Of Promulgation and Purpose: Revisiting the Hart–Fuller Debate With the Case of the Archaic Athenian Lawgiver Solon

1. Introduction

This article considers the work of Solon, the most significant lawgiver of archaic Athens,^[1] as a case study within ancient Athens as an ‘“historical laboratory”’ for legal philosophy:^[2] seeking to make it legible in terms of, and relevant toward, a reassessment of the issues at stake between H. L. A. Hart and Lon L. Fuller in their rival theorizing of the nature of law.^[3] The case of Solon is of interest despite—or rather because—of the fact that, as a single figure who laid down laws, an archaic Greek lawgiver would seem prima facie to be as unnecessary a figure for Hart’s positivism as for the common law perspective which Fuller championed. This article contends that, in his activity of promulgating laws for an identified purpose, Solon as an Athenian lawgiver can be best interpreted through a combination of perspectives normally championed by the rival traditions of legal positivism and the common law.^[4] Philosophy of law here meets legal, social and political history.

After providing in the remainder of this Introduction some background on the figure of the archaic Greek lawgiver and on Solon in particular, the argument will be elaborated in three main steps, each of which corresponds to a Part of this article and develops a different element of the sense in which Solon enjoyed authoritativeness as a lawgiver. Part 2 argues that while Solon was enabled to lay down authoritative laws in virtue of having been authorized by the Athenians to take up the exceptional role of ‘lawgiver’ (in one of our sources a role subsumed under the broader category of ‘reconciler’), the authoritativeness of his laws over time inhered in his becoming as lawgiver a focal point by which the Athenians could identify their laws. I adapt and develop a lens from Hart’s theory to propose that in virtue of his distinctive role in the promulgation of the laws, Solon came to play the role of an embodied ‘rule of recognition’ in a rough and ready sense, one which we will need to modify with elements of Fuller’s rival approach in order to make best sense of this historical case.^[5]

Part 3 argues that in considering Solon in relation to the role played by a rule of recognition, we must expand our sense of the potential scope of such a role: to encompass the fact that appeal to Solon (and archaic Greek lawgivers more generally) played simultaneously not only an epistemic function but also a justificatory one. That is, while Solon was authorized to make laws, both the account of his undertaking in his own poetry and the narrative accounts constructed in various later sources, indicate that there was an explicit reason for that authorization. It was in order to serve a specific normative purpose, which I shall label the purpose of social reconciliation (though it is articulated somewhat differently in each source) and interpret as a special case of Fuller’s view of the purpose of law as aiming to subject human conduct to rules. And the reason that it was Solon who was authorized to make laws was explicitly connected to his special ability to realize that purpose. In so doing, I shall argue, he in fact promulgated those laws in a way characterized by most of the eight desiderata included by Fuller in the ‘internal morality of law’. In this way, the case of Solon lends support to Fuller’s contention that when one considers law as serving a particular kind of social purpose, this should tend to generate aspirational pressure toward the realization of such normative desiderata. Thus in making laws for the purpose of social reconciliation (which I interpret as a historical case of Fuller’s view that law aims to subject human conduct to rules), we can make Solon legible as a legal phenomenon, by combining the idea of his having served as an embodied (roughly Hartian) rule of recognition with that of his having become so in virtue of promulgating laws that broadly embodied the (Fullerian) ‘internal morality of law’.

Finally, Part 4 takes up a broader perspective on the question of how and why Solon’s laws remained authoritative over time for the Athenians. Specifically, I argue here that, pace a reading of Solon’s work as a lawgiver by Adriaan Lanni and Adrian Vermeule, the acceptance of Solon’s laws did not rest on or require any formal process of popular ratification. Instead, the authoritativeness of his laws over time rested on a combination of his original authorization to lay down laws, and their subsequent acceptance: a combination that can be understood once again by a combination of Hart (a version of acceptance) and Fuller (insofar as that acceptance is based, as I argue we have reason to believe that in the case of Solon’s laws it was, on a normative evaluation of the laws and their purpose).

This Introduction now turns to provide background on the figure of the archaic Greek lawgiver, focussing in particular on Solon as the most significant of the Athenian lawgivers and the best documented of all the archaic Greek cases (some two dozen). We take our bearings from a summary statement by the historian Mirko Canevaro, speaking of the role of the nomothetēs (lawgiver) in the political attitudes of Athenians in the classical period, who harked back to the archaic figures Draco and Solon (plural, nomothetai) who had played that role:

The authority of the laws derived from the authoritative action of the nomothetes. This conception of the authoritative lawgiver had important consequences. The Athenians, as early as the fifth century BCE, saw Draco and Solon as the authors of their laws…. Because of this, they had an institutionalized understanding that the laws should not be changed; viewed them as separate from the day-to-day administration of the polis, and therefore outside the scope of the action of the normal governmental bodies; they saw them as the province of specially appointed nomothetai acting at special times; finally, despite the fact that Solon’s laws were not strictly speaking a ‘code’, the Athenians understood them as part of a system, the product of a unified rationality, and therefore consistent and coherent.…^[6]

Canevaro highlights that Draco (who legislated in the mid-seventh century) and Solon (who legislated in 594 BCE, in a process considered in Part 2 below) were considered by later Athenians to have been the ‘authors’ of the Athenian laws. And as he indicates implicitly by shifting gears to speak of Solon alone, the ‘laws of Athens’ would become broadly identified with the ‘laws of Solon’ (notwithstanding the fact that later Athenians knew well that subsequent legal changes had been made through various democratic procedures).^[7] As will be observed in Part 3, in identifying their laws as the ‘laws of Solon’, fourth-century Athenians in particular—to focus on the period for which we have the most evidence, including in the corpus of rhetorical speeches by various authors that were seeking to persuade popular juries and other bodies—appealed not only to the original authorization of Solon as lawgiver but also to the purpose which his laws were understood to have been authorized and designed to achieve.

Unlike some of the other great Greek lawgivers, Solon was an indubitably historical (as opposed to legendary) figure, with a high public profile in Athens and Greece more broadly: he was a sage and a poet, as well as an Athenian statesman and lawgiver.^[8] He was born in the late seventh century BCE into an elite family in Athens, whose wealth had been depleted by his father’s excessive generosity, leading Solon to take up the pursuit of trade. Unusually for someone from an aristocratic background, this brought him into contact with many of those on the other side of the basic social cleavage at the time (both in Athens and through travel outside it: Plut. Sol. 2.1): broadly, between an elite group of those belonging to the ‘“leisured classes”’ and constituting perhaps 20% of the free male population, and the other 80%, who would have ranged in wealth and independence from small craftsmen to landless farmers, some of whom were in danger of debt servitude or full-blown enslavement as a result of economic misfortune.^[9] And while I shall not be focussing on it in this article, some of Solon’s most important acts were abolishing the possibility of debt slavery and also cancelling existing debts (even though scholars still debate just what each of these measures actually entailed).

Solon’s engagement in trade and travel, along with his skill in composing and performing poetry, gave him a reputation for wisdom so great as to land him on many of the ancient lists of the ‘Seven Sages’ of archaic Greece. As Cicero would later report:

‘They say that the wisest man in that state [sc. Athens] was Solon, who wrote the laws which they still use today’.^[10]

That Athenian view of Solon, which had crystallized at least by the fourth century BCE and was still in force when Cicero was writing three centuries later, will prove doubly important for present purposes. On the one hand, it will help to explain how Solon could serve as a ‘rule of recognition’ for the Athenians in what I call its justificatory function: why they would be justified in holding him to be capable of making and having made good laws. Appeal to Solon as lawgiver served not just to pick out which were the laws of Athens, but also, to explain why those laws were good: because they were made by an indisputably wise lawgiver. On the other hand, the survival of a corpus of his poems alongside a corpus of his laws helps to explain and identify the purpose that he pursued as a lawgiver (confirming that he pursued the purpose for which the surviving narrative sources tell us he was chosen to pursue). Indeed, Plutarch would refer to his poems as containing ‘justifications for his acts’ (Plut. Sol. 3.3, trans. Perrin).

Two further points of context are important to note. First, Solon, like the other most influential Greek lawgiver, Lycurgus of Sparta (and indeed, I would argue, like all or nearly all of the archaic Greek lawgivers), laid down laws within a polis that already boasted a functioning legal and political system.^[11] In other words, individual lawgivers did not originate all Greek laws; laws could be made by councils or assemblies (in varying ways which developed as the constitutions of different poleis took shape: these were not singular written documents, but complexes of public offices and bodies combined with a set of laws that defined the way that various groups of citizens had a share in the political life of the polis).^[12] It is in this light that Aristotle in Politics named Solon and Lycurgus as examples of lawgivers who laid down constitutions and not simply laws.^[13] Such singular lawgivers typically emerged (usually designated for that exceptional role by a given polis) at moments of political strain or crisis. They promulgated new laws and engaged in the refashioning of various practices and institutions, in pursuing the purpose of reconciling a political community: resolving conflict by setting the community on a new basis.

