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date: 16 August 2022

legislation (nomothesia)free

legislation (nomothesia)free

  • Mirko Canevaro

Summary

From the earliest stages, the Greeks understood the distinction between legislation and day-to-day administration. They gave laws a special status and often created specific, separate procedures to enact them. In the Archaic period, specially appointed lawgivers were normally in charge of giving laws to the polis; these laws were intended to be immutable, and their stability secured through entrenchment clauses. Making laws was not considered to be among the normal tasks of the government of the polis, and there were no standard procedures to change the laws once these had been given. Assemblies in Greek city-states often enacted rules that had the force of law, but the legislative changes were not institutionally acknowledged, and the laws enacted by the lawgivers could not be changed. This gave rise to significant problems of legitimacy, and it introduced inconsistencies in the legal system of the polis, a problem that we can observe in 5th-century bce Athens. At the end of the 5th century, the Athenians introduced judicial review to vet new legislation and avoid the introduction of inconsistencies, performed a revision of the laws of the city, and finally institutionalised a distinction between nomoi (“laws,” general permanent norms) and psephismata (“decrees,” ad hoc enactments). They also created a complex new procedure, involving a board of nomothetai, to allow the demos to make new laws and change the existing ones. Similar yet not identical procedures are attested also outside Athens: Hellenistic kings often ordered the appointment of nomothetai or nomographoi to enact rules about political institutions, and nomographoi or nomothetic lawcourts are attested in various cities, with the task of “upgrading” decrees of the demos into laws, and entering them among the laws of the city.

Subjects

  • Greek History and Historiography
  • Greek Law

Archaic Lawmaking in Athens and Beyond

The first written law preserved from the Greek world comes from the Cretan polis of Dreros and is dated to around 650 bce.1 Written laws are widely attested in Greece from the mid-7th century bce. This dating of the earliest written laws is confirmed by the literary tradition, which for many cities records (legendary) lawgivers (nomothetai) active from the mid-7th century bce (e.g. Arist. Pol. 1274a). The most ancient of the Greek lawgivers was allegedly Zaleucus of Epizephirian Locri, active ca. 650 bce, and the first of Athens’s lawgivers was Draco, whose action is traditionally dated to 621 bce. Of course, the Greeks had customary rules, substantive norms of behaviour and social organisation, and related procedures for punishing inappropriate behaviour, before 650 bce. These rules (often referred to in Homer as themistes) and procedures were oral in nature (see e.g. Hom. Il. 9.632–636 and the famous trial scene on Achilles’s shield at Hom. Il. 19.497–508). Therefore, when the first laws were written down, we should not assume that this occurred in a vacuum, and that all the new laws would have covered areas previously unregulated. Lawmaking surely involved creating new norms, but it is likely that a large portion of it had to do with making clear, accessible, and fixed what the law actually was.2

The inscriptional evidence suggests that, normally, written laws were individual enactments that covered one specific area. They certainly did not form a comprehensive “law code” or constitute instances of “codification.”3 This, however, does not mean that they were just ad hoc enactments dealing with specific crises and with no overarching principles behind them.4 First, it is possible to find in Archaic legislation throughout the Greek world, both in the poetry of Solon and in many Archaic laws preserved epigraphically, an overarching concern with preventing tyranny and the concentration of power in a few hands (which is strikingly different from the image of lawgiving provided in Near Eastern sources). The Greeks created laws that distributed powers and prerogatives among various boards of officials, political bodies, and sections of the population: Solon distributed powers and prerogatives among four property classes ([Arist.] Ath. Pol. 7.3–4); a law from Chios (Koerner, 1993, no. 61) grants different duties and responsibilities to various bodies and officials (cf. also Koerner, 1993, no. 39, 74, 87). Archaic laws also establish term limits for magistrates (Koerner, 1993, no. 77, 90, 121), impose penalties for magistrates who do not uphold the law (Koerner, 1993, no. 31, 41), and often assign the enforcement of a rule not to an individual but to a board of officials to avoid the concentration of power.5 How widespread this concern is in Archaic legislation shows that Archaic laws did not simply provide ad hoc solutions, but enforced wider substantive principles.

Second, Solon’s legislation and the very existence of the Gortyn Code are evidence of extensive legislative efforts (involving both collecting and creating laws on a variety of matters) that cannot be explained in terms of piecemeal legislation to meet contingent needs. The laws of Solon mentioned at Plut. Sol. 20–24 include laws on neutrality, epikleroi, dowries, speaking ill of the dead and (in some contexts) the living, bequests, funerals, learning a trade and the obligation of sons to support their fathers, adultery, sacrificial victims, wells and the planting of trees, the export of agricultural products, injuries inflicted by animals, grants of citizenship to immigrants, and public meals in the prytaneion.6 These are only a fraction of the laws that Solon must have enacted, and when such a body of law was produced, the aim must have been “not to solve a particular problem but to make available over a range of issues a statement of what the law was and how it was to be enforced.”7

