In 1540, if a curious European university student asked his teacher where to find the ancient Roman laws, the professor could quickly point him to a wealth of resources. The obvious starting point would be the sixth-century Justinianic compilations of Roman law: the Digest, Codex, Institutes, and Novellae, all with accompanying marginal glosses. The next step would be a more recent work, perhaps the medieval commentaries of Bartolus or the critical treatises of the legal humanist Guillaume Budé. There would be no shortage of options. In the Renaissance, scholarship on the content, context, and interpretation of Roman laws abounded.Footnote 1
However, if this same student asked his instructor where he might find the laws of ancient Athens, he would have been met with an uneasy silence. Athenian law had not survived antiquity in any coherent form. Of course, Renaissance scholars knew that there was law in Athens, and they even knew that fragments of that law were floating around in classical literature. But the law was nothing more than scattered scraps, and no modern scholar had ever tried to reconstruct it. In 1540, Europeans simply had no detailed knowledge of the content, history, or procedure of ancient Athenian law. Although the Renaissance scholar inhabited an intellectual world that was obsessed with antiquity, the law of the ancient world’s second-most famous city was a blank spot on the map, as mysterious as the New World’s Amazon jungles.
By 1650, things had changed drastically. In a little over a century, European scholars reconstructed Athenian law in precise detail. By the middle of the seventeenth century, our inquisitive student would have had at his disposal over a dozen compilations, commentaries, and historical treatises devoted partly or entirely to the laws and institutions of ancient Athens. Over a span of one hundred years, European intellectuals had excavated this legal tradition from the dustbin of history, where it had lain mouldering in obscurity.
Over the course of this century, Athenian law lay at the cutting edge of historical research, and it enticed the top minds in Europe to unravel its mysteries. It snared the attention of the Lutheran reformer Philip Melanchthon, the Italian historian Carlo Sigonio, and the celebrity scholars Joseph Justus Scaliger, Isaac Casaubon, and Claudius Salmasius – all leading lights of European humanist scholarship. Despite all of this, modern scholars know surprisingly little about this pioneering field. The closest thing to a modern academic treatment of the subject is a pair of eighteenth-century Latin essays.Footnote 2
This article tells the unknown story of the European reception of Athenian law in three main phases: foundation, consolidation, and fracture. In the first phase, the highly original works of Philip Melanchthon (1546), Pardoux Duprat (1559), and Carlo Sigonio (1564) – all working in vastly different contexts and from disparate motivations – established the foundations of the field by recovering the basics of Attic legislation, legal actions, and procedures. In the second, the field consolidated around the quest for a comprehensive overview of the law. This phase began around the end of the sixteenth century with an unpublished manuscript by Joseph Scaliger and ended in 1635 with Samuel Petit’s magisterial Leges Atticae. Finally, the field reached its zenith with the high-profile dispute between Claudius Salmasius and Desiderius Heraldus in the 1640s, but the acrimony of the feud caused the study of Athenian law to fracture and fade from prominence until its revival in the early nineteenth century.
What does this story tell us about early modern intellectual history? At the most basic level, it adds to the growing body of scholarship on the complex status of ancient Athens in Renaissance culture. Traditionally, scholars have understood the Renaissance picture of the city to be an exemplar of culture, philosophy, and literature, in contrast to Rome’s institutional, moral, and military prowess.Footnote 3 In recent years, the importance of Athens’ cultural inheritance has been reinforced by a number of excellent studies on the reception of ancient Greek language, literature, and culture as well as the teaching, learning, and printing of Greek.Footnote 4 However, building upon a recent surge of interest in the reception of Athenian democracy, this article demonstrates that Renaissance scholars were interested in – and made use of – the legal aspects of Athens alongside its literary and philosophical output.Footnote 5
The story of Athenian law also offers a window into the various purposes and techniques of early modern history writing. The texts examined in this article illustrate how scholars approached a historical problem with no clear starting point. Whereas a scholar of Roman law began with a body of texts – the Justinianic Corpus juris civilis of the sixth century CE – and used ancient literature, philology, and text-criticism to correct, refine, and explain these texts, the study of Athenian law required a different approach. There was no authoritative collection of Greek laws from antiquity; there was no Attic Justinian.Footnote 6 Moreover, Greek law was entirely foreign to early modern Europeans. It was not a part of contemporary jurisprudence and it had no place in legal education. And whereas the scholars of Roman law had prior interpretations and compilations to question and correct – such as the Justinianic compiler Tribonian and the medieval commentator Accursius – students of Athens had no obvious point of departure. Rather, clues were scattered throughout ancient literature in what one seventeenth-century scholar referred to as ‘antiquities’, which he defined as ‘relics of an ancient era, not unlike the planks of some shipwreck’.Footnote 7 The metaphor was apt. The student of Athenian law found himself lost at sea, trying to build a ship out of flotsam.
As a result, the study of Athenian law was a synthetic project aimed at reconstructing the Attic legal system through a broad reading of classical literature. As these scholars studied texts which touched on law, including oratory, drama, and history, they searched for clues about how Athenians handled legal matters. Instead of seeking to understand a particular text, these scholars sought to piece together the context from which Athenian literature emerged. With the exception of some peripheral interest in legal development and change over time, this was predominantly a movement concerned with, in Arnaldo Momigliano’s terms, creating ‘static descriptions of the ancient world’.Footnote 8 The study of Athenian law produced synchronic snapshots, not diachronic narratives.
