts of the Praetors and decrees of the Senate. In the later Empire, the imperial laws were opposed, as lex/leges to ius/iura, but the term leges often refers to the law as a whole regardless of its sources12. Lex meant a legal norm or a law of general application, a legal regulation (the equivalent of the Greek word nomos), whose source was a social union.

1. Lex vetera/lex nova Tertullian used this meaning sense of lex in his writings. He used it in works written in Latin in the circles of Roman culture, but with a totally different conception of the law the Christian conception adapting it to the requirements of the Christian faith. Maintaining the meaning of lex as a law given by a legislator, he acknowledged God as the origin of all law. In Adversus Iudaeos he wrote:
For why should God, the founder of the universe, the Governor of the whole world, the Fashioner of humanity, the Sower of universal nations be believed to have given a law through Moses to one people, and not be said to have assigned it to all nations? For unless He had given it to all by no means would He have habitually permitted even proselytes out of the nations to have access to it. But as is congruous with the goodness of God, and with His equity, as the Fashioner of mankind He gave to all nations the selfsame law, which at definite and stated times He enjoined should be observed, when He willed, and through whom He willed, and as He willed13.

Thus, the Carthaginian, from the beginning of his theory of law, modelled a combination of lex and religio with God as the giver of all laws leges. As a consequence of this assumption Tertullian divided laws (leges) into three types: lex naturalis 14, lex divina 15, lex Dei 16. Lex divina, consisting of many rules and laws, was written down and temporary, whereas lex Dei is eternal17. Here can be seen the religious dimension of the law, as taught by Tertullian, which was absent from Roman law, and its contribution to the juridical approach of Western Christianity. Tertullian taught that God gave to all nations the selfsame law, but a law that had stages, which at definite and stated times He enjoined
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A. Berger, Encyclopedic Dictionary of Roman Law, Philadelphia 1953, 544. Tert., adv. Iud. 2, 1-2 (CCL 2, 1341). See Tert., adv. Marc. II, 17, 5; Pud. 21, 17. 14 adv. Iud. 2; 5 (CCL 2, 1342). 15 Tert, Idol. 4, 1 (CCL 2, 1103). 16 Tert., Cor. 6, 1 (CCL 2, 1046). 17 See Vitton, I concetti giuridici, 17.

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should be observed, when He willed, and through whom He willed, and as He willed18. The first stage was the natural law, then the law of Moses, and finally the law of Christ. In Adversus Iudaeos Tertullian wrote:
Therefore, in this general and primordial law of God, the observance of which, in the case of the trees fruit, He had sanctioned, we recognise enclosed all the precepts specially of the posterior Law, which germinated when disclosed at their proper times. For the subsequent superinduction of a law is the work of the same Being who had before premised a precept; since it is His province withal subsequently to train, who had before resolved to form, righteous creatures. For what wonder if He extends a discipline who institutes it? if He advances who begins? In short, before the Law of Moses, written in stone-tables, I contend that there was a law unwritten, which was habitually understood naturally, and by the fathers was habitually kept19.

God gradually exposed the law to the people. The first stage was the law given in the Garden of Eden. Tertullian named this the primordial law that was given to Adam and Eve in paradise, as the womb of all the precepts of God20. People who were not subject to later laws were regarded as righteous. This law was the origin and source of all laws, both pagan and those given by God-Yahweh; it is common, prevailing all over the world, engraven on the natural tables21. Tertullian taught that pagans, although ignorant of the true God, Jehovah, God Creator of the universe, knew him from the natural law22. Moreover, on the basis of that natural law, everyone has the right to worship the God of their choice:
We are worshippers of one God, of whose existence and character Nature teaches all men, at whose lightnings and thunders you tremble, whose benefits minister to your happiness. You think that others, too, are gods, whom we know to be devils. However, it is a fundamental human right (humani iuris), a privilege of nature, that every man should worship according to his own convictions: one mans religion neither harms nor helps another man23.

So the law and religion are closely joined together and are not mutually exclusive; indeed religion does not abolish the law, but confirms and

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Tert., adv. Iud. 2, 2 (CCL 2, 1341). Ivi 2, 6-7 (CCL 2, 1342). 20 Ivi 2, 4 (CCL 2, 1341). 21 Tert., Cor. 6, 1 (CCL 2, 1046). 22 See Tert., Spect. 2. 23 Tert., Scap. 2, 1-2 (CCL 2, 1127).