Finally, a note on sources. The corpora of Solon’s poems and laws are known to us from their crystallization in written sources from the fifth-century BCE onward, and we also have mentions of him in narratives recounted by a number of authors, most extensively the fifth-century historian Herodotus, the fourth-century Constitution of the Athenians, and the second-century CE Life of Solon by Plutarch. It follows that not everything in the laws, poems or narratives gives us the echt voice of Solon (and we know for certain that some of the laws ascribed to him, like some of the stories about him, are not authentic), and each of these sets of sources is shaped by complex factors. Nevertheless, I follow the scholar Adele Scafuro in holding that many of the laws arguably contain what she called ‘a Solonian kernel’,^[14] and with other scholars, that the poems too can be reasonably studied in a similar light.^[15]

2. Solon as lawgiver in light of Hart: promulgation of new laws for Athens

In turning to the main body of this article, I begin by briefly fleshing out the prima facie expectation that both Hart’s positivism and Fuller’s common law perspective on legal theory would seem to have little bearing on any figure of a historical lawgiver since neither approach appeals to any such figure in their own account of legal evolution. In the case of Hart, one might think that the very idea of a lawgiver is antithetical to the evolutionary spirit of Hart’s genealogy and irrelevant to the formation of the requisite ‘internal point of view’.^[16] Indeed, when Hart does mention a lawgiver, he assimilates such a lawgiver to a sovereign king, in arguing that such a king’s issuing of commands cannot explain the authoritativeness of the legal system.^[17]

That Fuller should be equally indifferent, on different grounds, to any appeal to a lawgiver in legal evolution, might be presumed from his championing of the common law tradition: which itself saw lawgivers such as those of archaic Greece as having been unknown and unnecessary within its own evolution. As one seventeenth-century common lawyer observed:

‘… Sir John Davies writes in his Irish Reports (1612): “Neither could any one man ever vaunt, that, like Minos, Solon, or Lycurgus, he was the first Lawgiver to our Nation”’.^[18]

Thus the common law tradition makes no reference to the role of a singular early lawgiver. Indeed, in that same tradition (as Gerald Postema observes), ‘No demonstration of the goodness or wisdom of a rule or practice by any particular person, regardless of his intellectual power, or practical insight, or divine inspiration will suffice’ to qualify rules for ‘status as law’.^[19]

Nevertheless, as we shall see, Fuller did in fact make repeated use of the abstract figure of a lawgiver (as opposed to any specific historical lawgiver) in elaborating his own legal theory. And this makes sense insofar as the purpose of the law which (on the evidence of his writing) Fuller found natural and convenient to express in terms of the figure of a lawgiver, was as important in the reception of Solon as lawgiver as it is in the life of the common law. The archaic Greek lawgiver was not someone who made law arbitrarily, as a mere ‘product of will…validated only by conformity to formal or procedural constraints’,^[20] but rather, someone who was designated to make law in virtue of a recognized capacity for wisdom in pursuing the normative purpose which their laws were understood to serve.

A. Hart On (the Theoretical Irrelevance of) Promulgation

Let us begin with promulgation or rather, the theoretical irrelevance of promulgation, in what one may call the conceptual genealogy of law offered in the magnum opus of the late Oxford philosopher Herbert Hart, The Concept of Law.^[21] Hart asserted that any writing down of legal rules—which is in Chapters V and VI of The Concept of Law the main example he gives of what I call promulgation—is ‘not itself the crucial step’ in the emergence of a legal system’. In his earliest monograph (Early Greek Law) the historian Michael Gagarin paraphrased Hart in The Concept of Law as having asserted that ‘writing plays a crucial role in the transition from the pre-legal to the legal’.^[22] But what Hart had actually said was that ‘the step from the pre-legal to the legal may be accomplished in distinguishable stages, of which the first is the mere reduction to writing of hitherto unknown rules’.^[23] In other words, Hart’s story was not the one told by Gagarin at the time.^[24] Hart did not hold writing to be either necessary or sufficient for the emergence of a legal system.

For present purposes, what matters is Hart’s further assertion that, while ‘an authoritative list or text of the rules…to be found in a written document or carved on some public monument’ ‘may’ play an important role, this is ‘not itself the crucial step’ in the emergence of a legal system. Notice that Hart repeats ‘may’ in making this claim, indicating that writing, and promulgation more generally, are not necessary to his argument. Instead, the crucial step involves what Hart dubbed the emergence of a ‘rule of recognition’: a higher-order rule identifying (and so settling disputes about) which first-order rules count as such – or to simplify for our purposes, a rule identifying which laws are to count as the laws of a given society.^[25]

This rule is no ordinary rule; it need not be written down, nor even formulated or promulgated as any kind of declarative statement. It is rather a kind of practice of acknowledgement, specifically ‘the acknowledgement of reference to the writing or inscription [or, otherwise formulated first-order laws] as authoritative’; and more generally, it is only ‘[w]here there is such an acknowledgement’ that a rule of recognition exists.^[26] That kind of acknowledgement must be incorporated into what Hart calls the ‘internal point of view’, that is, the point of view which says that these are our laws, and indeed, as it were, that these are our laws. Yet, as part of Hart’s positivism, there is no requirement for any kind of moral or normative purpose for the legal system that would be so established. Any set of first-order laws that are acknowledged by means of a higher-order rule of recognition can count as a legal system.

Hart says little as to how the ‘internal point of view’ might in fact arise in any given society. But we can test his theory against the historical case of Solon in Athens. How is it that the Athenian ‘internal point of view’, within which Solon was recognized as a lawgiver and the ‘laws of Solon’ as the ‘laws of Athens’, in fact, arose?

In asking this question, we must recognize that any answer should encompass a wider population than the more limited constituency for the ‘internal point of view’ required by Hart. According to Hart, for a legal system to emerge, the ‘internal point of view’ needs to be held only by the officials of that legal system.^[27] In our test case of ancient Athens, however, that group must be conceived as broadly coextensive with the class of male citizens from at least Solon’s time onward. Solon himself was credited with having established popular courts of law, service on the juries of which was in principle open to all male citizens via a lottery system.^[28] This is because assembly members and jurors – albeit not holding formal offices – belonged to the group of those who shared responsibility for the operation of the legal system.

In that light, I shall seek to answer the question of how Solon’s actions as a lawgiver created an ‘internal point of view’ among the Athenian citizenry generally. The answer may be found in Solon’s actions in making laws, which involved his promulgating them (making them public), which I now describe in more detail. Testing Hart’s genealogy against this historical case will highlight the importance of promulgation—for which writing is very useful, though not conceptually essential—as a point that Hart’s theory tends overly to downplay. It will eventually lead us also to connect such promulgation with purpose, in doing so drawing on approaches inspired by modified versions of both Hart and Fuller, which are conjointly helpful in elaborating an understanding of this particular case.

B. The Authorization of Solon to Make and Promulgate Laws

In 594 BCE, Solon was elected to a preexisting, formal annual office of the Athenian legal system: the office of archon. However, this election gave him no power to make laws, as that was not a power belonging to any established political office in the existing Athenian constitution.^[29] Instead, Solon was authorized to make laws in virtue of additional role(s) which he was, exceptionally, also designated to play. As we shall see, the two main historical sources for this event differ in naming a single additional role (in the Constitution of the Athenians) or rather two additional roles (in Plutarch’s Life of Solon). Yet while neither text explains precisely how the additional role(s) were bestowed, both assert that Solon was authorized to lay down laws within an already existing legal and political system.

To begin with the more detailed account in Plutarch: the biographer describes this as a time of social tension between rich and poor, or elite and non-elite. A movement of the poor to change the constitution (politeia) in their own favour arose. And it was in response to this movement that a group dubbed by Plutarch ‘the wisest of the Athenians’ (who are presented as standing apart, at least in virtue of that quality, from the groups of the rich and the poor alike): ‘saw that he [Solon] was the one man least implicated in the errors of the time; that he was neither associated with the rich in their injustice nor involved in the necessities of the poor’.^[30] They ‘therefore besought him to come forward publicly and put an end to the prevailing dissensions’.^[31]

The result was that Solon:

‘was chosen as archon after Philombrotus and at the same time as reconciler (diallaktēs)^[32] and as lawgiver (nomothetēs)’ (Plut. Sol. 14.2, trans. Lane).

Notice the enumeration of three distinct roles here (as I construe the Greek). The role of ‘archon’ was already a formally established annual office in the strict sense, which at the time was filled by election; the mention of Philombrotus by name indicates that Solon was elected specifically to the office that has become known as the ‘eponymous archon’, in that its holder normally gave his name to the year in the Athenian civic calendar. By contrast, despite the fact that Draco had a generation or so earlier been the first in Athens to have played the role of a singular lawgiver (with very little evidence as to exactly how he was authorized to do so), neither ‘reconciler’ (diallaktēs) nor ‘lawgiver’ (nomothetēs) was an established office. Therefore, there was no formal process for appointing anyone to such a role, and indeed, Plutarch gives no further details (nor does any other surviving source) of the precise process by which Solon was designated to fill these two additional roles. Nevertheless, Plutarch’s enumeration of the three roles in succession sets them on par as roles being authorized within the legal and political system, making it clear that Solon’s authority to lay down laws derived from his civic authorization to do so.

Compare the other surviving narrative source for the episode: the Constitution of the Athenians, composed within Aristotle’s Lyceum in the fourth century BCE.^[33] That text says that, at a moment when the Athenian factional division was strong, the two sides ‘chose in common Solon as reconciler and archon (diallaktēn kai archonta) and entrusted (epetrepsan) the politeia to him’ (Ath. Pol. 5.2, trans. Lane).^[34] While only two roles are enumerated here—the annual office of archon and the extraordinary role of ‘reconciler’—the text goes on to describe Solon’s actions as including the laying down of laws (as we shall see in more detail below).

How, if at all, can these contrasting accounts be made consistent? In my view, the elision of the lawgiver in the Constitution of the Athenians suggests that the role of the reconciler was understood there as encompassing the role of the lawgiver. The role of the reconciler states an explicit purpose while leaving the means to achieve it implicit, with the role of the lawgiver being one means by which that purpose could be pursued. The Constitution of the Athenians presents his activity in laying down laws as part of the means he used to fulfil that purpose, whereas Plutarch calls out the role of ‘lawgiver’ as a separate and additional extraordinary role to that of ‘reconciler’. Both texts can be understood as presenting Solon’s role as reconciler (diallaktēs) as encompassing the reasons and the purposes for which he was designated.

