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NOMOTHESIA IN CLASSICAL ATHENS: WHAT SOURCES SHOULD WE BELIEVE?

Published online by Cambridge University Press:  24 April 2013

Mirko Canevaro
Affiliation:
The University of Edinburgh
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Extract

In the fifth century b.c.e. the Athenians did not make any distinction between laws (nomoi) and decrees (psêphismata). The Assembly passed both kinds of measures in the same way, and both general enactments and short-term provisions held the same legal status. At the end of the fifth century, however, the Athenians decided to make a distinction between the two kinds of measures and created the rule that no decree would be superior to a law (Andoc. 1.86; Dem. 23.86, 218; 24.18, 59, 116, 188; 46.2). The Assembly continued to pass decrees in the same way, but a new body of nomothetai was created to ratify laws (nomoi). There were also two separate procedures for rescinding the two kinds of measures: one could bring a graphê paranomôn (a public action against an illegal decree) against a psêphisma and a graphê ‘nomon mê epitêdeion theinai’ (a public action against an inexpedient law) against a nomos. This much is clear; scholars do not agree however about the procedure for passing a new law (nomothesia) in fourth-century Athens.

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Research Article
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Copyright © The Classical Association 2013

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References

1 For the difference between laws and decrees in the fourth century see Hansen, M.H., ‘Nomos and psephisma in fourth-century Athens’, GRBS 19 (1978), 315–30Google Scholar; id., ‘Did the Athenian Ecclesia legislate after 403/2 b.c.?’, GRBS 20 (1979), 2753Google Scholar. See also id., The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology (Oxford, 1991), 161–77Google Scholar, 256–7; Rhodes, P.J., ‘Nomothesia in Classical Athens’, in L'educazione giuridica 5/2 (1987), 526Google Scholar; Sealey, R., The Athenian Republic: Democracy or the Rule of Law? (Philadelphia and London, 1987), 41–5Google Scholar. Note however that the documents quoted at Andoc. 1.87 (cf. Canevaro, M. and Harris, E.M., ‘The documents in Andocides’ On the Mysteries’, CQ 62 [2012], 98129CrossRefGoogle Scholar) and Dem. 24.59 are forgeries.

2 What is not clear is the relationship between this passage and the ad hoc commissioners elected by the people to remove contradictory laws mentioned in Dem. 20.91. MacDowell, D.M., ‘Law-making at Athens in the fourth century b.c.’, JHS 95 (1975), 6274CrossRefGoogle Scholar, at 72 and Rhodes, P.J., ‘Nomothesia in fourth-century Athens’, CQ 35 (1984), 5560CrossRefGoogle Scholar, at 60 think that the thesmothetai at some point were put in charge of the procedure instead of the commissioners. Hansen, M.H., ‘Athenian nomothesia’, GRBS 26 (1985), 345–71Google Scholar, at 356 thinks that thesmothetai and commissioners worked together.

3 In chronological order SEG 26.72; Stroud, R.S., The Athenian Grain-Tax Law of 374/3 b.c. Hesperia Supplement 29 (Princeton, 1998)Google Scholar; Agora Excavations, inv. no. I 7495 (unpublished); IG II2 140; IG II2 244; SEG 12.87; IG II2 334 + SEG 18.13; IG II2 333; SEG 35.83. Cf. also the regulations for the Mysteries at Eleusis in a fourth-century inscription (Clinton, K., Eleusis: The Inscriptions on Stone. Documents of the Sanctuary of the Two Goddesses and Public Documents of the Deme. Vol. IA: Text [Athens, 2005]Google Scholar, no. 138 and Vol. II: Commentary [Athens, 2008], at 116).

4 δɛδόχθαι τοῖς νομοθέταις is found in Agora Inv. 7495 (unpublished, see Alessandrì, S., ‘Alcune osservazioni sui segretari ateniesi nel IV sec. a.C.’, AnnPisa 12 [1982], 770Google Scholar, at 7–11), IG II2 140, IG II2 244, SEG 12.87, SEG 35.83, IG II2 334 + SEG 18.13. SEG 26.72 has ἔδοξɛ τοῖς νομοθέταις.