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strengthens it. This seems to be an important step in the search for the relationship between lex et religio. The next step in the revelation of Gods law was the law given to Moses on Mount Sinai. According to Tertullian this law had a basis and beginning in the natural law given in Eden: For in this law given to Adam we recognize in embryo all the precepts which afterwards sprouted forth when given through Moses24. For the Carthaginian, Mosaic law was not limited to the Ten Commandments, but it contained all the rules given by Moses to the chosen people during their wandering in the desert. As a consequence, he distinguished between various degrees of binding force of this law. He held that what was permanent or unchanged in the old law was the moral commandments. The Ten Commandments are prima lex dei; sanctissima lex25. Mosaic law was fulfilled, but not abolished, by Christ: For the burden of the law exists unto St. John, not the relief. The yoke of the deeds is lifted off, not that of discipline. Liberty in Christ does not wrong innocence26. The law which remains is summarized thus by Tertullian: And remaining is the whole law of piety, inviolability, humanity, truth, chastity, justice, mercy, benevolence, pudicity27. He proposes that these moral commandments were confined to the first law, the tablets which Moses broke in anger when, having just received them from God, he came down from Sinai only to witness the worship of the golden calf by the people of Israel28. He does not directly describe the contents of the second tablets, which were produced after the destruction of the first. It seems that he thought it likely that they contained the ritual and sacrificial enactments designed for the temporary function of keeping the Jews out of mischief under the old dispensation. That explains the argument advanced in Adversus Iudaeos, in where the Carthaginian wrote that the law given through Moses was not the first law, that which was that given by God to Adam in paradise, lex primordialis consisting of the double commandment to love God and to love his neighbour and that the moral commandments of the Decalogue, observed by the patriarchs before Abraham were applicable to all descendents of Adam throughout the world29. Tertullian wrote in De monogamy: the law has deceased in this
Tert., adv. Iud. 2, 3 (CCL 2, 1341). Tert., Pudic. 5, 1.5 (CCL 2, 1287.1288). 26 Ivi 6, 3 (CCL 2, 1289). 27 Ivi 6, 4 (CCL 2, 1289) 28 See Tert., Virg. vel. 12, 1; Coron. 4, 1-3. 29 See R.P.C. Hanson, Notes on Tertullians Interpretation of Scripture, in Journal of Theological Studies N.S. 22 (1961), 277-278; Tert., adv. Iud. 2, 1-14.
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sense, that its burdens according to the sentence of the apostles which not even the fathers were able to sustain, have wholly ceased30. As God is the giver of the law, so also He is the one who can change it and He is the only one who made that the old law has gone. In his treatise Adversus Marcionem, in which the origin of law was one of the most important issues, Tertullian wrote:
Did he, you ask, wipe out observances he himself had appointed? Better he than someone else: else if it were some other, then that other supported the Creators judgement, by abolishing observances the Creator had himself passed sentence on .But this is not the place for asking why the Creator has broken down his own laws: it is enough that we have proved he intended to break them down, so as to put it beyond doubt that the apostle has set up no rules in opposition to the Creator, since this removal of the law was the Creators intention31.

The abolition of the old law (lex vetera) was manifested in the abolition of the Sabbath, liturgical precepts, sacrifices, circumcision, and other external manifestations of the law32. Lex vetera was replaced by lex nova, lex temporalis by lex aeterna. This was done in ways appropriate for Gods time. In the treatise Adversus Iudaeos Tertullian wrote:
Therefore, since it is manifest that a sabbath temporal was shown, and a sabbath eternal foretold; a circumcision carnal foretold, and a circumcision spiritual preindicated; a law temporal and a law eternal formally declared; sacrifices carnal and sacrifices spiritual foreshown; it follows that, after all these precepts had been given carnally, in time preceding, to the people Israel, there was to supervene a time whereat the precepts of the ancient Law and of the old ceremonies would cease, and the promise of the new law, and the recognition of spiritual sacrifices, and the promise of the New Testament, supervene; while the light from on high would beam upon us who were sitting in darkness, and were being detained in the shadow of death33.

This new law, expanded and supplemented (nostra lex ampliata atque suppleta) 34, is the fulfillment of the old law made by Christ35; it is the old law is fulfilled by love36. Moreover, Christ, by fulfilling and expanding the law

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Tert., Monog. 7, 1 (CCL 2, 1237). Tert., adv. Marc. V, 4, 7 (CCL 1, 673). See ivi V, 4, 12. 32 See Tert., adv. Iud. 4, 1. 33 Ivi 6, 1 (CCL 2, 1352). 34 See Tert., Orat. 22. 35 See Tert., Mon. 7, 1. 36 See Tert., adv. Marc. V, 4, 12.