C. The Acceptance of Solon’s Laws and Solon as Lawgiver Over Time

According to both narrative sources, what explains the formal authoritativeness of his laws at the time of their enactment, is thus Solon’s authorization to play the extraordinary role of ‘reconciler’, which was understood to include (or, by Plutarch, to have been supplemented by) the additional extraordinary role of ‘lawgiver’. Yet that authorization, and that authority, could have proven fragile and short-lived, given that ‘reconciler’ and ‘lawgiver’ were not established offices and that the process for endowing those roles on Solon was exceptional rather than routine. The fact that Solon remained authoritative as a lawgiver in Athenian minds for centuries requires further explanation: not to replace, but to complement, the normative significance of his initial authorization.

The historian Michael Gagarin explains the larger phenomenon (already summarized in the Introduction to this article in the quotation from Canevaro) thus:

…Solon… is often said to be the author of all the laws of Athens, including laws that certainly were enacted long after Solon’s time. This attribution may have arisen because until the fifth century, laws did not include a dating formula, so that someone reading an older law would not know whether or not it was enacted by Solon. It then became a convenient fiction to attribute all laws to him.^[35]

I propose that this phenomenon can be understood in part by adapting Hart’s idea of the emergence of a ‘rule of recognition’, so as to consider Solon as having become in Athenian minds the embodiment of such a rule. Acceptance of the laws of Athens as the laws were framed as acceptance of Solon as the lawgiver; as Rosalind Thomas has observed, ‘Fourth-century [Athenian] politicians habitually called Athens’ current laws “the laws of Solon”, even when the laws in question were manifestly recent’.^[36] Thomas has further noted that while the laws of the Athenians were viewed and described as the laws of Solon, this was not because Solon had, in fact, originated all of their content nor was he understood by later Athenians to have done so (they being were well aware that his laws had been preceded by those of Draco, some of which retained authority, and had also been modified and supplemented by subsequent collective processes). Rather, invoking Solon as a lawgiver became a way of pointing to the orienting and authoritative function of Athenian laws. While Draco was sometimes also mentioned, and the figure of the lawgiver was sometimes treated in the abstract, Solon overwhelmingly dominates such references, especially in the fourth-century forensic orators.

Such recognition of Solon as a lawgiver constituted him as a distinctive, paradigmatic and apt focal point for picking out, recognizing and acknowledging the validity of Athenian laws. This process of acceptance and recognition—of the formation of an ‘internal point of view’ accepting and recognizing Solon’s laws as the laws of the Athenians—was facilitated by the formal promulgation of his laws in written form (which was not true for all archaic Greek lawgivers). Solon himself emphasized his use of writing, announcing in one of his poems that ‘I wrote (egrapsa) laws’ for the Athenians.^[37] Moreover, the Athenians wrote his laws up: inscribing them on wooden boards all over Athens (albeit it is not clear whether they did so at his explicit behest):

In those most ancient laws of Solon, which were engraved in Athens on wooden axles and were enacted by him, and which the Athenians made everlasting by the threat of legal and religious punishments.^[38]

So already from Solon’s day, Athenian laws were associated with being promulgated, and specifically, in written form. This association was reinforced in a later episode in Athenian history, in 403 BCE, when, having overthrown a short-lived oligarchical junta, the Athenians doubled down on their use of written laws. They did so in completing a written codification of all of their laws, including laws that had been passed since Solon’s time—though still most often referring to the overall code as the ‘laws of Solon’.^[39] In noting that proclivity among fourth-century Athenians for attributing laws to Solon, Rosalind Thomas has argued that they did so with reference to ‘his intentions in legislating’.^[40] Similarly, in noting that later Athenians found it a ‘convenient fiction to attribute all laws to’ Solon, Michael Gagarin has remarked: ‘This practice also made it easy to think that all Athenian laws formed a coherent set since they all stemmed from the same person’s mind and thus they must all have the same larger purpose’.^[41]

We find this approach evidenced throughout fourth-century Athenian oratory, as Gagarin, Thomas and other scholars have shown. Consider for example this point: ‘Aeschines, in his speech against Ctesiphon, uses Solon to explain why Athens rightly has a law against cowardice, an innate quality that one might think the law should ignore’.^[42] Another example discussed is the way that the orator Demosthenes contrasted one Timocrates, who had proposed a change to the laws that were later indicted as illegal, with Solon as ‘a very different lawgiver’.^[43] This was in virtue of his nefarious purpose or intent as a lawgiver, the opposite of Solon’s wise and benevolent intent. Unlike Solon, Timocrates had put forward proposals that ‘were contrary to existing statutes; and…injurious to the commonwealth…’ (Dem. 24.108). Indeed, Demosthenes elsewhere made a similar move (Dem. 22.25), remarking that Solon ‘“was a very different legislator from the defendant”’, one Androtion.^[44]

It happens, moreover, that one particular way in which Demosthenes charged Timocrates with having legislated illegally, was in seeking to pass a retroactive law (Dem. 24.72-74, 194).^[45] This was a violation of positive Athenian law. But it constitutes also a violation of one of the normative criteria that Part 3 of this article argues are broadly common between Solon’s legal ideal of eunomia and Fuller’s internal morality of law.

3. Solon as Lawgiver in Light of Fuller: The Purpose of Promulgation and the Internal Morality of Law

Part 2 argued that Solon could be viewed as coming to serve as an embodied rule of recognition for the Athenian legal system. Now for Hart, the ‘rule of recognition’ served merely to pick out the existence of a legal system. In technical terms, we can say that Hart focussed solely on the epistemic function of a rule of recognition: in other words, on how acknowledging a lawgiver as their lawgiver enabled people to pick out which laws should count as their city’s laws. I call this epistemic because it indicates a way for people to come to know which laws are the laws. For the Athenians, the figure of the lawgiver could be invoked to answer Hart’s epistemic question of which laws are (count as) the laws. An Athenian would have said, as it were: ‘These laws are the (’our’) laws because they are Solon’s laws’.

But the Athenians also moved beyond Hart’s conception of a ‘rule of recognition’, in that we can also see them as having simultaneously ascribed, to the great lawgivers who played that epistemic function, also a justificatory function.^[46] For Solon was not viewed as having arbitrarily selected just any laws. Rather, he (like similar lawgivers elsewhere in archaic Greece) was ascribed special abilities for selecting laws wisely, and this formed part of the reason for their designation as lawgivers in the first place. I call this part of a justificatory function because it indicates not only a way to know which laws are the laws (the epistemic function) but also, a way to know (that is, a reason to judge) that these laws are good laws. The figure of the lawgiver came to serve both functions. An Athenian might well have said, as it were, in answer to the justificatory question of why these laws, which are our laws, should be considered good laws: ‘These laws are good laws, because they are Solon’s laws, and Solon was a (wise) lawgiver’.

A. Fuller on the Point of View of the Lawgiver and the Purpose of Law

This combining of epistemic and justificatory functions is similar to that at work behind the scenes, I would propose, in the legal philosophy of one of Hart’s most trenchant critics, Lon L. Fuller. To be sure, Fuller mentions no historical cases, no Lycurgus or Solon. Nevertheless, at crucial moments of his monograph The Morality of Law, Fuller invokes the figure of a lawgiver or legislator (he uses both terms interchangeably, as do I). In the chapter on ‘The Morality that Makes Law Possible’—in which Fuller lays out the ‘internal morality of law’ that was central to his critique of Hart—Fuller speaks of having ‘generally’ adopted throughout ‘the viewpoint of a conscientious legislator’.^[47] Likewise, in ‘A Reply to Critics’ in the revised edition of The Morality of Law, Fuller’s argument is structured repeatedly in terms of the figure of a lawgiver and what they must do to establish (good) law.

Why did Fuller adopt this standpoint of a lawgiver? Fuller famously conceived of law in terms of having a purpose (the exact definition of which I shall introduce shortly). As we saw in the Athenians’ attitude to Solon, the very act of conceiving of law as having a purpose seems naturally to invite the conceiving of it as the product of a singular lawgiver—for Fuller as for the ancient Greeks. Indeed, Descartes once reflected on Lycurgus, the possibly legendary venerated Spartan lawgiver, in similar terms.^[48] Thus, for Fuller, it appears that—in viewing law as having a purpose (aspirational in character) and in working out the requirements for the law to be able to attain that purpose (more or less adequately, treating it as a scalar and aspirational ideal)—it became natural to adopt the viewpoint of the lawgiver in doing so.

B. Solon and the Purpose of Law

The ‘purpose’ which Fuller ascribed to the law was a very general and aspirational ideal: ‘to subject human conduct to the governance of rules’.^[49] Achieving that purpose in any specific historical case, however, may require a more robust specification. For to subject human conduct to the governance of rules, depends upon ensuring that both sides in any basic social cleavage are willing to play by the same rules. I would argue that in the first instance, we should see Solon as lawgiver—also described as ‘reconciler’, as noted above—as having sought to pursue Fuller’s account of the purpose of law in just such a context of social conflict. In this perspective, the specific purpose for which Solon was authorized to make laws, while more detailed and contentful than Fuller’s general account of purpose, should be understood not as the alien importation of a substantive purpose, but rather, as a concrete specification of the subjection of human conduct to the governance of rules.

Indeed, the reason that Solon was designated for the exceptional role of ‘reconciler’—a role either encompassing or accompanying, his role of ‘lawgiver’ depending on which narrative we follow—is that Athens was facing a situation of factional civic tension and division (stasis). Solon was recognized to have unique talents and experience suitable to the purpose of addressing such stasis by pursuing social reconciliation. In virtue of his unusual social background-cum-occupation (combining elite status with pursuing trade, as noted above), Solon would have come into contact with a wide range of people across the division between rich and poor, both in Athens and abroad. This formed the basis for a reputation for wisdom, that rested particularly and initially on a skill in composing and performing poetry which first brought him to public notice (Plut. Sol. 8.2-3). In fact, his first intervention in public life was composing and performing a provocative poem, circumventing an Athenian law against reviving a revanchist claim to the island of Salamis, as a result of which he was elected general in the consequent war (Plut. Sol. 8). While these remarks are found in a long-posthumous biographical account, it is clear that the historical Solon played multiple informal and formal roles in Athens, underpinned by a burgeoning reputation for wisdom.

