Abstract

This paper argues that an exchange between Paolo Prodi and Giorgio Agamben on the role of the sacred in European constitutional history can inform the study of early modern history of political thought. Prodi, in his history of the sworn oath (sacramentum), and Agamben, in his history of the curse (sacer esto) and the accursed, or outlaw (homo sacer), explored how these sacred threats and promises, though not purely legal expressions themselves, underpinned the legal order. Through a study of three sixteenth-century legal humanists’ views of the Roman laws concerning these sacred oaths and curses (the sacratae leges), this paper describes a similar interest in exploring the connection between the sacred and the legal order. It concludes that the idea of the commonwealth in the sixteenth century was a complex of legal and para-legal techniques, symbols, and structures in addition to the more frequently studied restoration of classical virtue theory. This paper also provides an edition and translation of Guillaume Budé's discussion of the Roman law of banishment [D. 48.19.2], which was the first legal commentary to assemble the materials relating to the homo sacer.