The Greeks had a number of words to indicate a law: thesmos (from tithemi, with a focus on the laying down of the law); graphos and rhetra (with a focus on its written or oral nature, respectively); nomos (connected with nemein, “to distribute,” “to allocate”); and psephisma (normally translated as “decree,” referring to the act of voting with a psephos). Despite the different nuances of meaning, these terms could more or less be used interchangeably, and no one term was reserved to describe a general rule of permanent validity (what would later be called a nomos) as opposed to an ad hoc enactment part of day-to-day administration. And nevertheless, when legislation proper was produced (general rules meant to regulate individual behaviour and the organisation of the community), this was not conceived of as part of the normal business of the polis. The lawgivers of tradition were often outsiders, or became outsiders and left once their legislative activity was completed (cf. [Arist.] Ath. Pol. 7.3–4): Philolaus, the lawgiver of Thebes, was a Corinthian exile; Androdamas of Rhegium gave laws to the Chalcidians in Thrace; Solon left Athens for ten years.8 Legislation was a special activity, and lawgivers were given special powers. Their status as outsiders, or the need for them to leave and let the city independently administer their laws, was meant to avoid the formation of tyranny. It was also meant (explicitly in the case of Solon: [Arist.] Ath. Pol. 7.2 and Plut. Sol. 25) to secure the stability of the laws and make sure that they could not be changed or repealed. This was a key concern of Archaic legislation, which was expressed with “entrenchment clauses,” clauses that prescribed curses and terrible penalties for whoever deleted or changed a given law (e.g. van Effenterre-Ruzé, 1994–1995, no. 44, 100).9 Similar rules are attested also in the literary record about the legendary lawgivers: Diod. Sic. 12.17 reports for instance that Charondas stipulated that whoever wanted to propose a revision of one of the existing laws should do so with his neck in a noose, and if the proposal were unsuccessful he should be hanged (cf. Dem. 24.139–141; Polyb. 12.16.9–14). These stories, although late and probably apocryphal, are confirmed in their wider meaning by the epigraphic evidence, and they reveal that the Greeks, in the Archaic as well as in the Classical period, viewed legislation as an una tantum process accomplished by authoritative lawgivers who wrote down the laws forever, never to be annulled or changed. Their attitude is summarized by a passage in which the Anonymous of Iamblicus (Vit. Pit. 256), borrowing the formulation from the Pythagorical Sentences of Aristoxenus, states that the Pythagoreans “considered just to stay faithful to the ancestral customs and norms, even if slightly inferior to those of others, because to abandon easily the existing laws and to be inclined to introduce innovations would be neither convenient nor useful.”10

Athens was no different, and Dem. 23.62 reports the entrenchment clause of Draco’s homicide law. As for Solon, although there is no evidence of entrenchment clauses for his legislation, both [Arist.] Ath. Pol. 7.2 and Plut. Sol. 25 inform us that he bound the Athenians to keep to his laws by making them swear an oath (apparently in advance: Hdt. 1.29.2). Solon therefore effectively entrenched his laws, and later Athenians understood his intention as such. Solon moreover was asked, and elected by the Athenians, to give them laws, and there is no sign that they approved his laws afterwards. 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 5th century bce, saw Draco and Solon as the authors of their laws (e.g. Cratinus dr. 274 Kock; Ar. Nub. 1187; Av. 1660). Because of this, they had an institutionalized understanding that the laws should not be changed; they 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 (see e.g. Antiph. 5.14–15, 6.2; Ar. Nub. 1187; Aesch. Eum. 690–695, 1113–1114).

The Reforms of Late 5th-century bce Athens

Throughout the 5th century, the Athenians progressively came to realise that, despite their ideas about the immutability of the laws, legislation was necessary and was in fact enacted in the Assembly, as part of the normal business, even in the absence of separate and legitimate procedures for enacting general rules as opposed to ad hoc measures (e.g. [Arist.] Ath. Pol. 22.1, 22.5, 26.2, 26.4, 47.1). These enactments, however, were not recognised as on the same level as those of Solon, and the Athenians did not accept that many of them in fact contradicted the laws of Solon.11 They still believed that the laws of Solon were unchangeable and unchanged, despite the fact that their day-to-day activity in the Assembly introduced new rules that sometimes tacitly contradicted the ancestral laws. The result of such legislation was that the laws became progressively inconsistent, and liable to charges of illegitimacy by anti-democrats. In the last years of the 5th century, the Athenians attempted to deal with these problems. The first procedure they created for this purpose was the graphe paranomon, a public action against illegal decrees. We know only a few cases of this procedure before the 4th century bce—the earliest evidence is Andoc. 1.17, 22, who refers to a successful graphe paranomon brought in 415 by Leagoras of Cydathenaeum against Speusippus for a decree enacted by the Council.