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and implantating faith in it, brought grace to the law, supplementing it with patience and making it fairer37. But, as well as lex vetera given to Moses, and lex nova brought by Christ, there was always the law proclaimed by the people, the pagan law. From previous knowledge we know that it too, according to Tertullian, comes from divine inspiration. In his writings, however, the Carthaginian devotes much space to the issue of human (pagan) law. As well as the proposition that pagan law has its roots in natural law given in Eden, Tertullian evokes another, so- called theft, theory. This states that all philosophical views, including legal ones, were taken from the Old Testament, which was earlier than all the philosophers and pagan scholars. Tertullian describes human laws in Adversus Marcionem thus:
So then, look not only at the judge, but turn also to the evidences of one supremely good. You take note of his vengeance: think also of when he is indulgent. Balance sternness with gentleness. When you have met with both of these in the Creator, you will also discover in him that in search of which you believe there is another god. Come near then, and carefully inquire into his doctrines, disciplines, precepts, and counsels. You will suggest perhaps that these are regulated even by human laws. But all your Lycurguses and Solons came long after Moses and God, and all things that come later borrow from things which were there first38.

Thus, all the positive qualities which flow from human and pagan laws come in reality from the Gods law. It was originally given by God through Moses to the people, and subsequent pagan laws took their rules and legal foundations from it. It is interesting that Tertullian presents his theory of law using religious assumptions as the basis. For Tertullian the most important feature of human laws is their honesty. In Apologeticum, addressed to the pagans in defence of the Christian faith, he said of laws: How many laws still lie hidden for you to purify, laws which neither antiquity nor the dignity of their framers, but only their fairness (if such there be) commends?39. The injustice and evil of the pagan law are the basic argument for their being human work: If your law has made a mistake, I suppose it is because it was framed by a man, for it certainly did not fall from heaven40 Tertullian wrote.

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See Tert., Pat. 6. Tert., adv. Marc. II, 17, 3 (CCL 1, 494-495). 39 Tert., Apol. 4, 10 (CCL 1, 93-94). 40 Ivi 4, 5 (CCL 1, 93).

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According to him unjust law has no authority41; he recognized that human laws, even if they may have elements of truth from the natural law revealed by God, are burdened with the possibility of error and corruption because man is their main author. In the same Apologeticum Tertullian wrote:
Do you wonder either that a man should have made a mistake in framing a law, or should have come to his senses again when he finds in it matter for emendation? Did not even the improvements made by the Spartans in the laws of Lycurgus himself cause him such pain that he determined to resign office and starve himself to death? Do not even you too, as daily experience throws light upon the darkness of antiquity, lop and cut down all the wild growth of that ancient forest of statutes with the new axes of imperial rescripts and edicts?42

Tertullian placed his observations on the changes in law made by the gentiles in the context of religion. He stated that the gentiles through their law destroyed the worship of the gods. In Ad nationes he wrote:
When I consider the authority of your traditions and values, I find everything in wreckage and ruins. As for your laws, I have already pointed out that day by day you subvert them with new rules and regulations. When it comes to your general way of life, it is plainly apparent how much you have diverged from the ways of your ancestors. When it comes to cult, personal style, attire, diet, even manner of speech, you are rejecting the past as though it were contaminated. The past has been entirely rejected in all of your practices and occupations. Present approval has entirely overruled the approval of your ancestors43.

Human laws, the ancient rules, were changed and spoiled by the people who made the new laws. Moreover, through the accumulation of still-changing laws the false world of the gods was created. For this reason Tertullian wrote in the same work:
It is therefore against these things that our contest lies against the institutions of our ancestors, against the authority of tradition, the laws of our governors, and the reasonings of the wise; against antiquity, custom, submission; against precedents, prodigies, miracles, all which things have had their part in consolidating that spurious system of your gods44.

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See Tert., Nat. I, 6, 7. Tert., Apol. 4, 6-7 (CCL 1, 93). 43 Tert., Nat. I, 10, 4-6 (CCL 1, 24). 44 Ivi II, 1, 7 (CCL 1, 41).

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A particular anomaly of the connection of lex et religio, and a part of the multiplication and spoiling of the laws was, according to Tertullian, recognition of a god through legal regulation:
In the first place, when some of you are worshipping one god, some another, of course you slight the feelings of those whom you do not worship: preference of one is impossible without insult to another, since one cannot even choose without implied blame. It follows therefore that you lightly esteem those of whom you disapprove, and whom you do not fear to offend by your disapproval. For, as I hinted above, the position of each god depended on the opinion of the senate. He was no god whom a man, when consulted, had declined to deify, and by his refusal had condemned45.