5 The only exception is Stroud (n. 3), which mentions neither the nomothetai nor the Assembly nor the Council. Also, in IG II2 333 νομο[θɛτῶν ἕδρα] has been restored by Foucart, but Lambert, S., ‘Athenian state laws and decrees, 352/1–322/1: II. Religious regulations’, ZPE 154 (2005), 125–59Google Scholar, at 140 restores νόμο[ς πɛρὶ τῆς ἐξɛτάσɛως τῶν, which is likely to be correct.

6 Cf. Rhodes, P.J., The Athenian Boule (Oxford, 1972), 82–7Google Scholar, 271–5.

7 Cf. MacDowell (n. 2), 63. Pace Atkinson, K.M.T., ‘Athenian legislative procedure and revision of laws’, Bulletin of the John Rylands Library 23 (1939), 107150CrossRefGoogle Scholar, at 113.

8 IG II2 333 is enacted on Skirophorion 8, SEG 12.87 in the ninth prytany, IG II2 140 in the fifth, the seventh or the tenth prytany.

9 IG II2 222, IG II2 330 and IG VII 4254.

10 Cf. Dion. Hal. Amm. 1.4. The reliability of Dionysius’ dates is not beyond suspicion and there has been some debate about the exact dates of these two trials. Cf. Sealey, R., ‘Dionysius of Halicarnassus and some Demosthenic dates’, REG 68 (1955), 77120CrossRefGoogle Scholar; Cawkwell, G., ‘Notes on the Social War’, C&M 23 (1962), 3440Google Scholar: they accept Dionysius’ dates. Lewis, D.M., ‘Notes on Attic inscriptions (XIII)’, BSA 49 (1954), 1750Google Scholar at 32, 43–7 and Selected Papers in Greek and Near Eastern History, ed. Rhodes, P.J. (Cambridge, 1997), 230–51Google Scholar (and Fox, R. Lane, ‘Demosthenes, Dionysius and the dating of six early speeches’, C&M 48 [1997], 167203Google Scholar, who does not however analyse the dates of these speeches) are more sceptical about Dionysius’ reliability. Exact dating is not however necessary here, and the internal evidence of the speeches confirms that Dionysius’ dates are approximately right.

11 MacDowell (n. 2).

12 Cf. Rhodes (n. 2), 56.

13 Rhodes, P.J., ‘Athenian democracy after 403 b.c.’, CJ 75 (1980), 305–23Google Scholar, at 305–6.

14 Hansen, M.H., ‘Athenian nomothesia in the fourth century bc and Demosthenes’ speech against Leptines’, C&M 32 (1979–80), 87104Google Scholar and id. (n. 2).

15 Even though the statute could be interpreted as allowing enacting new laws to replace old ones, one cannot deny that the wording of the document at Dem. 24.33 makes clear that the topic is repealing old laws. See below pp. 156–8.

16 Cf. Westermann, A., Untersuchungen über die in die attischen Redner eingelegten Urkunden. Abhandlungen der Sächsischen Gesellschaft der Wissenschaften. Phil. Hist. Klasse (Leipzig, 1850)Google Scholar; Benseler, G.E., Demosthenes. Reden gegen Androtion und Timocrates (Leipzig, 1861)Google Scholar; Wayte, W., Demosthenes. Against Androtion and Against Timocrates (Cambridge, 1882)Google Scholar, passim.

17 Burger, F., Stichometrische Untersuchungen zu Demosthenes und Herodot: ein Beitrag zur Kenntnis des antiken Buchwesens (Munich, 1892), 14Google Scholar.

18 Schöll, R., ‘Ueber attische Gesetzgebung’, SBAW (1886), 83139Google Scholar; Drerup, E., ‘Über die bei den attischen Rednern eingelegten Urkunden’, Jahrbücher für classische Philologie. Supplementband 24.2 (1898), 221366Google Scholar, at 248–63.