The basic procedural steps in the 5th century BCE were the following. (1) During the discussion of a proposal or after it had been approved (Xen. Hell. 1.7.12–14; Dem. 22.5, 9–10), anyone among the Athenians could indict the bill for being paranomon. (2) The accuser had to swear that the decree was illegal (hypomosia) and later (3) present a written text to the thesmothetai explaining why the decree was illegal, citing as supporting evidence the statutes that proved that it was illegal. (4) If one dropped the case after the hypomosia, he was fined 1,000 drachmas and was forbidden to bring any public actions in the future; (5) the same happened if the accuser failed to receive one-fifth of the votes at the trial. (6) The case was judged by a panel of at least 500 judges and possibly as many as 6,000 (Andoc. 1.17). (7) If the accusation was successful, the decree was repealed if already enacted, or could not be enacted at all if it had been indicted before the vote in the Assembly. (8) If the proposal had not been approved by the Assembly before being indicted and the prosecution was unsuccessful, the proposal went back to the Assembly for approval. (9) If less than one year had elapsed since the presentation of the bill (Dem. 23.104), the proposer could be given any penalty from a small fine to death or full atimia (Hyp. Eux. 18; [Dem.] 58.1).12

In the 5th century, before the distinction between nomoi and psephismata was introduced (see Athenian nomothesia in the 4th century bce), the aim of the procedure was to provide for the repealing of new enactments that contradicted existing laws. It was a first attempt to secure the consistency of the laws of the city while accepting the legitimacy of the enactments of the demos. This procedure, however, had one important weakness: it could not deal with inconsistencies retroactively. Moreover, it was unacceptable to the oligarchs in the city, who argued that only the laws enacted once and for all by special nomothetai were legitimate, and the enactments of the demos were not. Accordingly, in the course of their oligarchic revolutions, they styled themselves as special nomothetai or syngrapheis autokratores ([Arist.] Ath. Pol. 29.2; Thuc. 8.97.2) and attempted to eliminate the problem; the Thirty, for instance, took down from the Areopagus the laws of Ephialtes and Archestratus, and rescinded laws that gave rise to disagreements ([Arist.] Ath. Pol. 35.2); a provision of the “Constitution for the present” discussed at [Arist.] Ath. Pol. 31.3 in connection with the Four Hundred (of 411 bce) orders that a new Council of 400 must follow the new laws and will not be allowed to change them or enact others. Their action shows that that their model of lawmaking was the Archaic one, and they rejected any authority of the demos to make laws.

Both restorations of democracy, in 410 and 403 bce, also dealt with these issues, with more successful solutions.13 The restored democracy in 410 began the process of republishing the “laws of Solon.” The most important source for this procedure is Lysias’ Against Nicomachus (30.2–5), corroborated by the republished law of Draco (IG I3 104). The speech attacks Nicomachus in his role as anagrapheus of the nomoi. His job (as member of a panel of anagrapheis) was finding the laws of the city (not just those of Solon), submitting them to the demos for approval or rejection, and then publishing them in front of the Stoa of the King (cf. Andoc. 1.81). The procedure was intended to last only four months, but at first it took six years, then was interrupted by the Thirty and resumed in 403/402 bce only to be completed around 400/399 bce. During this time, the Assembly re-examined and approved or rejected all earlier laws.14 The democrats thereby claimed the laws of Draco and Solon for themselves against the oligarchic attempts to appropriate them. They also dealt for the first time retroactively with their inconsistencies. In doing this, they recognized that statutes from different periods (and not just those of Draco and Solon) could be valid, and confirmed their validity through a vote of the demos, which thereby affirmed its right to legislate.

This was, however, a una tantum procedure, which did not provide any rules of change for the future. In 403, after the overthrow of the Thirty and the restoration of democracy, the Athenians created such rules of change and placed the nomoi on a more solid legal foundation. The main source for these reforms is Andocides (1.81–89)15, who states that after democracy was restored the Athenians elected a commission of twenty to govern the city until laws could be enacted, and established that until then the thesmoi of Draco and the nomoi of Solon were to be valid. Members of the Council were eventually selected by lot, and the Assembly elected nomothetai. The Athenians next voted to continue the scrutiny of the laws. These were two separate procedures: one resumed the scrutiny and republication of the laws initiated in 410; the other appointed special nomothetai, with a role akin to that of Solon or Draco, to create new laws. Andocides (1.85–89) discusses some of the laws that these specially appointed nomothetai created; some of them dealt with the aftermath of the civil war, and others with future legislation. One of them provides that “it is not allowed for magistrates to use an unwritten (agraphos) nomos not even about a single matter”—a basic rule that orders public officials to perform their tasks following the instructions of the written laws of the city, and not according to custom or to other principles. Another provision states that “no decree, neither of the Council nor of the Assembly, is to have more authority than a law.” This law introduces for the first time a clear-cut distinction between nomoi and psephismata, as well as hierarchy between the two: nomoi are higher rules that can overturn, but cannot be overturned by, psephismata. Once this rule was passed, the Athenians respected this distinction very strictly and no longer used nomos and psephisma interchangeably (see Athenian nomothesia in the 4th century bce).16 Another provision (Andoc. 1.89; cf. Dem. 23.86, 218; 24.18, 59, 116, 188; [Dem.] 46.2) defines (negatively) what a nomos is: “It is not permitted to enact a law directed against an individual unless the same law applies to all Athenians.”17 In accordance with the definitions we find in Arist. Pol. 1292a 32–37 and Eth. Nic. 1137b 13–14, this provision indicates that a nomos must have a general content and apply to all, whereas psephismata deal with particular cases. A further law (Dem. 24.42, the law of Diocles) defines from what time laws are to be in force, forbidding retroactive legislation and laying down the principle that laws are meant to be valid forever.18