Such a project required a distinctly historical mode of reading ancient texts. Except for the fact that these scholars lacked Attic inscriptions, which were held in Ottoman-occupied Greece, they largely proceeded from the same primary sources used by modern experts on Greek law.Footnote 9 When these Renaissance scholars perused the rhetors Demosthenes and Lysias, they were not looking for insights into oratory and eloquence, as one might expect of a typical humanist reader. Similarly, they did not study the dramatists Sophocles or Euripides for entertainment or for lessons on morality. Instead, as these scholars read ancient Greek literature, drama, rhetoric, and history, they were looking for clues about the inner workings of Athenian legal culture. In approaching Greek texts, these thinkers did not ask ‘How should I speak?’ or ‘How should I act?’. Rather, the guiding question behind their study was ‘How did ancient Athenian law function?’. If the famous humanist Gabriel Harvey read his Livy to be ‘studied for action’, ready to face the political and moral challenges of his day, these students of Greek law perused their Demosthenes, Pausanias, and Aeschines to understand the minutiae of the Athenian legal system.Footnote 10 And whereas other emerging antiquarian sciences focused on material sources such as coins, inscriptions, and charters, this was a literary antiquarianism that pieced together ancient society from texts by treating those texts as historical artifacts.
Notwithstanding these distinctive features, the study of Athenian law was part of a broader wave of historical interest in ancient law. In its methodology and aims, this movement shared many similarities with the study of Roman, Hebrew, and feudal law which flourished in the sixteenth and seventeenth centuries.Footnote 11 The approach to historical sources was similar; just as Melanchthon read Demosthenes or Aeschines to reconstruct the laws and legal institutions of Athens, legal humanists like Guillaume Budé were consulting Suetonius, Pliny, and Donatus to clarify the details of ambiguous Roman legal terms like libellus and decretum.Footnote 12 In addition, the problems of reconstructing ancient law were hardly unique to scholars of Greece. The French jurist François Baudouin pieced together the ancient laws of Romulus and of the Twelve Tables by dissecting the Corpus juris civilis and comparing it with other Roman sources while the historian Etienne Pasquier used primary sources such as chroniclers, papal bulls, and acts of parliament to construct a compelling narrative of French history.Footnote 13 The study of Greek law was part of a broader early modern movement to assemble the scattered testimonies of antiquity into a coherent system.
Above all, the study of Athenian law was an attempt to recover a usable past, to reconstruct the testimony of a brilliant ancient society that had a range of flexible applications. In the early decades of Greek legal studies, figures such as Melanchthon compared Athenian law with Roman and Hebrew laws to assert the transhistorical validity of divine legal standards. Other theologically-minded scholars viewed Greek law as a missing link which, together with Rome and a detour through Egypt, could trace modern European law all the way back to the Mosaic laws. Reconstructed Athenian law naturally had scholarly uses too; Scaliger revealed that he penned his own study of Greek law for his private use, and later figures such as Hugo Grotius recalled using Scaliger’s eminently helpful collection. Greek law even occupied a significant role in discussing transformational economic issues, as when the Huguenot scholar Claudius Salmasius relied on arguments from Athenian jurisprudence to demonstrate the legality of interest-bearing loans. In a Renaissance world obsessed with the value of ancient culture, this was a project that aimed to produce a useful body of knowledge. The story of Athenian law is the story of how these scholars invented the legal history of Athens and put that history to use.
I
Ever since Byzantine scholars fled to Italy after the Ottoman capture of Constantinople in 1453, Western Europe had seen a revived interest in the culture of ancient Greece. Most of their interest was directed towards literature and philosophy, although, in the first decades of the sixteenth century, occasional references to law began to appear. At first, discussions of Greece in legal contexts were used to clarify the Roman laws. For example, humanist jurists applied Aristotelian philosophy to interpretations of Roman legal concepts such as aequitas. Footnote 14 Scholars such as Andrea Alciato and Gregor Haloander sought to restore those passages of the Digest which were originally written in Greek.Footnote 15 Occasionally, Athenian law had comparative uses, too; the Italian scholar Annius of Viterbo and the French jurist Guillaume Budé had drawn superficial parallels between the Athenian Areopagus and the Roman Senate, and the Neapolitan jurist Alessandro Alessandri occasionally referenced the laws of Solon in his discussions of Roman jurisprudence.Footnote 16 A detailed study of Attic institutions appeared in 1541, when the famous French orientalist Guillaume Postel published his De Magistratibus Atheniensium.Footnote 17 Postel studied offices, not laws, but his work demonstrates that interest in Athenian legal and political institutions was emerging by the 1540s. This section will examine the three works which established the foundations of the study of Athenian law.
The proper study of the law of Athens began in an unlikely time and place: Wittenberg, 1546, as Reformation-era Germany became engulfed in its first large-scale confessional conflict. In the midst of the Schmalkaldic War between Protestant German princes and the Catholic Holy Roman Emperor Charles V, the humanist reformer Philip Melanchthon, thrust to the helm of the evangelical movement only months after the death of his colleague Martin Luther, published a brief document entitled Collatio actionum forensium Atticarum et Romanarum praecipuarum [A Comparison of the Chief Attic and Roman Legal Actions]. This work has not received extensive scholarly attention until recently, but it constituted the first serious attempt to recover Athenian law.Footnote 18
The work focused on the Attic legal actions, which were procedures or suits which private citizens could bring against accused lawbreakers. In other words, the actions constituted the majority of what Athenian citizens could ‘do’ with the law. Melanchthon identified around forty of these actions, organizing them under the rubric of the Ten Commandments and comparing them with corresponding Roman actions. For example, under the fifth commandment prohibiting murder, Melanchthon included the procedures against murder, hubris (flagrant assault), aikia (assault), and kakēgoria (defamation), alongside the Roman actio iniuriarum (action for injuries).Footnote 19
Melanchthon intended this work to make a theological point. The organizational schema, centred around the Decalogue, demonstrated that ancient pagan laws aligned with the transhistorical realities of the divine and natural law.Footnote 20 As he wrote in the preface, ‘[Law] is the eternal wisdom in the divine mind and the unchanging rule of justice which God poured into the minds of men. He willed this light to be born within us, and afterwards, on Mount Sinai, he proclaimed it with a brilliant testimony.’Footnote 21 But this theological idea also had political dimensions. In organizing the Athenian and Roman actions according to the Ten Commandments, Melanchthon illustrated that unchanging moral and legal standards held steady across the centuries. Melanchthon’s emphasis on natural law in the Collatio also served to bolster his theory of resistance against Emperor Charles V, which relied upon the idea that Charles had violated the unchanging law of nature.Footnote 22
As the preeminent Hellenist in Germany, Melanchthon was uniquely well-suited to such a project. During his time as a professor in Wittenberg, Melanchthon had taught, translated, or published on Greek authors ranging from the ubiquitous Aristotle to more obscure figures such as the poets Phocylides and Theognis.Footnote 23 Melanchthon put this vast knowledge of Greek literature to use in collecting the Athenian actions. His most prominent source was the orator Demosthenes, whose legal speeches provided a solid source base for examining Greek law, but he occasionally turned to other orators like Lysias and Aeschines as well as historians like Pausanias and Xenophon.