19 The reconstructions found in MacDowell (n. 2), Rhodes (n. 2) and Hansen (n. 14 and n. 2) have really nothing to do with Drerup's and Schöll's attempts to understand Athenian nomothesia.

20 For a full discussion of my methodology for assessing the authenticity of such documents see Canevaro, M., ‘The decree awarding citizenship to the Plataeans ([Dem.] 59.104)’, GRBS 50 (2010), 337–69Google Scholar; Canevaro and Harris (n. 1), 98–100.

21 I accept the Demosthenic authorship of the speech and I refer to Demosthenes as the author, although I am aware that Diodorus pronounced it in court. Cf. Dem. 24.6–16 with MacDowell, D.M., Demosthenes the Orator (Oxford, 2009), 181–5CrossRefGoogle Scholar.

22 The document inserted at that point is not authentic. Cf. Canevaro and Harris (n. 1), 117–19.

23 Cf. Staveley, E.S., Greek and Roman Voting and Elections (London, 1972), 84–5; MacDowell (n. 2), 70Google Scholar; Hansen, M.H., ‘How did the Athenian ecclesia vote?’, GRBS 18 (1977), 123–37Google Scholar, at 124; id. (n. 14), 93–4; Rhodes, P.J., ‘Sessions of nomothetai in fourth-century Athens’, CQ 53 (2003), 124–9CrossRefGoogle Scholar, at 126–7.

24 Cf. Rhodes, P.J., A Commentary on the Aristotelian Athenaion Politeia (Oxford, 1981), 452Google Scholar, pace LSJ s.v. ἐπιχɛιροτονέω 2.

25 The stichometry of the manuscript does not allow one to decide whether the document was part of the Urexemplar or not. See Burger (n. 17), 14.

26 Davies, G.A., Demosthenes: Philippics I, II, III with Introduction and Notes (Cambridge, 1949)Google Scholar, ad loc.

27 Rhodes (n. 24), 452 singles out here a specific meaning ‘vote in approval of’. Fritz, K. von and Kapp, E., Aristotle's Constitution of Athens and Related Texts, The Hafner Library of Classics, 13 (New York, 1950)Google Scholar, 183 stick to the more generic meaning ‘put the matter to vote’. I believe with Rhodes that the context makes clear that the two laws had to be approved; yet I do not think that we need to postulate a further technical meaning here. The passage simply says that the Thirty ordered the Council to put a vote on the two laws. That the outcome of the vote could not be anything other than approval is implied.

28 Rhodes (n. 24), 452, 523, 619, 682, 686.

29 The verb (or the connected substantive) appears thrice in Athenian inscriptions: in IG II2 24, SEG 21.528 and 41.51.

30 Cf. Hansen (n. 23), 124; id. (n. 14), 94 n. 5; id. (n. 2), 365–8; Rhodes (n. 24), 126–7.

31 This decree has been recently shown to be a forgery by M. Piérart, ‘Qui étaient les nomothètes à l’époque de Démosthène?’, in Levy, E. (ed.), La Codification des lois dans l'antiquité (Paris, 2000), 229–56Google Scholar, at 245–50. Rhodes (n. 23), 125 n. 8 accepts Piérart's account.

32 I translate here κɛλɛύɛι with ‘authorizes’ since the verb in similar contexts does not mean ‘orders’ but simply ‘provides for it’. Athens did not know compulsory prosecution for any crime. Cf. Dem. 29.9 with MacDowell, D.M., ‘The authenticity of Demosthenes 29 (Against Aphobos III) as a source of information about Athenian law’, in Symposion 1985, ed. Thür, G. (Cologne, 1989), 253–73Google Scholar, at 257–72 and MacDowell (n. 21), 46–7. See also Harris, E.M., Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics (Cambridge, 2006)CrossRefGoogle Scholar, 131 for another example.

33 Hansen (n. 2), 359.

34 See on the judicial oath Harris, E.M., ‘The rule of law in Athenian democracy. Reflections on the judicial oath’, Dike 8 (2008), 157–81Google Scholar.