Finally, the special nomothetai of 403 proceeded to institutionalize legal change by creating a complex procedure of nomothesia for nomoi (as opposed to psephismata) to be enacted and amended.19 The main sources for this procedure are Dem. Tim. and Lept., supplemented by Aeschin. 3.38–40 and a few inscriptions (see Athenian nomothesia in the 4th century bce).20 The procedure worked as follows. (1) In order to introduce a new law, a probouleuma had to be approved by the Council, introducing a vote in the Assembly about whether new laws could be proposed. (2) Following the probouleuma, a preliminary vote in the Assembly, at any point of the year, had to be held that would allow new laws to be proposed (Dem. 24.25; IG II2 333, IG II3 320, IG II2 140). (3) Once new proposals had been authorized by the Assembly, all new proposals had to be posted in front of the monument of the Eponymous Heroes (Dem. 24.25; 20.94), so that anybody could see them. (4) The proposals had to be read out by the secretary at each meeting of the Assembly until the appointment of the nomothetai, to allow everyone to make up their minds (Dem. 20.94). (5) In the third meeting of the Assembly after the preliminary vote, on the basis of the proposals submitted, the people had to discuss the appointment (or summons) of nomothetai and pass a decree of appointment (or summons; Dem. 24.25; 20.92). (6) Opposing laws, however, had to be repealed before the new laws could be enacted by the nomothetai (Dem. 24.32, 34–35; Dem. 20.93). (7) Presumably at the same meeting of the Assembly that appointed the nomothetai, expert synegoroi (advocates) were elected to defend those laws whose repeal was necessary for enacting the new laws (Dem. 24.36; 20.146). (8) If the proposer of a new law violated any of these rules, anyone could bring him to trial through a graphe nomon me epitedeion theinai (a public charge for enacting an inexpedient law; Dem. 24.32), and if the case was heard within a year after the enactment of the law, the punishment could be anything the court decided, from a small fine to atimia or death.

The creation of this procedure, of the new distinction between nomoi and psephismata, and of the graphe nomon me epitedeion theinai, also changed the scope of the old graphe paranomon. The two procedures were similar, but from this point on the graphe paranomon could no longer be used against any proposal, but only against new psephismata that were not consistent with one or more of the existing nomoi. Conversely, the graphe nomon me epitedeion theinai was concerned with nomoi that contradicted existing ones or had not been enacted following the correct procedures, and it could be used both against new laws (either enacted or just proposed) or against old laws that needed to be repealed before a new law could be enacted by the nomothetai.

Athenian nomothesia in the 4th century bce

Throughout the 4th century bce, until Macedon’s victory in the Lamian war, the Athenians strictly followed the new procedures for nomothesia created in the late 5th century: general rules valid forever were normally enacted as nomoi by the nomothetai through the new nomothesia procedure; decrees were enacted by the Council or the Assembly.21 The distinction was enshrined in the enactment formulas of the prescripts: in psephismata we find formulas such as “it was resolved/it should be resolved by the people/by the Council” (edoxe/dedochthai toi demoi/tei boulei); in nomoi, formulas such as “it was resolved/it should be resolved by the nomothetai” (edoxe/dedochthai tois nomothetais). There are ten 4th-century nomoi preserved on stone from Athens, and all conform to this pattern (SEG 26.72; Stroud 1998; Agora Excavations, inv. no. I 7495 (unpublished); IG II2 140; IG II2 244; IG II3 320; IG II3 447; IG II3 445; IEleusis 138; to these one should add SEG 52.104, cf. Canevaro, 2013c). Three more inscriptions appear at first glance not to respect this distinction, but in fact conform to it (IG II3 452, IG II3 327, IG II3 355). They order that, at the next session of the nomothetai, particular sums of money should be assigned to a particular magistrate for the purpose of funding particular honours, so they do not constitute general rules with permanent validity. And yet the allocation of the funds of the city was regulated by a nomos, the merismos (allocation of the budget). Because no psephisma was more binding than a nomos, the only legitimate way to change the allocation was through a nomos.

