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Law-making at Athens in the fourth century B.C.

Published online by Cambridge University Press:  23 December 2013

Douglas M. MacDowell
Douglas M. MacDowell
Affiliation:
University of Glasgow
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Extract

It is now twenty years since A. R. W. Harrison remarked in this Journal ‘For students of Athenian private and public law it is a painful, but undeniable fact that there is still grave uncertainty as to the precise methods by which statutes, one of the most important sources of law, were made at the most formative period of the history of the system from the middle of the fifth century B.C. onwards.’ His own article is entitled ‘Law-making at Athens at the end of the fifth century B.C.’ and is concerned primarily with establishing that an important change was made in or soon after the year 403/2. That was the date at which a new procedure for making laws (nomoi) was introduced, which Harrison calls ‘the fourth-century procedure of nomothesia’, involving officials called νομοθέται. Before then there was no procedural difference between making a nomos and making a psephisma. References to nomothetai in texts before 403 are irrelevant. In 403 the decree of Teisamenos laid down a procedure for review and amendment of laws, involving two distinct bodies of nomothetai; but that was a procedure for one particular occasion. The regular procedure was instituted shortly afterwards, and was to some extent modelled on the procedure of the Teisamenos decree.

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 95 , November 1975 , pp. 62 - 74
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1975

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References

1 JHS lxxv (1955) 26.

2 Th. viii 97.2 refers to an occasion when the democratic constitution was not in force. In IG i2 63 (Meiggs and Lewis no. 69) line 16 the restoration is dubious.

3 And. 1.83–4; for a view of this decree cf. MacDowell, Andokides: On the Mysteries (1962) 194–9.

4 F. Quass, Nomos und Psephisma (1971) 68–72; P. J. Rhodes, The Athenian Boule (1972) 50–2; R. A. de Laix, Probouleusis at Athens (1973) 52–68.

5 For the sake of brevity I assume here that Demosthenes is the author of Against Timokrates. How much of the composition was actually due to Demosthenes and how much to Diodoros is a question which does not affect the problems discussed in this article.

6 R. Schöll, ‘Über attische Gesetzgebung’ (Sitzungsberichte der Akademie der Wissenschaften zu München [1886] 83–139); H. Francotte, Mélanges de droit public grec (1910) 5–7; U. Kahrstedt, ‘Untersuchungen zu athenischen Behörden, II: Die Nomotheten und die Legislative in Athen’ (Klio xxxi [1938] 1–32); K. M. T. Atkinson, ‘Athenian legislative procedure and revision of laws’ (Bulletin of the John Rylands Library xxiii [1939] 107–50); F. Wotke Νομοθέται (Pauly-Wissowa, Real-Encyclopädie Supp. vii [1940] 578–81). Quass, Rhodes, and de Laix are listed in n. 4 above.

7 Cf. Rhodes, The Athenian Boule Tables C and G.

8 So Rhodes 28. The opposite view is taken by Kahrstedt 3 n.2 and Atkinson 125 n.2.

9 This is an important, but in my view mistaken, part of Mrs Atkinson's reconstruction of the system; cf. pp. 115–19 of her article, and Gomme's criticism of it in CR liv (1940) 38.

10 Dem. 20.144. The period of one year is given only in the second hypothesis to the speech, §3.

11 The date 353/2 is given by Dion. Hal. Amm. 1.4, and this is regarded as acceptable by R. Sealey (REG lxviii [1955] 110), but D. M. Lewis gives reasons for preferring 354/3 (BSA xlix [1954] 32).

12 Schöll 84 compares the ἐπιχειροτονία of magistrates at the κυρία ἐκκλησία of each prytany (Dem. 58.27, Arist. Ath. Pol. 43.4, 61.2).

13 Schöll 85 refers to a dissertation of 1880 by A. Reusch entitled De diebus contionum ordinariarum apud Athenienses, which I have not seen.

14 This is in the reinscription carried out in the years 410–403. It is not evidence for the arrangement of the laws before that; so I need not discuss here how Solon arranged his laws.

15 Schöll 108 prefers to delete from the text; then the election of the five advocates takes place at the later meeting. That seems a more sensible procedure, and it may be right; but, if so, it is not clear how the five spurious words got into the text at this point.

16 Schöll 109, Wotke 579, and others take the in Dem. 20.146 to be an instance of this type of but Atkinson 110 n.2 rightly rejects this view. Those are taking part in a tried by a jury, not in proceedings before nomothetai following

17 Kahrstedt 1, Atkinson 110, and de Laix 60 take it as the third meeting of the year, and thus the second (or the third counting inclusively) after the one mentioned earlier.

18 Lys. 17.3, Isok. 21.7; cf. MacDowell in Revue Internationale des Droits de l' Antiquité xviii (1971) 267.

19 If this dating of the Review Law in 403/2 or very soon after is correct, it has a bearing on the date of the institution of the proedroi of the boule and ekklesia, who are mentioned in it. Other evidence fails to reveal at what date between 403/2 and 378/7 they were instituted; cf. Lewis in BSA xlix (1954) 31–4 and Rhodes 26, including n.10.

20 The twelfth was the day of a religious festival, the Kronia (Dem. 24.26). Demosthenes says there was a law forbidding secular business on that day: (Dem. 24.29). If this is true (Demosthenes does not ask for the law to be read out to support his statement), Timokrates's proposal should not have been permitted on the day of the festival. Probably a proposal about the Panathenaia, such as Epikrates's decree envisaged, would have been permissible, because it concerned another religious occasion. However, if is an exact quotation from the law and is interpreted strictly, it may mean that only business concerning the Kronia is permitted. In that case Epikrates's decree does infringe this law. But that does not affect the point which I make in my text above, that the decree does not infringe the New Legislation Law and does not need to conform to the Review Law.

21 Quass 70 n.110 rightly rejects the views of Schöll and Francotte.

22 Mrs Atkinson's attempt to deny this is rightly rejected by Harrison in JHS lxxv (1955) 35 and by Rhodes 52.

23 The best discussion now of the is that of H. J. Wolff, “Normenkontrolle” und Gesetzesbegriff in der attischen Demokratie (Sitzungsberichte der Heidelberger Akad., Phil.-hist. Klasse, 1970/2) 28–44.