Although Melanchthon’s work was highly original, it was also brief and lacking in detail. The work occupied a slim octavo volume of only sixty pages, and his treatments of the actions were uneven. In some cases, Melanchthon explained the procedures and punishments, while in others, the explanations were quite cursory.Footnote 24 Moreover, Melanchthon’s portrait of Athenian law was static and paid little attention to historical development or change over time. Despite these shortcomings, Melanchthon’s Collatio was an impressive and original work. Working from scratch, he had managed to reconstruct the majority of the Athenian legal actions, and aside from a few errors, his work was generally accurate.Footnote 25 Writing in the midst of a confessional war, Melanchthon had managed to create a new field of academic study.
The next decisive step in the field came in 1559, when the French jurist Pardoux Duprat produced a work examining the primitive origins of Athenian jurisprudence. In a volume entitled Iurisprudentia vetus: Draconis et Solonis leges, Duprat gathered and presented the laws of Solon and Draco in a coherent body.Footnote 26 Over the first 179 pages of the volume (the latter sections covered the Twelve Tables and the laws of Romulus), Duprat recounted and explained eleven laws from Draco and eighty-six from Solon.Footnote 27 Draco’s laws treated mostly criminal issues such as theft and various types of homicide, while Solon’s encompassed a broad range of subjects, including intestate succession, guardianship, legislative procedure, and public support for war orphans. After listing each law in Greek, Duprat provided its Latin translation, cited its source, and then offered commentary explaining laws in detail.
As Duprat announced in the preface, the purpose of the work was to gather the scattered laws into a single body.Footnote 28 Eschewing any subheadings or biblical organizational scheme like Melanchthon’s, Duprat opted for a thematic organization. He was self-conscious of the artificial nature of his collection, admitting that, ‘I do not deny that I have thrown Plato, Herodotus, Demosthenes, Aristotle, Cicero, Plutarch, Ulpian, Gaius, Aulus Gellius, Diogenes Laertius, and Alessandro Alessandri into one massive heap. … I arranged them such that each law appears to rest upon the next in an order that is easy to follow.’Footnote 29
Duprat’s project was motivated by the idea of historical continuity among ancient and modern legal systems. For example, in discussing a statute about compensation for felled trees, Duprat claimed that the law was mentioned by Demosthenes, confirmed by the Roman jurist Ulpian, and now mirrored in royal statutes of Francis I and Henry II.Footnote 30 Writing in 1559, on the cusp of the French wars of religion, Duprat was searching for sound legal principles which could potentially provide some stability in a violent time. In the preface, dedicated to one of Henry II’s advisers, Duprat hints that this interest was even shared by the French king himself. He wrote, ‘For it seemed advisable to summon [Solon and Draco] into our present turmoil, for even our best, most powerful, and unconquerable prince Henry II seems to have asked for the same thing … and with good reason.’Footnote 31
Central to Duprat’s work was the idea that each major historical civilization had drawn its laws from the societies that came before it. God had given laws to the Hebrews at Sinai. From there, the Athenians borrowed from the Hebrews by way of Solon’s journey to Egypt – a legal twist on the broader Hermetic concept of the transmission of Israel’s culture via Egypt.Footnote 32 Regarding the Solonic law that a prince who was found drunk was to be put to death, Duprat stated: ‘It seems that Solon borrowed this law from Moses’ Pentateuch’, a claim confirmed by a pair of marginal citations.Footnote 33 Next, he argued that the Romans had drawn from Athenian law. Referring to an account from Livy, Duprat noted that, when the Roman Decemvirs sought to establish the first Roman laws, they sent envoys to Athens to learn about their legal system.Footnote 34 As a result, Duprat explained, ‘the Roman people used some of the Draconic and Solonic laws’, and, by virtue of that, ‘we [i.e. the French] still use that same civil law today’.Footnote 35
The implication of all of this was that Greek law was the missing link that could provide an unbroken chain from Sinai to Paris. Duprat wrote, ‘Indeed, I have illuminated the laws of Draco, Solon, Romulus, and the Twelve Tables with my commentaries, in which I have consulted the decrees of the Hebrews, ancient Greeks, Romans, and French. I have joined them all together such that they all mutually explain each other, even as if each one depended on the others’ [emphasis added].Footnote 36 For Duprat, Athenian law was one of the world’s great legal traditions, and it helped the reader understand sacred history, classical antiquity, and even modern France.
Melanchthon and Duprat approached Athenian law from a fundamentally comparative viewpoint. In this sense, they were part of a broader movement in the middle- and late-sixteenth century which sought to link Sinai to classical pagan antiquity and even modern Europe. The late antique Collatio Legum Mosaicarum et Romanarum, first edited and printed in 1574 by Pierre Pithou, quickly became a popular work of comparative law.Footnote 37 Jean Bodin, although he did not produce a systematic reconstruction of Greek law, made frequent references to Athens alongside Rome, Israel, and modern nations as he constructed his system of universal jurisprudence.Footnote 38 In 1603, the Pomeranian jurist Joachim Stephani (best known as the originator of the phrase ‘cuius regio, eius religio’ formulation to describe the 1555 Peace of Augsburg) wrote a comparative work which traced the idea of sovereignty from Moses through Egypt, Athens, and Rome to modern Germany. In Stephani’s words, ‘[A]ll honourable laws which are spread throughout the world among various peoples, empires, or kingdoms, emanate from the laws and commandments of Moses, as if from a sacred fount of divinity’.Footnote 39 Such arguments also had obvious political importance, such as legitimizing the sixteenth-century reception of Roman law in Germany or reinforcing divine affirmations of princely rule in an era of growing princely authority.Footnote 40 And although, as we shall soon see, the study of Greek law quickly progressed beyond these early works, they still retained some relevance. As late as 1668, a work appeared which contained Melanchthon’s Collatio as well as Duprat’s schema of the Solonic and Draconic laws.Footnote 41 The field would soon eschew these comparative and theological approaches, but the works of Melanchthon and Duprat laid the foundations for what would follow.