The purpose which Solon pursued as a lawgiver is expressed in his poetry (albeit that this is of course not the sole function of the poetry). The poet states there that he had set himself ‘goals for which I brought the people together’, and that he ‘persevered to the end’ as he had promised.^[50] Among these goals was fair treatment according to law for members of all social classes:

I wrote laws (thesmoi) for the lower and upper classes alike, providing a straight legal process for each person.^[51]

Such an approach to law was part of the task of reconciling social conflict for which Solon was appointed. In response, Solon claims to have positioned himself in a clear-sighted way as a boundary marker, setting a fair boundary between rich and poor in language that is richly metaphorical (combining military and land tenure vocabularies):

… I stood in no-man’s-land

between them like a boundary marker.^[52]

He similarly describes his role in holding up a military shield, a kind of armour:

I have given the masses as much privilege as is sufficient,

neither taking away from their honour nor adding to it.

And as for those who had power and were envied for their wealth,

I saw to it that they too should suffer no indignity.

I stood with a mighty shield cast round both sides and did not allow either to have an unjust victory.^[53]

And he did so by making laws and modifying the workings of institutions and offices. Here is Plutarch’s description of what he was charged to do:

‘They also appointed Solon to reform the constitution and make new laws, laying no restrictions whatever upon him, but putting everything into his hands, magistracies, assemblies, courts-of-law, and councils. He was to fix the property qualification for each of these, their numbers, and their times of meeting, abrogating and maintaining existing institutions at his pleasure’. (Plut. Sol. 16.3)

While Plutarch’s text is a stylized and complex one shaped by his own purposes as an author, it is worth noting that in the biographer’s narrative, Solon first emerged as a ‘reconciler’ in a voluntary and informal way, prior to his formal designation in that role. In an episode of factional civic strife arising from an attempted coup by one Cylon, an episode that is (painted by Plutarch as) prologue to the moment in which Solon will be designated as a ‘lawgiver’, Solon is described as drawing on his public reputation in having ‘come forward to the middle [of the two factions]’^[54] and ‘persuaded’ a group of men accused of having polluted the city in relation to this stasis, to stand their trial and uphold its outcome (Plut. Sol. 12.2, trans. Lane). Here Solon is playing a voluntary role as a kind of reconciler, using persuasion as his tool to do so,^[55] and acting in this voluntary role on the basis of his special intellectual and interpersonal abilities and the public identity which these had given him.

I emphasize this voluntary assumption of a reconciliatory role because it helps to address (at least in Plutarch’s reconstruction of the episode) not only the question of why the Athenians would subsequently designate and authorize Solon to play such a role but also, why they would have been justified in holding him to be able and likely to perform it well. His wisdom, as well as his skill in persuasion (often opposed in Greek binaries to command), could explain the justificatory function for the goodness of his laws that elevating Solon as a great lawgiver could serve.

It is in this light that we can interpret the subsequent events of 594 BCE, when (as I mentioned earlier), according to Plutarch’s narrative: a group of ‘the wisest of the Athenians…besought [Solon] to come forward publicly and put an end to the prevailing dissensions’ (Plut. Sol. 14.1, trans. Perrin). Whilst earlier I highlighted how that account indicated that Solon was engaged in making laws for a purpose, we have now identified a more specific way of articulating that purpose: in Plutarch’s retrospective and philosophically charged terms, to be sure, but also broadly consistent with the goals and achievements proclaimed in Solon’s poetry (itself, of course, a complex set of textual fragments to interpret). What emerges is a composite portrait of Solon (both in his own words, and in the later Constitution of the Athenians and even later Plutarchean Life) as a lawgiver harnessed to the purpose of social reconciliation, both as a natural person with wisdom and voluntary experience uniquely relevant to this task, and in the publicly designated (albeit exceptional) role of ‘reconciler’ that in 594 BCE he was authorized to undertake.

Solon’s purpose can thus be described in broad-brush terms as the purpose of law identified by Fuller: that of ‘subjecting human conduct to the governance of rules’. To be sure, Solon’s purpose in making his laws (and the purpose for which he was chosen and authorized to make them) was descriptively and normatively thicker than the purpose which Fuller ascribed to law. Yet I would contend that it should not be seen as a case of what Fuller sometimes called the ‘external’ morality of law,^[56] but rather, as an instantiation of the basic Fullerian purpose of law, made specific in terms of what was needed in order to implement that purpose in the circumstances of a particular historical moment. For in order to subject human conduct to the governance of rules in the historical circumstances shadowed by recent stasis in Athens, Solon had to reconcile two opposing sides, elite and non-elite, rich and poor, to play by the same rules.^[57]

C. Solonian Eunomia and Fuller’s Internal Morality of Law

In embodying not only a rule of recognition but also the basic normative purpose of law, Solon constitutes a historical case study of a lawgiver whose role and actions can be understood by forging links between modified versions of the approaches of Hart and Fuller. I argue now that Solon’s ideal of eunomia^[58] as articulated in his poetry—a term that can be translated as ‘lawfulness’, ‘good order’, or ‘law and order’—exhibits broadly the same normative desiderata as Fuller’s ideal of the ‘internal morality of law’. While Solon’s reconciliatory purpose in making laws was more historically concrete and specific than Fuller’s, the fact that in making laws he adopted broadly the same normative desiderata, argues in favour of Fuller’s claim that those desiderata are in fact inherent in the nature of law.

To recall again: the purpose of law for Fuller is encapsulated in his statement of the nature of law as ‘the enterprise of subjecting human conduct to the governance of rules’.^[59] He therefore tackled the question of just how the governance of rules and its imposition on human conduct can be achieved in a sufficient (and aspirationally maximal) way. For Fuller, this was a question which Hart had in effect ignored (since for Hart, as a rough approximation, any higher-order rules that are acknowledged as such through a rule of recognition count as laws, without further normative constraints). So to pursue the question where Hart did not, Fuller extended a parable told by Hart about a king and lawgiver dubbed Rex, imagining various ways in which a hapless Rex might try to make laws, but fail for one or another reason. Eight reasons, to be precise, each of which points by contrast to a normative desideratum belonging to the ‘internal morality of law’—and most of which correspond to a normative desideratum in the depiction of Solon’s career.^[60]

Thus we may contrast Fuller on Rex’s possible failures, with Plutarch (and the Ath. Pol.) on Solon’s actual successes. According to Fuller, Rex might variously fail successfully to create a legal system (the existence of which for Fuller is a matter of degree, not a bright-line concept), due to failing (1) to make rules (rather than ad hoc judgments) that are (2) publicly promulgated, (3) prospective, (4) understandable, (5) non-contradictory, (6) possible to follow, (7) sufficiently stable to orient the action of those subject to them, or (8) sufficiently congruent with ‘their actual administration’.^[61]  Table 1 gathers evidence to tally the extent of Solon’s compliance with broadly the same criteria, some of it from Solon’s poetry, some from the Constitution of the Athenians, and much from Plutarch (each of these sources constructing Solon in a certain way and for certain purposes, with differing evidential nature and value): this is not meant to establish incontrovertible facts about Solon, but rather to show that various narrative and literary constructions of his role as a lawgiver took it upon themselves to address these various criteria.

Table 1.

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Assessing Solon on Fuller’s eight desiderata

For Plutarch, Solon doesn’t score perfectly on the desideratum (5) of non-contradictoriness of his laws. However, this is not because Solon’s laws mentioned in this context were formally legally contradictory, but rather only because and insofar as they exhibited contradictory policy impulses. As to desideratum (3): the evidence for Solon’s commitment to prospective as opposed to retrospective legislation is at best suggestive: his poetry shows him to be oriented to the future verdict of time, but this does not show that the content of any particular law could not have been retrospective in a problematic way. Apart from those caveats, the only desideratum of Fuller on which the Athenian lawgiver significantly falls down in Plutarch’s account is desideratum (4): understandability and clarity. However, in discussing that very point, Plutarch offers an explanation which points to Solon’s higher purpose as a reconciler. For the ambiguity of Solon’s laws, Plutarch argues, was deliberate, and designed to give more real power to the popular juries.^[62] So it formed part of Solon’s larger purpose in redrawing civic powers so as to rebalance the powers of the rich and poor.

Thus, overall, the portrayal of Solon by Plutarch (and, more tersely, the Ath. Pol.) highlights his exemplification of most of the aspirational features of law that Fuller would highlight. This lends some support to Fuller’s contention (contra Hart) that such internal normative constraints arise from the nature of law: not necessarily so, but at least with an elective affinity exhibited in this historical case. That a wide range of sources for so paradigmatic a lawgiver portray him as having acted in line with these various desiderata, supports the thought that they do play a role in the nature of law: to be sure, law explicitly made with an eye toward a normative purpose of its own.

Fuller had presented the internal morality of law in the context of his larger critique of Hart and of legal positivism more generally. The aspirational requirement that law should seek to embody the eight desiderata, puts a normative constraint on the kind of law that could count as law (beyond the sheer acceptance of a rule of recognition alone). In the historical case of Solon as lawgiver, both his authorization to act and the subsequent development of a practice of acceptance of his laws (broadly constituting a kind of ‘rule of recognition’) were predicated on a recognition of his unique ability to successfully pursue the purpose for which he was selected and authorized (and so the presumptive success of his laws in realizing that purpose). The purpose of social reconciliation is an historical exemplification, which involved a specific kind of normative and descriptive thickening, of Fullerian purpose; its accomplishment engendered an historical exemplification of a normatively thickened Hartian rule of recognition. The approaches of Hart and Fuller here are lenses which to make the best sense of this historical case need both to be refocussed and combined.