35 Pace Hansen (n. 2), 348.

36 Cf. Rubinstein, L., Litigation and Cooperation: Supporting Speakers in the Courts of Classical Athens. Historia Einzelschriften 147 (Stuttgart, 2000)Google Scholar, 44.

37 I do not discuss here the legal context of the Against Leptines, to which I plan to come back in a further essay. For various interpretations of what happened in that case see Wolff, H.J., ‘Normenkontrolle’ und Gesetzesbegriff in der athenischen Demokratie. Untersuchungen zur graphe paranomon, Sitzungsberichte der Heidelberger Akademie der Wissenschaften, Phil. Hist. Klasse 1969 (Heidelberg, 1970), 35–7Google Scholar; Limentani, I. Calabi, ‘Demosthene XX, 137: A proposito della graphe nomon me epitedeion theinai’, Studi Biscardi 1 (1982), 357–68Google Scholar. Hansen (n. 14), 95–9 and (n. 2), 368–71 believes that the four sundikoi were elected with the sunêgoroi in mind. The sunêgoroi are identified with the sundikoi also by Schöll (n. 18), 109 and Wotke RE Suppl. 8.579. Pace Atkinson (n. 7), 110 and MacDowell (n. 2), 67.

38 He therefore athetized the final clause of the document at §§ 20–3 which set their election at the same time as the preliminary vote, since electing experts before the proposals were published would have been nonsense; see Schöll (n. 18), 108. Cf. also Atkinson (n. 7), 113. MacDowell (n. 2), 67 reports Schöll's opinion, but points out that in that first Assembly the people voted on the sections of the ‘code’ of laws, and therefore sunêgoroi could be appointed that were experts on the particular section to revise. We have seen that there is no reason to believe that an annual approval of the ‘code’ of laws ever existed.

39 For the political context of this speech see Canevaro, M., ‘L'accusa contro Leptine: crisi economica e consensus post-bellico’, Quaderni del Dipartimento di Filologia, linguistica e tradizione classica A. Rostagni, ns 8 (2009), 117–41Google Scholar.

40 I do not discuss here the identity of the nomothetai. This, together with the procedure for repealing contradictory laws described in Demosthenes’ speech Against Leptines and Aeschines’ speech Against Ctesiphon (3.38–40) will be the subject of a further essay.

41 If, following Heath, M., Menander: A Rhetor in Context (Oxford, 2004), 132–83CrossRefGoogle Scholar, we attribute many of these scholia to Menander, then we can at least keep the late 3rd century a.d. as a terminus ante quem.

42 This translation is adapted from Arnaoutoglou, I., Ancient Greek Laws: A Sourcebook (London, 1998), 88–9Google Scholar.

43 This expression is found in the document later at § 21. It was widespread in the Greek world. A search in the PHI database yields 34 occurrences in Athenian inscriptions (e.g. IG II2 107.16; 185.8; 212.57; 238 fr. bc1.13–4), but 345 from the Aegean Islands and Crete, and 69 from Asia Minor. τὰ ἱɛρά refers to the sacrifices, cf. Harris (n. 32), 91–2.

44 Cf. e.g. IG II2 28.14, 22–3; 211.5–6; 244.28 for the people, 244.10 for the Council.

45 Cf. for the fifth and fourth century Aeschin. 3.39; Dem. 24.50, 24.25, 22.9; and Ath. Pol. 43.5, 55.4. They confirm that the correct verb is δίδωμι. The only exception seems to be Dem. 21.6, where we find καταχɛιροτονίαν ὁ δῆμος ἐποιήσατο. However καταχɛιροτονία in this case does not mean simply a vote, it means a vote of censure in a probolê, even though without legal effects; see Harris, E.M., Demosthenes. Speeches 20–22 (Austin, TX, 2008), 79Google Scholar. The expression therefore does not mean, as in all the other cases, ‘to put a matter to the vote’, but to ‘condemn’. ποιɛῖν with χɛιροτονία becomes common in later times. Cf. e.g. Plut. Nic. 12.5; Paus. Att. Att. On. 1.9; Didymus Caecus, Comm. 2.256; Lib. Orat. 15.5; Socr. Schol. Hist. 2.24, 6.14, etc.