One of the major contributions of Renaissance historiography was the emergence of an institutional approach to legal history. Whereas medieval jurists such as Accursius and Bartolus of Sassoferrato followed the mos italicus in seeking to resolve the textual contradictions within the Roman laws, Renaissance legal humanists of the burgeoning historical tradition began to consider how Roman law had operated within Roman society.Footnote 42 Scholars began to take on new questions: how did the laws interact with social institutions? What were the legal mechanisms for enforcing the laws? By the 1560s, these contextual questions had arrived at the forefront of Athenian legal scholarship.
The first institutional historian to make use of the new science of Athenian law was the Bolognese scholar Carlo Sigonio, who in 1564 published a work entitled De republica Atheniensium.Footnote 43 Sigonio was a keen scholar of ancient institutions and constitutional structures, and he also published studies of Hebrew society and Roman history and colonial jurisprudence.Footnote 44 Yet while Sigonio is best known as a historian of Rome, he also made two great contributions to the study of Greek law. First, he provided a narrative history of the Athenian constitution. The opening line of the work explains this goal: ‘The Athenian people, whose ancient laws and entire republic we have decided to treat here in these commentaries, did not use just one type of republic, nor did they use one in perpetuity, but they used different types according to their circumstances and the variety of the times.’Footnote 45 In the first book, Sigonio walked through Athens’ original government under kings as well as the development of democracy under Draco, Solon, and Cleisthenes. Whereas previous treatments had been synchronic, Sigonio introduced a diachronic element to the study of Athenian law.
Sigonio’s second contribution was his detailed explanation of Athenian legal procedure. In addition to examining the Athenian constitution, civic institutions, and magistrates, Sigonio enumerated and commented upon sixty-five Athenian legal actions (a considerable advance; Melanchthon had only listed around forty), and became the first person to highlight the distinction between the graphai (public actions) and the dikai (private actions).Footnote 46 But Sigonio’s commentary upon procedural details also broke new ground. In his explanation of legal procedure at the Areopagus, Athens’ major legislative body, Sigonio devoted over twenty pages to the minutiae involved in bringing a legal action, ranging from the swearing of oaths to the selection of the jury to the handling of witnesses.Footnote 47 Whereas Melanchthon and Duprat had been more interested in recovering the content of the Athenian laws, Sigonio was the first scholar to devote sustained attention to legal process. Sigonio provided a picture of the Attic justice system in action.
II
These early studies of Athenian law emerged independently from highly disparate contexts, and many of these works adopted a comparative approach or aimed to illuminate some facet of universal legal history. Athenian law was not yet an independent or coherent field of academic study. However, due to the prominent authorship of these early texts, the subject began to gain a reputation as an exciting field of classical scholarship. The foundational works had flowed from the pens of scholarly celebrities; after Erasmus’ death in 1536, Melanchthon was arguably the greatest Hellenist in northern Europe, and Sigonio was the preeminent ancient historian in sixteenth-century Italy. As the field became established, other famous scholars flocked to it. Henri Estienne (Stephanus), the master of Greek printing best known today for his edition of Plato’s dialogues, was prompted to investigate the mysteries of Athenian law while preparing his monumental 1575 edition of the Greek rhetors. In the preface to that work, he declared:
Therefore, I affirm that these orations contain a greater repository of doctrine than anyone would believe at first glance. And indeed, in the first place, I declare that many things which pertain to the origins and (so to speak) foundations of jurisprudence or civil law may be drawn from them, if one attentively considers the laws which are cited word-for-word, or at least generally summarized, or likewise if one considers the decrees or plebiscites, various formulas for legal oaths, various rites and many other things which the ancients created by custom or decree.Footnote 48
The potential of these oratorical sources was so appealing that Stephanus contemplated including his own collection of Greek laws as an appendix at the end of the volume, an addition which unfortunately never appeared.Footnote 49
By the last decades of the sixteenth century, the field was prominent enough to attract two of the leading lights of the late Renaissance intellectual firmament: the Huguenot polymaths Isaac Casaubon and Joseph Scaliger. Casaubon, like his father-in-law Stephanus, never got around to publishing a work on the subject, but his library illustrates that legal questions were at the top of his mind as he perused the Greek orators. In his personal copy of Demosthenes’ orations, Casaubon’s notes barely touched on the typical humanist themes of oratorical technique or moral formation. Instead, Casaubon illustrated the new method of reading the Attic orators for their value in understanding Athenian law. For example, in his annotations on Demosthenes’ Against Leptines, which revolved around the issue of leitourgia, or public taxes, Casaubon’s marginalia treated the details of these taxes, the legal requirements to pay them, and possible exemptions from them.Footnote 50 Similarly, in the margin of one of the hypotheses (prefaces) to that same speech, Casaubon’s notes called attention to the fact that the graphē paranomōn, the specific type of trial at which Leptines was tried, carried a one-year statute of limitations.Footnote 51 Casaubon’s reading style was characteristic of this new approach to Athenian law. In addition to being repositories of Greek eloquence and moral wisdom, the works of Demosthenes were now firmly established as mines of historical information about legal procedure.