4. Solon as Lawgiver Contra Lanni and Vermeule: Acceptance and Acknowledgement in Lieu of Formal Ratification

Part 4 returns to the overall question of what made Solon as a lawgiver authoritative, by turning back, to consider afresh the relationship between his justificatory and epistemic functions in shaping the kind of acceptance symbolized in his status as an embodied rule of recognition. I begin by considering the contention—made specifically about Solon—by a team of scholars from Harvard Law School (Adriaan Lanni and Adrian Vermeule). These scholars have asserted that Solon’s laws became authoritative not in the two ways that I have emphasized—through initial authorization, and also over time, through acceptance and acknowledgement as an embodied rule of recognition—but rather (solely) through a process of formal ratification. They advance this claim in an article taking stock of ancient Greek lawgivers more broadly as potential models for contemporary constitutional design, which concludes that ‘at least in some situations, one author is preferable to many’.^[63]

Lanni and Vermeule contend that the ‘legitimacy’ of any such constitution authored by a single ‘founder’ would in principle if adopted in the contemporary world, have to be ‘grounded in popular ratification’.^[64] They contend that the same was true of ancient Greek lawgivers like Solon (their main case, for the same reasons that he is mine, namely the relative wealth of evidence compared to that for other archaic Greek lawgivers): that their proposed laws had to be formally ratified by the community in order to count as laws. Finally, they suggest that ‘it appears that Solon’s proposed constitution underwent a form of popular ratification’^[65] by means of various oaths taken by Athenians, concluding more resoundingly that the ratification performed by such oaths is the answer, for ancient Greek lawgivers more generally, as to ‘how…the lawgiver’s proposed constitution [became] binding on the citizens’.^[66]

By re-examining the Greek vocabulary used in the (varying) accounts of these oaths in the narrative sources about Solon, and reflecting on just what oaths as speech acts can achieve, I shall make the opposite case to that of Lanni and Vermeule. I argue that while the oaths taken by Athenians expressed a view of the justification of the lawgiver’s laws as good, and involved an individual commitment to the laws, they did not constitute any kind of necessary juridical moment of ratification that uniquely made the laws into the laws. Instead, I offer an alternative explanation of how the acceptance and acknowledgement of Solon as a lawgiver served over time to underpin the authoritativeness of his laws in a perspective which connects with elements of both Hart and Fuller. Juridical popular ratification is not the only way to bring about meaningful legal and constitutional legitimacy; the role of popular acceptance within the common law, and also (in a more limited way) within Hart’s positivism, is a meaningful alternative, one which in the case of Solon complemented the initial authorization to make laws with an acceptance that incorporated a justificatory dimension as well, resting on public recognition in his laws of their broadly Fullerian normative purpose.^[67]

Let us consider the question of ratification in the case of the laws of Solon. As Lanni and Vermeule correctly observe, there are three textual sources for these oaths in relation to Solon’s laws (which conflict with each other on some points). But their translations (some common to other translators) of the key verbs in these sources are flawed or suboptimal, as I indicate in Table 2 and explain further in what follows it.

Table 2.

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Lane.

As shown in Table 2, my own interpretation of each of these passages hinges on the meaning of the verbs used, especially, on a verb common to the accounts of Herodotus and the Ath. Pol.: chraō [2], used in the middle voice (thus, chraomai, sometimes transliterated as chráomai to indicate that the accent falls on the ‘a’). This is the verb that Lanni and Vermeule translate as ‘ratify’ (as do some other translators). But the actual sense of the verb that is most plausibly in question is far weaker: weaker even than some natural readings of the alternative translations ‘abide by’ and ‘observe’, which I have therefore also crossed out, though those translations could also be given suitably weak senses compatible with the argument I shall now make.

When used in relation to nomoi in the dative (as here: nomois), the most relevant sense of chraomai in the LSJ Greek-English lexicon is ‘live under laws’,^[74] as part of the broader sense of ‘III. experience, suffer, be subject to, esp. external events or conditions’; in the Grand Bailly French-Greek lexicon, the relevant sense with the dative is ‘III. se servir de, user de’, which again implies acknowledging one’s subjection to already existing conditions (such as already-authorized laws) as opposed to authorially creating a new normative situation.^[75] Indeed, when we look at relevant passages in Herodotus, Xenophon and Euripides, for example, we find that the sense of the verb has nothing to do with ratification or oaths; it is rather simply a description of how a group of people actually live.^[76] And even the prescriptive uses of this verb in inscriptions from the fifth- through the third centuries enjoining the continued use of existing laws by a certain group, rather than enacting any kind of ratification so as to make those laws count as the laws.^[77] Indeed, the point of these inscriptions would be lost were the laws in question not already in effect.^[78] Thus, while perhaps the sense of chraomai in the Constitution of the Athenians (Ath. Pol.) in Table 2 could be well enough captured by the Loeb translation’s ‘observe’, that would be so only on condition that ‘observe’ be understood in the sense of following or living according to the laws, not of formally ratifying or disratifying them.

That said, we should note that the oath mentioned by Herodotus (Table 2) is importantly different from the oaths mentioned in the other two texts. As Elisabetta Poddighe has underscored, the oath in Herodotus is sworn by all Athenians in advance of Solon actually giving the laws. Her emphasis on the Athenians’ agency in establishing ‘agreements’ with Solon in advance, is in my view best interpreted as their part in authorizing him to act as a lawmaker, rather than as any kind of ratification (which by contrast would transpire, if at all, after the laws had been laid down).^[79] By contrast, the oath in the Constitution of the Athenians that involves this verb is taken only afterwards, when the sense I have explicated applies even more aptly (and is supplemented by an additional oath sworn by the nine archons only).

Plutarch for his part (Table 2) uses a different verb, empedoō, to describe a similarly retrospective oath that he avers was sworn by the Council only (and supplemented by an additional oath sworn only by the six thesmothetai, a subset of the nine archons). This verb is connected with the word for foot, and so means something like ‘remain with your feet within’ a certain, potentially metaphorical place:^[80] the implication is that the place already exists and the person in question is remaining within it, not that the person is establishing some new normative boundary. Yet this verb has also been (mis-)translated as ‘ratify’ by Lanni and Vermeule, as also by Bernadotte Perrin:

‘the council took a joint oath to [ratify] uphold^[81] (empedōsein) the laws of Solon, and each of the “thesmothetai,” or guardians of the statutes, swore separately at the herald’s stone in the market-place, vowing that if he transgressed the statutes in any way, he would dedicate at Delphi a golden statue of commensurate worth’.^[82]

‘Ratify’ is the Loeb translation (Perrin) and the one that Lanni and Vermeule also employ. But given the associations of the verb in question as outlined above, as well as the fact that the separate oath taken by each of the thesmothetai is to subject himself to an additional penalty (in case of his future disobedience) that goes further than what the laws actually require, it seems clear that both of these retrospective oaths involve undertakings to uphold the laws (to keep one’s feet within their boundary, as it were) by one’s own actions. This is not, in other words, tantamount to ratification of laws to make them formally binding: to make them count, in fact, as the laws. These retrospective oaths express individual (or joint) commitments to act in regard to the laws in a certain way: indicating a form of popular acceptance, to be sure, and one made on the basis of the justificatory value of their goodness or expected goodness (because made by the wise Solon), but not one taking the shape of procedural ratification.

Thus there is nothing in Greek that supports translations or interpretations of ‘ratifying’ in the relevant passages. Instead, the question is how the people will live, including, where oaths are involved, an oath to live for one’s own part in a certain way, rather than an oath that has a ratificatory effect. The point is about acceptance, as it were, not formal ratification; it is about acknowledgement, as it were, rather than authorial creation. This argument is supported further by the fact that two of the provisions that are classified by the recent editors of Solon’s corpus of laws in the section they term ‘Entrenchment of the laws’ (Fr. 93a and 93b in Leão and Rhodes) are not in fact measures purportedly included in that corpus by Solon himself. Instead, both of these provisions involve the Athenians themselves taking additional action in relation to the laws, such as invoking curses on any of their compatriots who will break them.^[83] Like the oaths of the thesmothetai, these curses add additional sanctions to the laws through their acknowledgement, rather than reflecting ratification of the laws themselves.

Plutarch adds a further description of Solon’s decision to embark on a ten-year period of absence from Athens,^[84] in order to avoid what seems to have been the continuing role that he was playing in virtue of his designation as the city’s lawgiver. That continuing role did not involve executing or enforcing the laws; rather, it is implied to have been a role of modifying the laws (with people coming to him with praise or censure of the laws; requests to insert or delete, and to teach and explain).^[85] Solon’s hope then in embarking on the ten years of absence according to Plutarch, was not because he had extracted a ratification of his laws for that period in advance, but rather simply that ‘In this time he hoped they would become accustomed (sunētheis) to his laws’ (Plut. Sol. 25.4, trans. Lane). Here Plutarch uses an adjective for ‘becoming accustomed’ or ‘becoming habituated’ that can also refer to ‘dwelling together’.^[86] As one might put it, what Solon hoped for, on this account, is that the people would become accustomed to dwelling together in the house of laws that he had built.

This emphasis on the acceptance and acknowledgement of the laws, as part of maintaining the force of their long-term authorization, once again brings versions of the perspectives of Hart and Fuller more closely together than one might expect. For it is the ongoing acceptance of Solon’s laws by the Athenians (all the male citizens being eligible to hold at least the ‘indefinite offices’ of juror and assemblyman) that constitutes the ongoing ‘rule of recognition’ by which the Athenians identified their laws. And in so identifying them, they identified them not only as given, but also as good; in the terms of this article, they treated Solon as a lawgiver as serving not only an epistemic but also a justificatory function. Thus, even Hart’s evolutionary theory of law can be deployed to help make sense of the figure of the archaic Greek lawgiver. Yet in doing so, one must accept and connect the archaic lawgiver’s function of promulgating laws, to the fact that they were expected to serve a normative purpose in doing so: a purpose which in the case of Solon was explicitly designated as social reconciliation, and which can be construed as a special case of Fuller’s view of the normative purpose of law.