The complex procedure of nomothesia appears to have discouraged frivolous legislation: inscriptions preserve around 800 decrees for the 4th century bce, but only ten laws. On the other hand, this difference can be explained in two ways. First, the enactment of general permanent rules would have occurred much less often than ad hoc measures for the day-to-day administration of the polis; second, the epigraphic habit meant that honorary decrees were more frequently inscribed than other measures. A passage in Demosthenes’s speech Against Timocrates (24.142) criticizes the Athenians for passing too many laws, claiming that they enacted laws almost ten times a year. Even allowing for rhetorical exaggeration, this passage provides evidence of numerous sessions of the nomothetai, each session considering multiple proposals. Other evidence for legislation in Athens comes from the speeches of the orators delivered in, or referring to, cases of graphe paranomon and graphe nomon me epitedeion theinai. There is evidence for thirty-five graphe paranomon cases in the 4th century bce, but for only six graphe nomon me epitedeion theinai cases.22 Although the number of public actions against nomoi is much lower, they are more than the epigraphic evidence would lead us to expect. The Athenians clearly used the new nomothesia procedure quite often.

Despite the fact that the Athenians normally followed the correct procedures, such a large amount of legislation must have occasionally given rise to infractions. The case against the law of Timocrates (Dem. Tim.) is a notable example. In 354/3 Timocrates introduced a law that allowed public debtors who failed to pay what they owed on time to avoid prison by presenting sureties. Demosthenes wrote a speech for a certain Diodorus, who brought the graphe nomon me epitedeion theinai against the law, in which he alleges (with good evidence) that Timocrates did not respect the prescribed times for legislating: he was authorised by the Assembly to propose legislation, but then scheduled a session of nomothetai for the very next day (instead of waiting for the third Assembly meeting), and did not post his proposal at the monument of the Eponymous Heroes.23 In this speech, as well as in the other extant speech for a graphe nomon me epitedeion theinai, Demosthenes’s Against Leptines, the prosecutors paint a picture of unscrupulous politicians enacting more laws than decrees, not paying any attention to maintaining the coherence of the legal system, and bypassing the correct procedures. One should not take their statements at face value: these are prosecution speeches against new laws and their proposers, not the statements of an impartial source. The picture would be very different if we had the speeches made by those defending the laws, or the speeches delivered by the proposers when they first introduced their bills. As we have seen, the epigraphic evidence shows that nomoi were normally passed in accordance with the correct procedures, and that the volume of new legislation was considerable but not excessive. In fact, the speeches Against Timocrates and Against Leptines are themselves evidence that when the correct procedures were not followed, the violation of the law was detected and prosecuted.

The main argument used by Demosthenes against a new law is that it contradicts previous laws, which the defendant failed to repeal before enacting his own law (e.g. Dem. 24.142). Often the argument is even broader, showing that the new law contradicts the general spirit of the laws of the city. This view is predicated on the assumption that the laws of Athens were rationally organized and coherent partly through the conscious intention of the original lawgiver and partly as a result of the nomothesia procedure that preserved this coherence. It is clear that the coherence of the legal system remained a goal of the Athenian democracy, because at some point in the 4th century bce the Athenians created an additional procedure that assigned to specific magistrates the task of investigating the existing laws and identifying contradictions between statutes. These contradictions had to be submitted to the nomothetai, who would choose one provision against the other and restore the coherence of the laws (Dem. 20.91; Aeschin. 3.38–39).24 Inscriptions also provide evidence for this concern about coherence; for example, the law of Nicophon (SEG 26.72, ll. 55–56) prescribes that the enactments that contradict the new law should be physically destroyed.

The new legislative procedures gave the demos the power to enact new laws whenever necessary and appropriate throughout the 4th century. At the same time, the new procedures helped to preserve the coherence of the laws of the city and to protect them against hasty and ill-considered legal changes. They provided clear rules of change and procedures for judicial review of new laws, at the same time banning retroactive legislation and securing a degree of stability for the legal system.

These procedures did not, however, survive the Athenian defeat in the Lamian war (322 bce).25 It was probably Antipater who dissolved the lawcourts and abolished these procedures. Later Demetrius of Phalerum styled himself nomothetes in the tradition of the Archaic lawgivers, and prevented the demos from making laws through the creation of nomophylakes (guardians of the law) who could block legislation in the Assembly and in the Council.26 When Athens was “freed” by Demetrius Poliorcetes in 307 (Diod. Sic. 20.45.5, 46.3), in order to restore the democratic constitution the Athenians appointed nomothetai, and yet these were not the normal panels of nomothetai typical of the 4th-century procedure, but rather a specially appointed board whose role was akin to that of the nomothetai of the late 5th century, and which was closely linked with Demetrius.27 There is no evidence for nomothetai in Athens after Demetrius’s expulsion in 301. It is likely that after 301 the Athenians passed laws in the same way as they passed decrees, through a simple vote of the Assembly.