Despite Casaubon’s interest, he never produced a synthetic work on Athenian law. Instead, the next major step in the field was the work of Casaubon’s friend, the eminent antiquarian Joseph Scaliger. In an undated manuscript now held at the Leiden University library, Scaliger had compiled a list of Athenian laws, at the top of which he had scrawled the title ‘Pandektēs Nomōn Attikōn’ (Pandects of Athenian Laws). The manuscript was written almost entirely in Greek, and Scaliger’s tidy hand fills thirty-four folios.Footnote 52
It is difficult to determine exactly when Scaliger composed this work. As Anthony Grafton has shown, Scaliger developed an interest in ancient law in 1570, when he found himself in Valence under the tutelage of the great French jurist Jacques Cujas. There, Scaliger began a study of the Twelve Tables and soon began to excavate the primitive Roman laws from the grammarian Festus.Footnote 53 However, the first reference to the manuscript in Scaliger’s correspondence does not appear until October 1594, when Pierre Pithou had requested the work from Scaliger in order to publish it.Footnote 54 Pithou’s interest seems to indicate that this was a recent project, undertaken in the 1590s. However, all that can be said for certain is that Scaliger had drafted the manuscript before October 1594, and most likely after 1570.
The main body of the work consists in a series of Athenian laws, grouped under general subheadings such as ‘peri gamōn’ (on marriages) or ‘peri dikastōn’ (on judges). While Scaliger provided no overarching organizational schema, the work begins with topics treating the constitution of the city and its citizens, including laws about leaders (archoi), foreigners (xenoi), metics (metoikoi) and slaves (douloi). The next section generally addressed the family, including sections on marriage, legitimate and illegitimate children (paides gnēsioi kai nothoi), adopted children (eispoiētoi), and divorce (apopompēs). The following sections treated legal procedures, economic laws (nomoi emporikoi) and contracts (symbolaia), and a range of actions against offenses such as injury (blabē), adultery (moicheia), and flagrant assault (hubris). Alongside these laws, the marginal space is crammed with notes cross-referencing related passages in other ancient writers.
Scaliger’s main contribution was to broaden considerably the source base for Athenian law, taking advantage of the rapid advances in late-sixteenth-century humanist classical scholarship. While the manuscript makes no mention of Melanchthon, Duprat, or Sigonio, Scaliger followed his predecessors in drawing from the obvious sources like Demosthenes, Aristotle, and Pausanias. However, Scaliger adopted a more expansive approach, turning to sources such as Diogenes Laertius and Diodorus Siculus, the rhetoricians Pollux and Aelian, the Hellenistic philosopher Ammonius, and the Byzantine scholar Thomas Magister. One of his major innovations was to use these sources to fill in the context and background of the laws. For example, the Greek grammarian Harpocration’s lexicon of the Attic orators offered detailed explanations of terms and concepts found in Greek oratory. Scaliger used Harpocration’s work to define more fully legal concepts such as aikia (a type of assault) and explain further social contexts, such as customs surrounding Athenian dowries.Footnote 55 Similarly, Scaliger cross-referenced legal citations that he had found with attestations from other pieces of Attic literature. For example, when he cited a Solonic law on inheritance from Demosthenes, he corroborated it with a passing reference drawn from Plato’s Laws. Footnote 56 As Scaliger assembled his collection of laws, he constantly pointed himself to other ancient sources which could provide further details on context, terminology, and history. In lieu of a commentary, Scaliger produced a list of laws embedded within a web of citations which invited further research.
As a number of incomplete sections indicate, Scaliger left the document unfinished.Footnote 57 Moreover, Scaliger himself apparently did not think much of the work. In response to Pithou’s request to publish the text in 1594, Scaliger declined on the grounds that it was too insubstantial.Footnote 58 Despite Scaliger’s own tepid appraisal, he had produced the most complete collection of Athenian legal citations to date. Not only had he incorporated a broad range of additional sources, but his work presented a detailed list of Athenian laws in their original Greek text. It was a treasure trove for students of Greek antiquity.
For this reason, other scholars hoped to get their hands on the unpublished work. But because the document was unfinished, Scaliger was highly protective of the manuscript. In 1605, he wrote to the French scholar Charles Labbé that ‘I never intended [the Athenian laws] for publication, just like several other things which I have collected for my own private use.’Footnote 59 Indeed, as Casaubon revealed, Scaliger expressly forbade the publication of the document in his will.Footnote 60 While the text was never published, it still attracted a great deal of attention from scholars around Europe. The Dutch jurist Hugo Grotius, one of Scaliger’s onetime students, tantalizingly claimed that he had used the manuscript, although he did not specify why he was interested in the text.Footnote 61 Apparently, the Leiden library had lent out the work at least once; in 1637, Claudius Salmasius related that he had viewed the manuscript in France while Daniel Heinsius, the librarian, had loaned it to another scholar who was working on Greek law.Footnote 62
For other scholars, the library’s protectiveness could be a source of frustration. In 1634, the great Hellenist Johannes Meursius, who had just published a treatise on Solon in 1632, was working on a broader treatment of Athenian law. In a letter to Meursius, the Dutch Hebraist Petrus Cunaeus complained that, while certain parties had gone against Scaliger’s wishes by publishing his correspondence, they still refused to publish the manuscript. Meursius responded that he shared the concern, ‘But my Themis Attica, or On the Laws of the Athenians, a work which I have begun to compose, will someday fill in this gap.’Footnote 63 Scaliger’s mysterious work was highly desirable, but it also set a standard that other scholars now sought to surpass.