While for the Athenians, the fact that Solon’s laws were ‘traceable to [a] valid lawmaking [act] in the past’ remained of great importance, it is also the case that (as Gerald Postema put it in elucidating the early modern common lawyer Sir Matthew Hale), those ‘legislated rules’ had to be ‘appropriated by and become part of normal practice’, on pain of ‘los[ing] their status as valid legal standards through “contrary usage”’.^[87] Postema remarks that this is ‘a shift in the basis of validity from formal to substantive acceptance of the rules’.^[88] I have suggested that the case of Solon resonates with Fuller’s procedural understanding of the morality of law while showing that achieving the law’s basic purpose may require fleshing out that purpose in what looks like more substantive garb (in Solon’s case, by adopting a purpose of social reconciliation). Whether we call this ‘formal’ or ‘procedural’ on the one hand, or ‘substantive’ on the other, the point is that in the case of Solon as the lawgiver of ancient Athens and his acknowledgement as such (and hence the acknowledgement of his laws as the laws of Athens) over time, the usage expressing popular acceptance and acknowledgement thereof, involved a normative as well as merely procedural dimension. It is in this light that it can be illuminated by a combination of Hartian acceptance and Fullerian purposiveness.

Finally, a word about the implications of ancient Greek laws, and the figure of the archaic Greek lawgiver, in relation to questions of jurisprudential reasoning. Must any singular figure laying down laws, in the manner of Solon, give succour to an originalist project? I would rather endorse the view that the Athenians’ way of appealing to the normative purpose of the lawgiver, as was taken up by later Athenian legal reasoning (advanced by the orators in arguing cases before collective bodies of citizens empanelled to decide them), evinces a version of living constitutionalism.^[89] The lawgiver’s purpose or intention continues to govern, but this purpose is not to be reduced to the letter of the laws originally laid down. It is a purpose that must be construed and engaged in explicitly normative terms, in light of the overarching normative purpose that informed both the lawgiver’s authorization to make and promulgate laws and the ongoing disposition of the citizens to accept them.^[90]

1. There is no universally agreed single dividing line between the archaic and classical periods of ancient Greek history; nothing hangs on whether we describe Solon as an archaic or classical Greek lawgiver. ↑

2. Kurt A. Raaflaub, ‘Introduction’, in Kurt A. Raaflaub, Josiah Ober, and Robert Wallace, Origins of Democracy in Ancient Greece (University of California Press 2007) 13, apparently quoting a personal communication from Josiah Ober. Federica Carugati (who had been a student of Ober) describes ancient Athens as providing a ‘laboratory to study the determinants of successful constitution building’: Federica Carugati, Creating a Constitution: Law, Democracy, and Growth in Ancient Athens (Princeton UP 2019) 9. ↑

3. I focus on their respective major works: H. L. A. Hart, The Concept of Law (3rd edn, intro and notes Leslie Green, postscript edited by Penelope A. Bulloch and Joseph Raz, OUP 2012); Lon L. Fuller, The Morality of Law (rev. ed., Yale UP 1969). ↑

4. To be sure, these are traditions which Gerald Postema has shown could be brought into more productive contact than one might think: see Gerald J. Postema, Bentham and the Common Law Tradition (OUP 1986). One might note the full title of the following essay by Jeremy Bentham: ‘Of Promulgation of the Laws, and Promulgation of the Reasons Thereof’, in The Works of Jeremy Bentham, ed. John Bowring, vol. 1 (11 vols, W. Tait 1843) 157-163. ↑

5. I am grateful to one of the anonymous CLP referees for advice on formulating the scope of my case here and at other points in this article. ↑

6. Mirko Canevaro, ‘legislation (nomothesia)’, Oxford Classical Dictionary (2016) <https://doi.org/10.1093/acrefore/9780199381135.013.8020> accessed 6 April 2025 (following this article in not marking long vowels in the Greek). ↑

7. For one way of squaring this circle, see Mogens Herman Hansen, ‘Solonian Democracy in Fourth-Century Athens’ in W.R. Connor et. al., Aspects of Athenian Democracy (Classica et Mediaevalia, Dissertationes, XL; Museum Tusculanum Press, University of Copenhagen, 1990), 71-99, 87: ‘when a fourth-century Athenian author claims that a specific democratic institution was “Solonian”, he probably believed (or at least could expect his audience to believe) that the institution in question was introduced by the historical Solon.’ ↑

8. This paragraph and a few other minor aspects of the present article are partly adapted from Melissa Lane, ‘Ancient Greek Ideas of Justice’ (Gresham College Lecture, 11 January 2024) <https://www.gresham.ac.uk/watch-now/greek-justice> accessed 6 April 2025. ↑

9. In combining the top three property classes established by Solon as members of the ‘“leisured classes”’, and estimating the relative proportions of those combined groups, versus the fourth and lowest Solonian property class, I follow Hans van Wees, ‘Mass and elite in Solon’s Athens: the property classes revisited’, in Josine H. Blok and André P. M. H. Lardinois (eds), Solon of Athens: New Historical and Philological Approaches (Brill 2006), 351-389, 361. ↑

10. Cic. Rosc. Am. (Pro Roscio Amerino) 70 = Fr. 4b in Delfim F. Leão and P. J. Rhodes (eds), The Laws of Solon: A New Edition with Introduction, Translation and Commentary (rev. pbk edn, I. B. Tauris 2016). ↑

11. I emphasized this point, and developed other aspects of the present article, in the ‘Common Legal Problems’ lecture which I was honoured to deliver on 13 February 2025, which itself drew on aspects of my 2024 Isaiah Berlin Lectures in the History of Ideas in the Faculty of Philosophy at the University of Oxford, titled ‘Lycurgus to Moses: Thinking through Lawgivers in Legal and Political Philosophy’ (https://www.philosophy.ox.ac.uk/isaiah-berlin-lectures). This article reflects some of the ways that my ideas have continued to develop during and since delivering those lectures, which are intended for publication in revised form in a monograph in progress, tentatively entitled The Figure of the Lawgiver and Its Legacy (Cambridge University Press). ↑

12. Thanks are due to one of the anonymous referees for this journal for suggesting this formulation, and more generally for other edits that I have gratefully accepted at various points in the article. ↑

13. Aristotle, Pol. 2.12, 1273b30-34; the grammar of the Greek sentence does not exclude the possibility that other lawgivers could be considered to fit within this category as well. ↑

14. Adele C. Scafuro, ‘Identifying Solonian Laws’, in Blok and Lardinois (eds), Solon of Athens 173-96, 175, 179 and passim. See also (supportive of Scafuro’s approach), P. J. Rhodes, ‘The reforms and laws of Solon: an optimistic view’ in Blok and Lardinois (eds) Solon of Athens 248-60. For the corpus of Solonian laws, see Leão and Rhodes (eds) Laws of Solon; for the corpus of Solonian poems, see Douglas E. Gerber (ed. and trans.) Greek Elegiac Poetry: From the Seventh to the Fifth Centuries BC (Harvard UP 2014). ↑

15. This article does not engage with the ideological dimension of the frequent invocation of Solon in fourth-century Athenian intellectual and political debates about the patrios politeia. One relevant discussion of that dimension interprets the fourth-century oratorical invocations of Solon as ‘reactionary’, ‘anti-democratic’, and a manifestation of ‘fourth-century [Athenian] conservatism’: Rosalind Thomas, ‘Law and the Lawgiver in the Athenian Democracy’, in Robin Osborne and Simon Hornblower (eds), Ritual, Finance, Politics: Athenian Democratic Accounts Presented to David Lewis (OUP 1994) 119–33, 124, 126, 128. See also, among others, M. H. Hansen, ‘Solonian Democracy in Fourth-Century Athens’ in W. R. Connor et al. (eds), Aspects of Athenian Democracy (Classica et Mediaevalia Diss. XI, Museum Tusculanum Press 1990); Carol Atack, ‘Politeia and the Past in Xenophon and Isocrates’, Trends in Classics 10 (2018) 171; Athanasios Samaras, ‘Plato’s Laws and The Constitutions of Lycurgus and Solon’, Études platoniciennes (forthcoming). ↑

16. Hart, Concept of Law, 89-91. ↑

17. Hart, Concept of Law, 52-61. ↑

18. Postema, Bentham and the Common Law 4 n.4, cited from J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (CUP 1987) 41. ↑

19. Postema, Bentham and the Common Law 8. ↑

20. Postema, Bentham and the Common Law 15-16. ↑

21. For those who may not recognize Hart’s work in that description, I am following Philip Pettit, The State (OUP 2023) 45, in construing Hart’s discussion, especially in chapters V and VI of the book as providing ‘a genealogy of how laws might plausibly arise’. ↑

22. Michael Gagarin, Early Greek Law (University of California Press 1986) 2, citing the first edition of Hart’s work (1961) at 92, which I believe is a sentence found in the third edition (2012) at 94-95. ↑

23. This is also in tension with Gagarin’s project on a second count: insofar as Gagarin would wish to deny Hart’s implication that writing is simply a tool for promulgating preexisting rules. On Gagarin’s view, there could be no laws (proper) before the advent of writing, a position which Rosalind Thomas has criticized: see inter alia Thomas, Oral Tradition and Written Record in Classical Athens (CUP 1989); Thomas, ‘Written in Stone? Liberty, Equality, Orality and the Codification of Law’, in Lin Foxhall and A. D. E. Lewis (eds), Greek Law in Its Political Setting: Justification Not Justice (OUP 1996) 8-31; Thomas, Literacy and Orality in Ancient Greece (CUP 1992). ↑

24. Gagarin has since softened his view of Hart somewhat. In Gagarin, Writing Greek Law (CUP 2008), he acknowledges that Hart ‘does not claim that recognition necessarily requires writing’ (6), in explaining that his own view of law has developed, drawing on legal anthropology as well as on Hart’s philosophy of law, to encompass ‘law both as conflict resolution and conflict regulation’ (3-4). But he still concludes therein that ‘writing could be said to have created law for the Greeks—law, that is, in the sense of statutes’ (6). ↑