Evidence for Lawmaking Beyond Athens

Despite the lack of a specific procedure of nomothesia to enact nomoi (as opposed to psephismata) in Athens from the 3rd century on, the Athenians still preserved the view that nomoi were general, permanent rules whereas psephismata were ad hoc measures. Magistrates and politicians were regularly praised in Athens for behaving in accordance with both the nomoi and the psephismata of the city (e.g. IG II2 404; 674; 776; 1006; 1028; Agora 16.261 l.1), and the distinction between the two is even found in the language of bylaws passed by private associations, which tend to refer to general norms as nomoi (e.g. IG II2 1275 ll. 12–17). Because this distinction is found even in the absence of distinct procedures, one must be careful not to assume that a community had a separate procedure for enacting laws as at Athens simply because their documents contain the different terms nomos and psephisma. Thus, for instance, the mention in IG XII 8, 51 ll. 2–6 (II c. BCE) of both terms cannot be taken by itself to indicate the existence in Imbros of separate procedures for enacting laws and decrees and of a clear hierarchy between the two (cf. also e.g. I.Kaunos 19, IG XII 7, 406), but it is evidence that the Imbrians had a general notion of the different meanings of nomos and psephisma.28

In the same way, evidence for procedures akin to the Athenian graphe paranomon in a community does not necessarily indicate that nomoi and psephismata were enacted by different procedures in that community, and were entirely distinct. Such procedures are attested, for instance, in a decree in honour of foreign judges sent by Heracleia to Demetrias (SEG 23.405, I/II c. CE): their job was to give a verdict about a decree that had been indicted as paranomon—of course, in this case, the charge of illegality was decided not by popular judges, but by foreign judges (cf. also Polyb. 28.7.1–15). Another decree from Mylasa (I.Labraunda 56 ll. 2–3, early Imperial) speaks of dikai arising from a paranomon decree. This evidence shows that judicial review of measures passed by the polis was widespread in the Greek world, and that a concern for the coherence of legal measures was also common. But it is unclear whether these cases presuppose the existence of a formal hierarchy between nomoi and psephismata. It is more likely that these procedures were similar to the Athenian graphe paranomon in the 5th century bce, by which psephismata are “contrary to the law” if they contradict existing psephismata that have not been repealed. This is in fact the situation envisioned in four Hellenistic decrees from Magnesia on the Meander (I.Magnesia 92a ll. 13–14; 92b ll. 18–19; 94 ll. 12–13; I.Priene 61 ll. 30–31; 3rd/2nd century BCE), which state that if a previous decree is inconsistent with the one now enacted, that should make the previous decree invalid.29

Where a clear hierarchy of enactments existed, the higher authority of laws was enforced in a variety of ways.30 One method was through entrenchment clauses (see Archaic Lawmaking in Athens and Beyond; see IG XII 2, 645b ll. 23–58 for a Hellenistic example). Another was through the appointment of special boards of lawmakers who gave laws to the city at particular, critical junctures. This is the method prescribed in several royal diagrammata; for instance, Alexander in 334 sent a diagramma instructing the Chians to elect nomographoi who would write and correct (grapsousi kai diorthosousi) the laws to effect a change in regime (IK Chios 32). The same arrangement was imposed between 306 and 302 by Antigonus on the Teans and the Lebedians (IK Teos 59): he ordered that the Teans and Lebedians should elect three nomographoi each, who should swear an oath and then write (that is, propose) the laws that they considered most expedient and fair to both cities for the new synoecised city within six months from their election. They should submit their proposals for laws to the demos for ratification. If a citizen wanted to propose a law, he had to submit it to the nomographoi, who would then submit it to the Assembly, together with those of their own making. The laws about which the demos disagreed had to be sent to Antigonus himself for review and approval.

Ptolemy I appears also to have imposed a similar board in his diagramma to Cyrene in 322/1 bce (SEG 9.1), but in this case the special lawmakers were called nomothetai, not nomographoi.31 The two nomographoi of the Aetolian League mentioned by Polyb. 13.1.2, as well as the 3rd-century bce diorthotai of Gonnus in Thessaly (Gonnoi 112), are also probably examples of specially appointed lawmakers. This form of nomothesia resembles that of the Athenian “special” nomothetai of 403 and of 307 bce, and its model is the action of Archaic nomothetai such as Solon (see Archaic lawmaking in Athens and beyond). In other cases we find traces of standard (not special) procedures for separating enactments of a higher level from more regular enactments. These are comparable with, yet not identical to, Athenian nomothesia in the 4th century bce. Sometimes the evidence shows that enactments meant to have higher validity were recorded in specific places; for instance, in Aegiale on Amorgus, laws were recorded on special tablets (deltoi, IG XII 7, 515; II c. BCE). Where this happened, it usually required further approval of the enactment by a specific board; for instance, a decree of Hermione that recognises rules about a festival must be written among the laws by nomographoi (IG IV 679; III/II c. bce); a decree from Megalopolis recognising the festival of Artemis Leucophryene at Magnesia requires nomographoi to record the decree among the laws (I.Magnesia 38, III/II c. bce; cf. also I.Magnesia 28 of Kalydon, ca. 206 bce); another decree from Samos (of Cephallenia) enacted for the same purpose is to be placed among the laws by the magistrates and the nomographoi (I.Magnesia 35, III/II c. BCE). The role played by the nomographoi in these inscriptions is performed in a decree from Kyme by a “nomothetic lawcourt” (nomothetikon dikasterion, I.Kyme 12 with SEG 47.1660; II c. bce) to which a designated introducer of the law (Erybothon) needs to submit the decree. At Demetrias this same role, that of making a decree into a law, is assigned in an inscription to the elected strategoi and to the nomophylakes (IG IX 2, 1109 ll. 91–93; II c. bce).