As this wave of interest in Scaliger’s manuscript demonstrates, by the turn of the seventeenth century, scholars had begun to strive for a systematic and comprehensive overview of Greek law that surpassed the piecemeal works of Melanchthon or Duprat. This desire for a definitive approach coincided with surging interest in Greek legal history beyond Athens. In 1591, the German jurist Conrad Rittershus (who also republished Melanchthon’s Collatio in 1618) published an oration on the ancient laws of Zaleucus of Locris and Charondas of Catania.Footnote 64 Two years later, in 1593, the Danish courtier Niels Krag produced a sophisticated description of the Spartan state and a detailed reconstruction of its laws.Footnote 65 Jurists interested in constructing early modern maritime law were drawn to study the commercial laws of Rhodes.Footnote 66 Interest in more contemporary Greece, spurred by increased diplomatic and scholarly contact with its contemporary Ottoman rulers, even spawned an interest in recovering Byzantine civil and canon law.Footnote 67 Greek law and institutions had also become entrenched as acceptable objects of university study; in 1609, the Danzig professor Bartholomaeus Keckermann supervised a pair of disputations on Athenian and Spartan political organization, which included several sections on legislation.Footnote 68
As part of this growing interest in all things Greek, a steady stream of works touching upon Athenian law appeared in the early decades of the seventeenth century. The aforementioned Dutch Hellenist Johannes Meursius was especially prolific. In addition to treatments of Athenian magistrates, the Areopagus, and the lawgiver Solon, which he published between 1622 and 1632, Meursius ventured to describe the laws of Athens as well as those of Crete and Rhodes, although those works were not published until much later in the century, well after his death.Footnote 69 Similarly, in 1632, the Frisian historian Ubbo Emmius published a work entitled Graecorum Respublicae. Footnote 70 The first volume was devoted to Athens and Sparta, and the second covered, in several cases for the first time, the institutions and histories of Greek polities such as Crete, Corinth, Thebes, Syracuse, and Corcyra, and even smaller islands such as Samos and Chios. Printed in Amsterdam by Elzevier Press as part of the ‘Republics’ series, which provided comprehensive information about foreign countries, Emmius’ work fed into a growing European curiosity for learning about other societies, both ancient and modern. Emmius’ work also highlighted the symbiotic relationship between history-writing and philological scholarship. As Emmius quoted liberally from the magisterial 1572 Latin-Greek Demosthenes edition produced by Hieronymus Wolf (himself a Melanchthon student), he referred to Wolf as ‘a most erudite translator’, illustrating how new and improved editions of ‘primary texts’ were paving the way for more synthetic monographs on institutional and narrative histories of Greece.Footnote 71
Yet while the works of Meursius, Emmius, and others continued to chip away at the vast problem of reconstructing Athenian law, a definitive approach did not appear until 1635, when Samuel Petit, a Huguenot pastor and professor of Greek at Nîmes, published his magisterial 600-page Leges Atticae. Petit’s work seems to have been accepted as the definitive word on the subject, and the appearance of the book caused at least one other prominent scholar to abandon his own project: The celebrated French philologist Henri Valois (Valesius) ceased his own work on the subject when Petit’s text appeared.Footnote 72 Likewise, in a work on Attic oratory published in 1614, the French magistrate and classical scholar Philippe-Jacques de Maussac promised to provide fuller discussion of certain legal topics in a forthcoming work which he referred to as his ‘Synagogen legum Atticarum’ (Collection of Athenian Laws).Footnote 73 This work never appeared, although it is unclear whether this was due to Petit’s work or to some other cause. Leges Atticae also inspired imitators. In 1645, the Dutch historian Antonius Thysius the Younger produced his own description of the Athenian constitution with an accompanying list of laws. In a 1742 reprint of Petit’s work, the eighteenth-century editor wrote in the preface that he considered Thysius’ work ‘poorly-written … and largely copied from Petit.’Footnote 74
As the most comprehensive collection of Athenian laws to date, Petit’s work deserved its lofty status. The first fifty-five pages of the work displayed a collection of roughly 400 laws in parallel Greek and Latin columns, far surpassing the earlier collections of Melanchthon, Duprat, and even Scaliger. In the preface, Petit consciously asserted that he was attempting to do for Athenian law what Justinian had done for Roman law: ‘Therefore, because we do not know the order of laws proposed by Solon and written in the tablets, in this our collection, as much as possible, we have followed the footsteps of Emperor Justinian in dividing ancient law and composing a new Codex.’Footnote 75 Yet while Petit compared his work to the Codex, his organizational system was his own. He distributed the laws into eight books which dealt with the following subjects: 1) religious laws, 2) laws and citizens, 3) public offices, 4) trials and procedures, 5) economic laws, 6) marriage and family law, 7) criminal laws, and 8) military statutes.
In addition to its comprehensive scope, the crowning achievement of Leges Atticae was the extensive commentary which stretched for over 550 pages and provided an immense wealth of detail on procedure, sources, and social context. For example, under one Solonic law, a woman who wished to divorce her husband was required to present a petition of divorce (libellum divortii/ta tēs apoleipseōs grammata) in person before the Archons.Footnote 76 In the commentary on this law, Petit clarified that both men and women could initiate divorce, and explained why each of these processes had its own name: apopompē (‘sending away’), the term for a divorce initiated by a husband, was not exactly accurate for a divorce initiated by the wife, since she would be the one to leave her husband’s household. Petit also explained the reasoning behind the laws; requiring an in-person divorce petition would allow for an open airing of grievances. Petit followed all of this with notes on procedure, specifying in this case that the Archons were responsible for assigning judges for divorce cases.
Petit also used the commentary to explain the various sources for his laws. Here, too, he departed from earlier scholars. In the preface, Petit had informed readers that, ‘Advisedly, however, I have omitted those laws which are found in the writings of the rhetors. For although they speak about all the things done at Athens, nevertheless, they have invented many things to serve the argument of their speeches.’Footnote 77 Petit’s claim was not entirely accurate; his work still incurred a large debt to Athenian oratory. In his commentary on the first book of laws alone (roughly 100 pages), Petit invoked Demosthenes as a chief witness to at least seven of the fifty-three laws treated there, and he regularly referred to orators such as Lysias, Lycurgus, Isocrates, and Aeschines.Footnote 78
Petit’s critical eye toward the Attic orators demonstrated a growing awareness of the validity and bias of historical sources of Athenian law. He recognized that legal speeches were not always objective presentations of the law, or of the facts. Moreover, he recognized that certain speeches attributed to Demosthenes – for example, Against Neaera – may not even have been authentic.Footnote 79 In this sense, Petit appears surprisingly modern in the way that he interrogated his sources for bias and subjectivity. At the same time, his careful contemplation of sources also reflected a larger shift towards a more capacious source base, a shift that we have already seen in the work of Scaliger (and it is possible that Petit was the unnamed scholar to whom Heinsius had lent Scaliger’s work).Footnote 80 Like Scaliger, Petit had begun to incorporate a wider variety of ancient sources, including the rhetoricians Libanius, Aelian, and Hermogenes, the historian Eusebius, and the grammarians Harpocration and Athenaeus. These later sources provided corroboration, detail, and correction to the often-unreliable presentations in the Attic orators.