As it can be seen it was a deity dependent on man and his judgment which denied the Christian concept of God46. These statements about the law and divinity in ancient Rome appear in the writings of Tertullian in the context of the persecution of Christians, an important factor in consideration of lex-religio. He held that the laws created by man which reduced the rank of gods also punished Christians unjustly47. Moreover, setting the authority of the laws against the truth of Christians thereby affects their fairness, the respect in which they are held and the need to comply with them. 2. Lex nostra A bad law one concerning worship and religion might be placed against the truth of Christians. At this interface Tertullian points to the importance, as quoted in the the title of this paper, to the meeting of lex et religio. In the treatise De praescriptione haereticorum, which contains one of his three rules of faith, Tertullian states: Now, faith has been deposited in the rule, it has a law, and (in the observance thereof) salvation48. Here, therefore, is one more legal formula, that is the rule of faith; which contains a collection of the most important truths of the Christian faith. L.W. Countryman, in his article, Tertullian and the Regula Fidei, made an excellent analysis of the rule, and its use and social background. It is

Tert., Apol. 13, 2-3 (CCL 1, 110-111). See Tert., Apol. 5, 1. 47 See Tert., Nat. I, 6, 4-7; Apol. 4, 10-13. 48 Tert., Praescr. 14, 4: Fides in regula posita est, habet legem et salutem de observatione legis (CCL 1, 198).
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regrettable, however, that he ignored in his study the legal aspect of the rule, which seems unquestionable and very important. According to Tertullian, Christ himself is the author of the rule: This Rule, taught (as it will be proved) by Christ, admits no questionings amongst us49. In Apologeticum he clarifies the way in which this law was developed, emphasizing the role of the Apostles: We, however, at once lay down to the corrupters of our faith that the rule of the truth is that which comes from Christ, passed on through his followers50. Thus the rule is a law that indicates Christian orthodoxy, setting its boundaries in response to existing heresies. As Countryman noted: The regula itself betrays signs of an antiheretical origin [...], is likely to have served an anti-heretical purpose in the second century51. It indicates who is orthodox and who is outside the orthodox community. According to Tertullian, observation of this law gives the right to explore and discuss theology:
Now, provided that the form of this Rule be preserved in its own place, thou mayest seek and discuss as much as thou pleasest, and pour forth thy whole desire for curious inquiry if any point seem to thee to be undetermined through ambiguity or obscure from want of clearness52.

These words of Tertullian relate primarily to heretics, but they are also important for us readers of Tertullians works because they show how far their author went in his interpretation. It is important argument for Tertullians orthodoxy. Returning to our fundamental issue the rule of faith as the law Tertullian says in his writings that he defends that rule against heretical changes and influences. One could also say that, when considering regula fidei as a special kind of law, he applied the legal principles he used when discussing lex humana and lex dei. In their case he had pointed out the principle of the priority and seniority of Gods law over human laws; in the same way when discussing the rule of faith, he states that the law of regula fidei derives from Christ, and it is older than all heretical teachings and subsequent amendments53. In Adversus Marcionem he wrote:
In my statement of case against all heresies my custom is to mark out a short cut on the evidence of dating, claiming that our rule of faith came first and that all heresy is of more recent emergence. [...] Moreover if it is ours Ivi 13, 6 (CCL 1, 198). Tert., Apol. 47, 10 (CCL 1, 164). 51 L.W. Countryman, Tertullian and the Regula Fidei, in The Second Century 2 (1982), 223. 52 Tert., Praescr. 14, 1 (CCL 1, 198). 53 See Tert., Apol. 47, 10.
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which has found its way everywhere, rather than any heretical one, not to speak of Marcion's which began in the days of Antoninus, then the apostolic will be ours54.

So the rule of faith is the primary law and it is the more ancient rule of truth (veritatis antiquiore regula)55. It contains the truths of the faith so, as in the way that the pagan laws were broken by subsequent changes, and the law of the Old Testament was broken by the inventions of philosophers56, the heretics sought to corrupt the rule of faith. However, only regula fidei contains the true tradition of the Gospel; it is not possible to change any part of it or to limit it, because as Tertullian wrote the rule determined for every subject in earlier instances ever since the beginning, makes a precedent for the later also-and the same in the case of the fewer57. In summary, Tertullians view of lex and religio was that these two realities were very closely connected. Traces of that connection can still be seen in Western theology and spirituality. As a frequently read and cited author, his writings probably played an important part in the development of Christian law and Christian understanding of law.
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54 55

Tert., adv. Marc. V, 19, 1-2 (CCL 1, 720). Tert., adv. Herm. 1, 1 (CCL 1, 397). 56 See Tert., Apol. 47, 9. 57 Tert., adv. Prax. 20, 3 (CCL 2, 1186).

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