25. I am using ‘higher-order’ for Hart’s term ‘secondary’, and ‘first-order’ for Hart’s term ‘primary’, since the term ‘primary’ can otherwise obscure appreciation of the fact that it is the ‘secondary’ rules which define a legal system as such. Thanks to Janet McLean for suggesting this terminology. ↑

26. Hart, Concept of Law, 95 for both quotations, emphasis original. ↑

27. Hart, Concept of Law, 116-17. ↑

28. Aristotle, Pol. 2.12, 1275a2-7; [Aristotle], Ath. Pol. 7.3, 9.1. ↑

29. On political offices in ancient Greece, see Melissa Lane, Of Rule and Office: Plato’s Ideas of the Political (Princeton UP 2023; rev. pbk edn forthcoming 2025). ↑

30. Plutarch, Sol. 14.1, in Plutarch, Lives, vol. 1: Theseus and Romulus, Lycurgus and Numa, Solon and Publicola (11 vols., tr. Bernadotte Perrin, Harvard UP 1914). Because I have occasionally made my own translations, I note the translator for each passage quoted; the Greek text is taken from the same volume. ↑

31. Plut. Sol. 14.1, trans. Perrin. ↑

32. Here I follow William Allan, ‘Solon and the Rhetoric of Stasis’, Mouseion 15 (2018) 113-129, in preferring the translation of ‘reconciler’, as it better captures the full normative purpose of the role (whereas the common translations of ‘mediator’ and ‘arbitrator’ could imply too limited a purpose of this kind). ↑

33. The Greek quoted here is printed in Aristotle, The Athenian Constitution; the Eudemian Ethics; On Virtues and Vices (tr. H. Rackham, rev. ed. Harvard UP 2014); below, I indicate where I quote from this translation and where I make my own translation. On the disputed question of the authorship of this text (whether it is by Aristotle or simply produced within his circle), I follow P. J. Rhodes, A Commentary on the Aristotelian Athenaiōn Politeia (OUP 1981) 63: ‘On the evidence which we have, Aristotle could have written this work himself, but I do not believe he did’. ↑

34. Note that the verb epitrepō, translated here as ‘entrusted’, can have the specific sense (in entry A.4) of entrusting ‘to a reconciler’: A Greek-English Lexicon, compiled by Henry George Liddell and Robert Scott, revised by Henry Stuart Jones, 9th edn (Clarendon Press 1958) (cited as LSJ below). Reading the clause this way means that it does not add a further role or power, but rather, elaborates on Solon’s designation to act as reconciler. ↑

35. Michael Gagarin, ‘Storytelling about the Lawgiver in the Athenian Orators’, Cahiers des études anciennes (2020) LVII 33, 35. Gagarin avers in this article (33 n.1) that ‘The image of the lawgiver as it is presented in the pleadings of Athenian litigants has, to my knowledge, thus far escaped the attention of scholars’; however, Thomas had already in 1994 published ‘Law and the Lawgiver’ on this very subject. ↑

36. Thomas, ‘Law and the Lawgiver’, 121-22. ↑

37. Solon F 36.18-20 in M. L. West (ed.) Iambi et elegi Graeci ante Alexandrum cantati (Clarendon Press 1971). ↑

38. Aulus Gellius, Noctes Atticae II.12.i = Fr. 93b Leão and Rhodes. ↑

39. A later remark in Justinian’s Institutes (I.II.10), noting that ‘the Athenians kept to laws set out in writing’ (by contrast with the Spartans who ‘tended to prefer laws committed to memory’), likely refers to this later episode: see Justinian’s Institutes, trans. with an introduction by Peter Birks & Grant McLeod with the Latin text of Paul Krueger (Duckworth 1987). ↑

40. Thomas, ‘Law and the Lawgiver’, 122. ↑

41. Gagarin, ‘Storytelling about the Lawgiver’, 35. ↑

42. Gagarin, ‘Storytelling’, 36, referring to Aesch. 3.175. ↑

43. Gagarin, ‘Storytelling’, Dem. 24.106; one should see also Dem. 24.103, 113. ↑

44. Thomas, ‘Law and the Lawgiver’ 123, quoting her translation of the speech. ↑

45. See Victoria Wohl, Law’s Cosmos: juridical discourse in Athenian forensic oratory (CUP 2010) 295-6. ↑

46. Thanks to Ruth Chang for proposing this terminology in conversation. ↑

47. Fuller, Morality of Law 93; see also 94, where he sums up the challenge of balancing the multiple desiderata of good law at any given moment with the observation that this challenge is ‘no less an undertaking than being a lawgiver’. ↑

48. René Descartes, A Discourse on Method (trans. Veitch, Project Gutenberg, eBook #59) <https://www.gutenberg.org/cache/epub/59/pg59-images.html> accessed 6 April 2025. ↑

49. Fuller, Morality of Law, 74. ↑

50. W36.1-2, 17. W here and below = West, Iambi et elegi Graeci, the standard collection that includes and numbers Solon’s poems. Translations of the poems are from Gerber (ed. and trans.) Greek Elegiac Poetry. ↑

51. W36.18-20 (in which the phrase translated ‘for the lower and upper classes’ is more literally ‘for bad and good’: a standard reference at the time to the two broad classes into which Greek societies were divided), trans. Gerber. ↑

52. W37.9-10, trans. Gerber, who adds a note that the word translated ‘no-man’s-land’ is a military metaphor (for the space between two armies poised to fight). ↑

53. W5.1-7 [full fragment], trans. Gerber. ↑

54. ‘Coming to the middle’ is also an ancient Greek expression for engaging in public affairs. ↑

55. Again according to Plutarch, he would do the same late in his life, when he refused to take sides against the rising tyrant Peisistratus, but instead ‘tried to calm him and make him mindful (nouthetein)’ (Sol. 29.2, trans. Lane). Indeed, elsewhere Plutarch suggests that his use of persuasion remained characteristic and distinctive even in his formal roles. ↑

56. See for example Fuller’s reference to ‘an indeterminate area in which the internal and external moralities of law meet’: Fuller, Morality of Law, 79. ↑

57. I build here on the discussion of Solon in Josiah Ober, The Greeks and the Rational: The Discovery of Practical Reason (University of California Press 2022) 168-206. ↑

58. Solon actually used this word in his poetry in its Ionic or Ionian form (eunomiē), but in the secondary literature discussing his work as a lawgiver it is typically Atticized. On its sense as a political ideal and the merits and demerits of various English translations, see ‘Lawfulness: ’Appendix: A Selection of Solonian Poetry’ (tr. D. E. Gerber) in Blok and Lardinois (eds), Solon of Athens 457-460, 458 (tr. of W4). ‘Good order’: Kurt A. Raaflaub, ‘Athenian and Spartan Eunomia, or: What to Do with Solon’s Timocracy?’ in Blok and Lardinois (eds), Solon of Athens 390-428, 392. ‘Law and order’: Edward M. Harris, ‘Solon and the Spirit of the Laws in Archaic and Classical Greece’, in Blok and Lardinois (eds), Solon of Athens 290-318, 299. See also Myrthe L. Bartels, ‘Philosophical Perspectives on Eunomia’, Polis: The Journal for Ancient Greek and Roman Political Thought 38 (2021) 473. ↑

59. Fuller, Morality of Law, 74. ↑

60. In relying heavily on Plutarch in this chart, I do not mean to imply that everything he wrote about Solon was echt– historical; rather, my interest is primarily in how Plutarch and other Greek authors forged the discourse about Solon and his fellow lawgivers, and in this case, in the logic animating the depiction of an approach to law which here bears comparison to Fuller. ↑

61. This summary quotes or closely paraphrases Fuller, Morality of Law, 39. ↑

62. As one of the anonymous CLP referees noted, this sounds very much like fourth-century Athenian rhetoric and might have reached Plutarch through such a source. ↑

63. Adriaan Lanni and Adrian Vermeule, ‘Constitutional Design in the Ancient World’, Stanford LR 64 (2012) 907, 949. In fact, they pair this feature with a second one which they claim also to derive from ancient Greek cases, namely, that ‘at least in some situations…a foreign founder preferable to a representative body’ (949). However, in the body of the article, they focus on the category of ‘outsider founders’, defined as ‘men who were not citizens of the city’, only to implausibly extend this category to include ‘“internal outsiders”’, whom they define as citizens who were ‘not members of either of the competing factions’ of a given city’ (all, 916). Not being a citizen, and not being a faction member, are two radically different political statuses which should not be conflated, especially not to support an overall conclusion in favour ‘in some situations’ of ‘a foreign founder’ (949). ↑

64. Lanni and Vermeule, ‘Constitutional Design’ 911. ↑

65. Lanni and Vermeule, ‘Constitutional Design’ 914. ↑

66. Lanni and Vermeule, ‘Constitutional Design’ 917. At another juncture, they argue more circumspectly that the ancient Greek constitutions proposed by lawgivers were (only) ‘in most cases subject to popular ratification’ (915, emphasis added). ↑

67. While Lanni and Vermeule do not compare Solon or ancient Greek lawgivers more generally to the constitutional executive, but rather to constitutional founders, my argument that Solon’s laws did not require popular ratification should not be taken to mean that they were independent of legal authorization or popular acceptance. This is important to underscore since in work with another co-author, Vermeule has drawn on Carl Schmitt to argue that as the United States Constitution now functions within ‘the modern administrative state’, it has become the case that ‘the executive [i.e. the President] governs, subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis’: Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (OUP 2010) 4. ↑