46 Cf. Schöll (n. 18), 85–95; Kahrstedt, U., ‘Die Nomotheten und die Legislative in Athen’, Klio 31 (1938), 125, at 11Google Scholar; Ruschenbusch, E., Solonos nomoi: die Fragmente des solonischen Gesetzeswerkes mit einer Text und Überlieferungsgeschichte (Wiesbaden, 1966), 2731Google Scholar; MacDowell (n. 2), 67; Rhodes (n. 24), 33–9; Sickinger, J.P., Public Records and Archives in Classical Athens (Chapel Hill and London, 1999), 149–50Google Scholar.

47 Cf. the essays cited in the note above and in particular Rhodes (n. 24), 33–4. Such a correspondence is not beyond doubt. For the arrangement of the second part of the Ath. Pol. see also Hansen, M.H., The Sovereignty of the People's Court in the Fourth Century b.c. and the Public Action against Unconstitutional Proposals (Odense, 1974), 1012Google Scholar and Harris (n. 32), 30–2.

48 Schöll (n. 18), 86, in order to save the provision, has athetized πɛρί.

49 This was already noted by Westermann (n. 16), 14.

50 Harris, E.M., ‘What are the laws of Athens about? Substance and procedure in Athenian statutes’, Dike 12/13 (2009/10), 567Google Scholar provides more examples and shows that Athenian laws were organized not by procedure but by substantive content.

51 The same remarks have been made by Westermann (n. 16), 19 and Schöll (n. 18), 99–100.

52 Hansen, M.H. and Mitchel, F., ‘The number of ecclesiai in fourth-century Athens’, SO 59 (1984), 1319CrossRefGoogle Scholar.

53 Schöll (n. 18), 101.

54 Harris, E. M., ‘When Did the Athenian Assembly Meet? Some New Evidence’, AJPh 112 (1991), 325–41Google Scholar. Hansen, M. H., ‘How often did the Athenian Assembly meet? A reply’, GRBS 28 (1987), 3550Google Scholar claims that the information applies only to the period of the twelve tribes but see Harris (n. 32), 118–120.

55 IG II2 229.4–5. Cf. Henry, A., The Prescripts of Athenian Decrees (= Mnemosyne Suppl. 44) (Leiden, 1977), 37Google Scholar.

56 Harris (n. 32), 104 n. 5; Hansen, M.H., ‘Was the Athenian ekklesia convened according to the festival calendar or the Bouleutic calendar?’, AJPh 114 (1993), 99113Google Scholar, at 101–2.

57 Cf. above, pp. 144–7.

58 σύνδικος is found in inscriptions up to the end of the fourth century in SEG 3.117.7; 42.217.8–9; GRBS 26:165.49.5; 51.17. συνήγορος is found in IG II2 1183.14; 1237.32; 1251.10–1; III App. 38.6–7; E. Ziebarth, Neue Verfluchungstafeln, SPAW 1 (1934), 2.2; SEG 44.226.6, 10; 28.103.41–2. For differences between the two terms, and the overlap in their application see Rubinstein (n. 36), 43–5.

59 Participles of συναπολογέομαι are found in fourth-century prose only at Dem. 25.56; Hyp. 1.10; Lycurg. 138. They are never employed as technical terms but simply mean ‘one who joins in mounting one's defence’. It is also interesting that the verb is found in the Demosthenic corpus only in two other places: Dem. 24.157, 159, both in the same speech where we find the document.

60 Cf. Burger (n. 17), 14.

61 This translation is adapted from Arnaoutoglou (n. 42), 89–91.

62 The forger might have been misled by Dem. 3.10. This passage mentions the possibility of appointing nomothetai for the sole purpose of repealing laws, but his language makes it clear that their normal function was to ratify laws and that his own proposal would have been an innovation.