Even before the publication of Leges Atticae, the broader scholarly community eagerly awaited the work. As Hugo Grotius wrote in a letter dated to October 1634, ‘I eagerly desire to see Petit’s Attic Laws, in order to know whether it improves in some way upon Scaliger’s prior collection, which I remember using.’Footnote 81 On 8 January 1635, Petit had sent a draft of the work to Grotius, requesting his advice on the work. By the end of March, Grotius, busy in France on a diplomatic assignment from the Swedish Crown, wrote back that he had received the work, although there is no evidence that he gave Petit any comments on the text.Footnote 82
Despite Grotius’ eagerness to see the Leges Atticae, it seems that Petit’s work had little influence on the Dutch jurist’s own projects. In 1642, Grotius published a revised version of his On the Rights of War and Peace (original 1625), a work which relied on innumerable citations of ancient Hebrew, Greek, and Roman laws. It appears that Grotius did not use Petit’s work to revise his own uses of Athenian law.Footnote 83 However, later Grotian commentators, such as Johann Heinrich Boeckler and Johann Friedrich Gronovius, certainly used Petit’s work to explain various citations to Athenian laws that Grotius had left behind in his magnum opus.Footnote 84 As these examples illustrate, Petit’s work was the standard starting point for any discussion about Greek law from its publication until the late eighteenth century. The work was so influential, in fact, that it was reprinted in 1742 with improved references and a new index. Petit was even cited over fifty times in Meier and Schömann’s 1824 Das Attische Process, the foundational work which inaugurated the nineteenth-century study of Attic law. In the Leges Atticae, Petit had created a reconstruction of Athenian law that would remain unsurpassed for nearly two centuries.
III
The history of a burgeoning academic field would be incomplete without at least one instance of bitter scholarly quarrelling. In the 1640s, the study of Athenian law followed a path familiar to professional historians: after the appearance of a definitive work, the field quickly fractured into acrimonious debate. From 1640 until 1650, the study of Greek law was defined by an immensely learned and vicious controversy between the Paris jurist Didier Hérauld (Heraldus) and Claude Saumaise (Salmasius), one of the most prolific and famous classical scholars of the mid-seventeenth century.Footnote 85
The story begins with an argument about usury. In the late 1630s, Salmasius had accomplished something truly monumental by providing an intellectual justification for Christians to charge interest on loans, which had been largely outlawed in previous medieval and Renaissance jurisprudence.Footnote 86 In a trilogy of enormous volumes published between 1638 and 1640, Salmasius departed from the traditional Aristotelian opinion that money was merely a medium of exchange, arguing instead that money was a commodity that could be traded, sold, and – most importantly – rented out for a fee.Footnote 87 The implication was that, because money was a commodity just like lumber or stone, a lender could lawfully charge a borrower for the use of his money. Salmasius’ works constituted a major shift in European thinking about interest-bearing loans, and Max Weber called Salmasius’ 1638 De usuris liber ‘The first theoretical justification of interest’.Footnote 88
But what did Athenian law have to do with usury? Primarily, it was crucial to Salmasius’ claim that usury was lawful according to the ius gentium.Footnote 89 Because the ancient Greeks and Romans had charged interest, the argument went, it must be acceptable according to the law of nations, and therefore acceptable in terms of natural and divine law. The Attic (and Roman) use and regulation of usury proved that charging interest on loans was an acceptable practice. This very argument highlights the usefulness of Athenian law; in a world obsessed with the authority of antiquity, the legal opinions of the Greeks and Romans set highly influential precedents.
Yet while Salmasius’ position on usury was contentious, his opinions on Athenian law were even more contentious, at least in the view of the Parisian jurist Heraldus. Controversy exploded in 1640 when Heraldus published his Observationum et emendationum liber [Book of Observations and Emendations]. This modestly-titled work was technically a collection of corrections to accepted understandings of Greek and Roman laws, but in reality, the ‘observations’ and ‘emendations’ constituted a vicious attack on Salmasius and his interpretations of Greek law in the usury trilogy. Salmasius was enraged, and in 1645 published a response, the Miscellae defensiones [Miscellaneous Defenses].Footnote 90 Salmasius’ work proceeded to dismantle his rival’s book, chapter by chapter, with plenty of personal insults thrown in for good measure.
Heraldus was slower to respond than Salmasius, whose scholarly output was truly prodigious. Yet as Salmasius revealed at the end of the Miscellae Defensiones, he knew that Heraldus was planning to respond with his own commentary on Athenian law.Footnote 91 That work would not appear until 1650, but sometime in 1647–8 there had been a leak. An anonymous friend in Amsterdam had sent Salmasius an early draft of the first sections of Heraldus’ forthcoming work. This allowed Salmasius to publish a pre-emptive rebuttal, the 1648 Specimen confutationis [Proven Refutation]. Salmasius’ opinion of Heraldus’ early draft was not high: ‘If the material that follows is similar to this, and composed of the same quality, there will be no sane person who judges that those things should be refuted which seem worthy of laughter, for this deserves ridicule rather than refutation.’Footnote 92
Heraldus died in the summer of 1649 before his masterpiece could appear. Nevertheless, his planned refutation of Salmasius was posthumously published in 1650 as Observationes ad ius Atticum et Romanum [Observations on Attic and Roman Law].Footnote 93 That work, printed in Paris and occupying over 600 pages of dense, two-column print in a large folio volume, was effectively a refutation of Salmasius’ entire opera, including the usury trilogy, the 1645 Defensiones miscellae, and the 1648 Specimen. All of the aforementioned works constituted a vicious and high-profile debate over the details of Athenian and Roman jurisprudence.