One should, however, note that in all these cases the specific procedure, as well as the participation of the nomographoi, of the nomophylakes, or of the nomothetikon dikasterion, does not mean that decrees and laws are two entirely separate and incommensurable categories as they were at Athens. On the contrary, all these measures were enacted first by the Council or the Assembly as regular decrees, and were then “upgraded” into laws by a special procedure. The distinction was not as strict as in Athens, where in the 4th century bce nomoi and psephismata were enacted through entirely separate procedures, and laws could not be enacted as decrees, and vice versa. An inscription from Corcyra, however, may suggest a stricter distinction between laws and decrees, with a more separate procedure. In this inscription, the participation of the city in the festival at Magnesia is approved by two separate enactments: the decree inscribed here, and a further law to be drafted by elected nomothetai who will then proceed to enter it among the (sacred) laws (I.Magnesia 44 ll. 34–36; III/II c. bce).

Whatever the exact roles of these sessions of nomographoi, nomophylakes, nomothetai, of the nomothetikon dikasterion, they probably met at particular times and in accordance with precise procedures as they did at Athens; for instance, a decree from Cnidus about the participation of the city in the festival of Artemis Leucophryene at Magnesia states that the nomographoi shall introduce these decisions among the laws following the schedule specified in the laws (I.Magnesia 56 ll. 31–33). And two decrees, one of the Acarnanian League (IG IX I2 2, 583 ll. 75–77; 216 bce) and one of Corcyra (IG IX I, 694 ll. 137–139; before 229 bce) prescribe that changes to the laws should be made when specific sessions take place (respectively, a nomothesia session, and a diorthosis ton nomon session, conducted by diorthotores). In all these different poleis, the hierarchy between measures, the different procedures to enact them, and the bodies in charge of proposing and approving them, were set out by particular laws.

Discussion of the Literature

The study of Athenian lawmaking throughout the Archaic and Classical ages (nomothesia) has been a popular one, and it is impossible in this context to provide a full account of the history of the study of this subject. This section will provide only a few references to influential works, starting with diachronic accounts of the development of Athenian democracy and laws that are particularly concerned with legislation. It will then discuss particular works on specific aspects of Athenian and Greek legislative practices.

Many scholars believe that at the end of the 5th century, with the revision of the laws and the creation of the nomothetai, Athens moved from a radical democracy where the people in the Assembly were in charge of legislation to a more moderate regime founded on the rule of law, where legislation resided with a separate body, often identified with a special session of judges who had sworn the Judicial Oath. This point of view, with different emphases and in different frameworks, has been often stated, and its most influential formulation is to be found in Ostwald (1986). Ostwald does not concentrate only on procedural matters, but paints a wider picture of the intellectual and institutional context of Athenian democracy’s passage “from popular sovereignty to the sovereignty of law.” Against this reconstruction, Sealey (1987) stresses the continuity of Athenian conceptions of the rule of law, which is, in his opinion, what in fact 4th-century bce Athenians intended by democracy. He uses legislative practices as an example among others of such continuity. Harris (2013) argues, on the other hand, that Athenian democracy was characterised by democracy and the rule of law, which were successfully combined in Athenian institutions and ideology. These authors do not focus specifically on legislative practices, although these play a role in their arguments.

Particularly important for defining the continuity of democratic ideology and institutions as a constant attempt to achieve both democracy and the rule of law is Harris (2006), in particular the essay “Solon and the Spirit of the Law in Archaic and Classical Greece.” This essay discusses Archaic Greek lawgiving and traces back to Solon a consistent conception of the rule of law that informs institutional development in various aspects of the running of the Greek poleis in the following centuries, and in particular points out how Archaic lawmaking separated legislation from administration, and intended its activity as a bulwark against tyranny. In particular, Harris builds on Lewis (1997) to highlight the role of entrenchment clauses in early legislation down to the 5th century, and stresses the importance of distributing power among various bodies of officials, as well as securing their accountability. Koerner (1993) and van Effenterre-Ruzé (1994–1995) are extensive collections of Archaic laws, and Rhodes-Leão (2015) is a recent and up-to-date collection of the fragments of Solon’s laws.

Much work has been done since the mid-20th century on the more technical aspects of Athenian legislative procedure, yet historians have often relied on sources, such as the documents in the speeches of the orators, that should not be considered reliable (Canevaro, 2013a). The procedures graphe paranomon and graphe nomon me epitedeion theinai have been studied extensively in their most juridical aspects in Wolff (1970). His explanation of these procedures in terms of Normenkontrolle has been contextualized in the overall political system by Hansen (1974). Hansen reads these procedures as examples of judicial review of legislation. The revision of the “code” of laws at the end of the 5th century has been surveyed in many articles, and no consensus has been reached (owing, probably, to the use of unreliable documents as key evidence; see Canevaro-Harris, 2012). Some recent works on these topics are Joyce (2008), Shear (2011), and Carawan (2013). A series of excellent contributions by Hansen (1983, 161–205) has, however, at least successfully defined the distinction between nomoi (laws) and psephismata (decrees) instituted at the end of the 5th century.