63 See Dio Chrys. 31.128 with Harris (n. 45), 20–1.

64 The orator addresses the audience with the words ἄνδρɛς δικασταί at Dem. 20.1, 15, 29, 36, 45, 55, 64, 67, 69, 79, 87, 95; 24.1, 19, 24, 43, 51, 64, 72, 111, 113, 121, 122, 123, 124, 125, 130, 134, 136, 139, 140, 142, 143, 144, 145, 146, 147, 151, 152, 153, 154, 167, 200, 212. Hansen (n. 2), 350 postulates that during the first year after its enactment a law was not fully in force, but had an intermediate status, and could be repealed in a tribunal. After one year it became one τῶν δὲ νόμων τῶν κɛιμένων, a part of the ‘code’, and could be repealed only by the nomothetai. This seems to me to explain ignotum per ignotius. This intermediate status is clearly excluded by the law of Diocles, quoted and discussed at Dem. 24.42–4, which states that τοὺς νόμους … τοὺς δὲ μɛτ᾽ Εὐκλɛίδην τɛθέντας καὶ τὸ λοιπὸν τιθɛμένους κυρίους ɛἶναι ἀπὸ τῆς ἡμέρας ἧς ἕκαστος ἐτέθη. This document there inserted was, according to the stichometry, part of the Urexemplar, and Hansen, M.H., ‘Diokles’ law (Dem. XVI 42) and the revision of the Athenian corpus of laws in the archonship of Eukleides’, C&M 41 (1990), 6371Google Scholar accepts it as an authentic statute.

65 Cf. Dem. 29.9 with MacDowell (n. 32), 257–72 and id. (n. 21), 46–7. Demosthenes obviously does not mean that the law ‘orders’ the prosecution of the law's proposer.

66 Cf. Canevaro and Harris (n. 1), 110–13, 116–19.

67 Cf. Sickinger, J., ‘Indeterminacy in Greek law: statutory gaps and conflicts’, in Harris, E. and Thür, G. (edd.), Symposion 2007: Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Vienna, 2008), 99112Google Scholar.

68 Harrison, A.R.W., ‘Law-making at Athens at the end of the fifth century b.c.’, JHS 75 (1955), 2635CrossRefGoogle Scholar argued extensively for this date, and has generally been endorsed. See e.g. MacDowell (n. 2), 62; Rhodes (n. 1), 12–16; and Gagarin, M., Writing Greek Law (Cambridge, 2008), 185–8CrossRefGoogle Scholar.

69 For a discussion of the arguments from the intent of the lawgiver see Harris, E.M., ‘Did the Athenian courts attempt to achieve consistency? Oral tradition and written records in the Athenian administration of justice’, in Cooper, C. (ed.), Politics of Orality (Leiden, 2007), 343–70Google Scholar, at 365–7.

70 Cf. above, p. 139 n. 2.

71 Cf. Sickinger (n. 67), 107 about this aspect of the law of Nicophon. Pace Lanni, A., Law and Justice in the Courts of Classical Athens (Cambridge and New York, 2006), 115–48CrossRefGoogle Scholar: Lanni's contention that the Athenians showed little regard for consistency in their legal system is untenable.

72 Cf. for this attitude in the orators Harris (n. 69).

73 I started working on Athenian nomothesia in 2005, while writing my BA thesis about Demosthenes’ Against Timocrates. The riddle of reconstructing this procedure has troubled me ever since. I want to thank Lucio Bertelli for introducing me to this topic, the journal's referee for many valuable suggestions (among them, the title of this article), P.J. Rhodes for reading and commenting on various drafts of this article and for his support. Most of all, I want to thank Edward Harris: this article has benefited from months of fruitful discussion with him, through endless emails and long conversations. He has provided me with invaluable suggestions, and helped me at every stage. Finally, I want to thank Durham University, the AHRC, the British School at Athens, the Universität Mannheim and the Alexander von Humboldt Foundation for supporting the work for this article at various stages.

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