While Petit’s work had consolidated the field of Athenian legal studies in 1635 by establishing a reliable collection of the laws, the Salmasius–Herauld dispute illustrates how the discipline quickly fragmented due to disputes over differing interpretations of those laws. Although usury lay at the origin of the dispute, the controversy had quickly metastasized into a broader debate over the technicalities of Athenian (and Roman) law. For example, one strident disagreement centred around the precise differences between two Athenian prosecutions for assault: the dikē aikias and the graphē hubreōs. Heraldus claimed that the distinction was one of procedure, with the accusation of aikia being a private suit and hubris a public one. In contrast, Salmasius saw a difference of severity, with hubris being the term for particularly flagrant and shocking assaults which offended public morals.Footnote 94 This debate in particular illustrates the compendious knowledge of Greek law which these rivals brought to this dispute; the distinctions between aikia and hubris still vex modern scholars.Footnote 95
Another disagreement centred around whether the Athenian practice of eranos, a type of contribution given by a group of lenders, usually to a friend for the purpose of alleviating a financial hardship, was truly a loan or some other type of voluntary contribution.Footnote 96 Some debates seem so minor as to appear almost meaningless, such as the quarrel over eisangelia, an indictment against public officials. Salmasius claimed that eisangelia was a crime, while Heraldus responded that it was not a crime but an accusation (Salmasius’ reply: ‘Oh, what a dainty point! … Can there even be any accusation without a crime?’).Footnote 97 But while these distinctions may seem unimportant, they often contained important clarifications about legal process. In this case, Heraldus was right to correct an error that stretched from Salmasius back to Melanchthon’s work in 1546; eisangelia was not a crime, but a specific process of impeachment.Footnote 98 In seeking to prove each other wrong, Salmasius and Heraldus provided increasingly fine-grained knowledge of Athenian law.
In these technical debates, Salmasius and Herauld marked a new chapter in the study of Athenian law, in which procedures and laws were now the subject of disparate interpretations. Whereas the primary goal of scholars from Melanchthon to Petit was to recover a reliable picture of Athenian jurisprudence, Greek law had now become the object of intense academic debate. Now that the scholarly lacuna had been filled with detailed reconstructions, culminating in Petit’s Leges Atticae, the focus of the field turned to debates over interpretation.
In addition to Salmasius’ nearly 3,000-page usury trilogy, which had sparked the debate, the controversy between these two scholars occupied four dedicated volumes and over 2,000 total pages. The affair highlights two important points about the status of Athenian law by the mid-seventeenth century. First, this was now a subject worth fighting over. It was not merely a quiet, inert antiquarian subject, but a flashpoint for some of the most brilliant scholars in Europe. These were internationally renowned scholars, and they had chosen Greek law, among other topics, as a suitably learned topic for litigating their rivalry. Secondly, this controversy highlights that Athenian law was a useful subject which could be applied to the most modern of questions – the question about lending and interest which lay at the heart of the early modern emergence of capitalism.
IV
The fifteen years from 1635 to 1650, which saw the comprehensive approach of Petit’s Leges Atticae degenerate into the bitter contentions of the Salmasius–Herauld feud, marked the high-water mark of the early modern study of Athenian law. After 1650, the field receded from view. But the scholarly achievement was astonishing. In 1540, Europeans were almost entirely ignorant of Athenian law. By the appearance of Petit’s Leges Atticae in 1635, it was an academic field in full flower, and by 1640 the field was open to scholarly controversy at the highest level.
It is crucial to reiterate that these early modern scholars viewed Athenian law, above all, as a useful field. At the most basic level, these collections were valuable for scholarly pursuits in that they summarized and analysed a difficult and unknown subject. For any scholar who sought to understand ancient Athenian society, these collections of law were required reading. But, as we have seen, Athenian law was a discipline which had important applications to other areas of Renaissance intellectual life, including political thought, religion, and economics. The discipline was birthed in Melanchthon’s attempt to demonstrate the transhistorical validity of the natural law in a time of crisis. Duprat used Greek law to draw an unbroken line from Sinai to modern France in an era of legal upheaval. Grotius, the most famous jurist of the seventeenth century, demonstrated a keen interest in keeping up with the field. Salmasius found an invaluable resource in Athenian law as he made a pathbreaking modern case for interest-bearing loans. In all of these projects, these scholars were attempting to recover a usable past.
While this article has introduced the major contours of the study of Athenian law in the Renaissance, there is further work to be done. There are technical questions about the recovery of the laws: How did broader classical scholarship, including the production of better and more accurate editions of classical texts, impact the field? Moreover, how reliable were these studies? Answering the latter question will be easier for classicists than for early modern historians like this author, but a promising interdisciplinary project might examine the accuracy of these early modern works in light of their technical and source limitations.
Other salient questions would place the study of Athenian law within the broader context of early modern legal history. Given that Greek law was understood to be a precursor to Roman law, what was the relationship of this field to Roman legal history and jurisprudence? Early modern reception of other Greek legal traditions deserves attention as well. There were a number of works on the laws of Sparta, a city which offered powerful political models of mixed constitutionalism, political accountability, and even oligarchy.Footnote 99 And what of the laws of Crete, Thebes, or Rhodes? We have seen flexible applications of Athenian law to questions of theology, jurisprudence, and economics, but further projects could analyse the various uses and receptions of the subject: Who was reading these works, and in what contexts were they using them? In particular, the Salmasius–Heraldus debate needs further attention, both for the immense volume of writings that the feud produced and to understand the critical role that Athenian law played in arguments over usury. For scholars interested in Renaissance intellectual culture, the varieties of classical reception, and the development of modern historical writing, a promising field awaits.
Acknowledgements
I am grateful to Nicholas Barden and James Q. Whitman for their helpful comments on various versions of this article.
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