68. Although I see no evidence for doing so, some scholars describe these oaths in Herodotus as having been exacted by Solon himself. For example, A. H. Sommerstein characterizes this passage in Herodotus as in the following terms: ‘when Solon made the Athenians swear…’: A. H. Sommerstein, ‘Assemblies’, in A. H. Sommerstein and Andrew J. Bayliss, Oath and State in Ancient Greece (De Gruyter 2013) 47-56, 47. Mirko Canevaro offers the same reading of Herodotus and of the other two sources, as saying that ‘he [Solon] bound the Athenians to keep to his laws by making them swear an oath’: Canevaro, ‘legislation (nomothesia)’. By contrast, Elisabetta Poddighe rightly in my view characterizes Herodotus as describing oaths ‘taken by the Athenians [of their own volition, as Poddighe goes on to argue] before Solon laid down his laws’, meaning that ‘The Athenians, in the Herodotean account, accepted that Solon himself could abrogate any law, while they could not, because of their oaths’: see Poddighe, ‘The Athenians’ oaths to use “whatever laws Solon should make” and to change nothing for ten years: should we believe Herodotus’ account?’, in Elisabetta Poddighe and Tiziana Pontillo (eds), Resisting and justifying changes II: Testifying and legitimizing innovation in Indian and Ancient Greek Culture [vol. II] (Pisa UP 2023) 283-330, 283. ↑

69. Lanni and Vermeule, Constitutional Design’, 941, describe this passage as a form of ratification (while they do not cite it specifically, it is the only passage in Plutarch’s Life of Solon to which they could plausibly be referring): ‘Although we know from The Constitution of Athens and Plutarch that Solon’s proposed constitution was subject to popular ratification, Athenians in the classical period uniformly attribute the constitution directly to Solon, without mentioning the ratification process’. In my view, the final two clauses of their sentence undermine its opening clause. ↑

70. Lanni and Vermeule, ‘Constitutional Design’, 917, describe the Council’s action in this passage as a form of ratification, insofar as this is the only passage to which the following claim can be referring, namely, that ‘Plutarch states that the Council took a collective oath to ratify the laws…’. ↑

71. Although I see no evidence for doing so, some scholars describe these oaths in Herodotus as having been exacted by Solon himself. For example, A. H. Sommerstein characterizes this passage in Herodotus as in the following terms: ‘when Solon made the Athenians swear…’: A. H. Sommerstein, ‘Assemblies’, in A. H. Sommerstein and Andrew J. Bayliss, Oath and State in Ancient Greece (De Gruyter 2013) 47-56, 47. Mirko Canevaro offers the same reading of Herodotus and of the other two sources, as saying that ‘he [Solon] bound the Athenians to keep to his laws by making them swear an oath’: Canevaro, ‘legislation (nomothesia)’. By contrast, Elisabetta Poddighe rightly in my view characterizes Herodotus as describing oaths ‘taken by the Athenians [of their own volition, as Poddighe goes on to argue] before Solon laid down his laws’, meaning that ‘The Athenians, in the Herodotean account, accepted that Solon himself could abrogate any law, while they could not, because of their oaths’: see Poddighe, ‘The Athenians’ oaths to use “whatever laws Solon should make” and to change nothing for ten years: should we believe Herodotus’ account?’, in Elisabetta Poddighe and Tiziana Pontillo (eds), Resisting and justifying changes II: Testifying and legitimizing innovation in Indian and Ancient Greek Culture [vol. II] (Pisa UP 2023) 283-330, 283. ↑

72. Lanni and Vermeule, Constitutional Design’, 941, describe this passage as a form of ratification (while they do not cite it specifically, it is the only passage in Plutarch’s Life of Solon to which they could plausibly be referring): ‘Although we know from The Constitution of Athens and Plutarch that Solon’s proposed constitution was subject to popular ratification, Athenians in the classical period uniformly attribute the constitution directly to Solon, without mentioning the ratification process’. In my view, the final two clauses of their sentence undermine its opening clause. ↑

73. Lanni and Vermeule, ‘Constitutional Design’, 917, describe the Council’s action in this passage as a form of ratification, insofar as this is the only passage to which the following claim can be referring, namely, that ‘Plutarch states that the Council took a collective oath to ratify the laws…’. ↑

74. Or, contrastingly, under the absence of laws (anomia), in Xenophon, Mem. 1.2.24. ↑

75. A. Bailly, with E. Egger, Le Grand Bailly: dictionnaire grec français, rev. edn by L. Séchan and P. Chantraine, 4th ed. (Paris: Hachette, 2000), ad loc. Thanks to Nardana Kaur for calling my attention to the utility of this work on the relevant verbs, and to Paul Jackson and the Institute for Classical Studies Library for obtaining it so that I could consult it. ↑

76. Hdt. 1.173.4 on the Lycians, 1.216.1 on the Massagetae, both with nomoisi as the dative; Xen. Mem. 1.2.24, on a group in Thessaly living according to anomia as opposed to justice (both in the dative); Eur. IA 543, living according to calmness (in the dative). ↑

77. The fifth-century inscription mentioned in LSJ, namely IG IX 1², 3:718 line 19, prescribes how a group of colonists from Eastern Locri should act; the third-century inscription also mentioned there (IC IV 184) prescribes how those party to a treaty between Gortyn and Gaudos should act according to their own laws (in the dative: nomois tois idiois). Thanks to Joanna Ashe, Librarian of the Institute for Classical Studies, for research assistance with these inscriptions. ↑

78. This absence of any ratificatory sense or use (in the selected examples) is reinforced by the fact that the newer Cambridge Greek Lexicon does not specify any uses in relation to laws at all, giving as the most relevant sense to our passages (sense 4) of chráomai the following: ‘(of a people) make habitual use of, use, have—w. dat. certain foods, clothing, customs, or sim.’: see James Diggle (ed.), The Cambridge Greek Lexicon (2 vols, CUP 2021). The entry ends by noting the use of this verb in Herodotus and Aristotle (without further details, as is standard for its concluding references). ↑

79. Poddighe, ‘The Athenians’ Oaths’, especially as summed up on 321; Poddighe persuasively refutes numerous arguments against taking Herodotus’ account seriously, including preeminently Vincent J. Rosivach, ‘The Oaths of the Athenians at the Ratification of Solon’s Reforms’, Phoenix [Toronto] 64 (2019) 223. ↑

80. Thanks to one of the anonymous CLP referees for this point. See similarly the entry for empedoō in the Grand Bailly, calling attention to a literal sense of ‘fixer dans le sol’ (related to the idea of planting one’s feet), from which derive the senses of ‘fixer solidement, affermir, confirmer, sanctionner (un serment, une promesse, etc.)’: this again points the verb in the direction of a relationship to something already established rather than to something newly to be brought about. ↑

81. This is the translation I would endorse, building on the fact that LSJ so glosses the sense of the verb in this very passage. ↑

82. Plut. Sol. 25.2, trans. Perrin with modifications by Lane. Further comments by Lanni and Vermeule, ‘Constitutional Design’, in a similar vein, include this summing up of their overviews of the cases of Lycurgus, Solon and Zaleucus: ‘The processes of ratification and entrenchment transform the outside lawgiver’s proposed laws into a binding constitution for the city-state’ (918). ↑

83. Dio Chrysostom of Prusa (80.6) = Fr. 93a Leão and Rhodes, says that it was ‘the Athenians’ who had ‘laid down (ethento…)’ such a curse ‘in the laws of Solon’; this is noted (with an incorrect citation to the orator) by Giorgio Agamben, The Sacrament of Language: An Archaeology of the Oath (Homo Sacer II, 3) (tr. Adam Kotsko, Stanford UP 2011) 37. By contrast, Draco did entrench his own laws in their very formulation. ↑

84. This article does not seek to discuss the differences between Plutarch’s mention of ten years here; his mention of one hundred years elsewhere in the Life of Solon (25.1); and the Constitution of the Athenians’ mention (7.2) of a hundred years. ↑

85. Plut. Sol. 25.4; similarly, Ath. Pol. 11.1 ↑

86. According to Le Grand Bailly, senses include ‘accoutumer’ and ’habituer’. ↑

87. Postema, Bentham and the Common Law, 23, quoting Hale in the double inverted commas. Postema, Bentham and the Common Law, 22, explains Hale to be making the case that, while ‘continuity of law’ can be explained by what is in effect the work of rules of recognition (Postema here invoking Hart’s terminology in the plural): ‘the whole issue of origins of laws, including their being traceable to valid lawmaking acts in the past, is irrelevant to the question of validity. What is crucial is the present usage, acceptance, and practice of the rules’. ↑

88. Postema, Bentham and the Common Law, 22. ↑

89. Here I would like to acknowledge the version of this argument advanced by Luke Martin, ‘All For One, One For All: A Dworkinian Theory of Athenian Legal Practice’, an undergraduate dissertation submitted to the Department of Philosophy, Princeton University, in 2024, which I was privileged to advise. ↑

90. I am most grateful to Lady Rose, Justice of the UK Supreme Court, for raising the question of originalism in the course of graciously chairing the CLP Lecture which I delivered on 13 February 2025, and to all participants in that forum and others in which I have presented related work, as well as to the Institute for Classical Studies for providing me as a Visiting Fellow with an unparalleled library in which to work during the months in which the lecture was presented and revised for publication (with special thanks to Joanna Ashe, Katherine Harloe, Paul Jackson, Sue Willetts and all the ICS staff). Conversations or written comments especially helpful in formulating this lecture were also provided (in some cases much prior to its written form) by Lucas Barron, Annabel Brett, Lesley Brown, Daniel Browning, Ruth Chang, Giuseppe Cumella, David Dyzenhaus, David Enoch, Antony Hatzistavrou, Zena Hitz, Bill Irwin, Terence Irwin, Nardana Kaur, Avi Lifschitz, Luke Martin, Veronica Rodriguez-Blanco, Prince Saprai (to whom further thanks for having proposed my inclusion in this series), Rosalind Thomas and Jocelyn Wilson, as well as the two extremely thoughtful and thorough anonymous CLP referees. I would like finally to thank Christina Giannakopoulou for the excellent organization of the lecture, and Mark Dsouza for honouring me with this invitation and for overseeing the editorial process so well. ↑