Nomothesia of the 4th century has also been the object of much scholarship, with the most important works being MacDowell (1975), who first believed in a development of the procedure also in the 4th century, Hansen (1985), who tried to provide a unified account of 4th-century practices, and Rhodes (1985), who corrects MacDowell and Hansen in many respects. The most up-to-date discussion of these issues, which presents a new reconstruction of the procedures (not based on spurious documents), is Canevaro (2013b). Canevaro (2016) provides a general overview of the development of Athenian legislative procedures from the Archaic period to the late 4th century. Canevaro (2013c) follows the development of the procedures into the early Hellenistic period.

There are no comprehensive studies of the procedures of lawmaking outside Athens. Some discussion of such procedures can be found in Rhodes with Lewis (1997, 497–499), and Velissaropoulos-Karakostas (2011, 49–109). Habicht (2008) discusses the extra-Athenian evidence for judicial review and graphe paranomon.

Bibliography

  • Canevaro, Mirko. The Documents in the Attic Orators: Laws and Decrees in the Public Speeches of the Demosthenic Corpus. Oxford: Oxford University Press, 2013a.
  • Canevaro, Mirko. “Nomothesia in Classical Athens: What Sources Should We Believe?” Classical Quarterly 63.1 (2013b): 1–26.
  • Canevaro, Mirko. “The Twilight of Nomothesia: Legislation in Early-Hellenistic Athens (322–301).” Dike 14 (2013c): 55–85.
  • Canevaro, Mirko. “Making and Changing Laws in Ancient Athens.” In Oxford Handbook of Ancient Greek Law. Edited by E. M. Harris and Mirko Canevaro. Oxford: Oxford University Press, 2016.
  • Canevaro, Mirko, and E. M. Harris. “The Documents in Andocides’ On the Mysteries.” Classical Quarterly 62.1 (2012): 98–129.
  • Carawan, Edwin. The Athenian Amnesty and Reconstructing the Law. Oxford: Oxford University Press, 2013.
  • Habicht, Christian. “Judicial Control of the Legislature in Greek States.” Studi Ellenistici 20 (2008): 17–23.
  • Hansen, Mogens Herman. The Sovereignty of the People’s Court in the Fourth Century B.C. and the Public Action against Unconstitutional Proposals. Odense: University Press of Southern Denmark, 1974.
  • Hansen, Mogens Herman. The Athenian Ecclesia: A Collection of Articles 1976–1983. Copenhagen: Museum Tuscolanum Press, 1983.
  • Hansen, Mogens Herman. “Athenian nomothesia.” Greek, Roman and Byzantine Studies 26 (1985): 345–371.
  • Harris, E. M. Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics. Cambridge, U.K.: Cambridge University Press, 2006.
  • Harris, E. M. The Rule of Law in Action in Democratic Athens. Oxford: Oxford University Press, 2013.
  • Hölkeskamp, Karl-Joachim. Schiedsrichter, Gesetzgeber und Gesetzgebung im archaischen Griechenland. Stuttgart: Steiner, 1999.
  • Joyce, Christopher J. “The Athenian Amnesty and the Scrutiny of 403.” Classical Quarterly 58 (2008): 507–518.
  • Koerner, Reinhard. Inschriftliche Gesetzestexte der frühen griechischen Polis. Cologne: Böhlau, 1993.
  • Lewis, D. M. “Entrenchment Clauses in Attic Decrees.” In Selected Papers in Greek and Near Eastern History. Edited by P. J. Rhodes, 136–149. Cambridge, U.K.: Cambridge University Press, 1997.
  • MacDowell, Douglas M. “Law-making at Athens in the Fourth Century B.C.” Journal of Hellenic Studies 95 (1975): 62–67.
  • Ostwald, Martin. From Popular Sovereignty to the Sovereignty of Law. Berkeley and Los Angeles: University of California Press, 1986.
  • Rhodes, P. J.Nomothesia in Fourth-Century Athens.” Classical Quarterly 35 (1985): 55–60.
  • Rhodes, P. J. and Delfim F. Leão, The Laws of Solon: A New Edition with Introduction, Translation and Commentary. London: I. B. Tauris, 2015.
  • Rhodes, P. J., and D. M. Lewis. The Decrees of the Greek States. Oxford: Oxford University Press, 1997.
  • Sealey, Raphael. The Athenian Republic: Democracy or the Rule of Law? Philadelphia: Penn State University Press, 1987.
  • Shear, Julia L. Polis and Revolution: Responding to Oligarchy in Classical Athens. Cambridge, U.K.: Cambridge University Press, 2011.
  • van Effenterre, Henri, and Françoise Ruzé. Nomima. Recueil d’inscriptions politiques et juridiques de l’archaisme grec. Rome: École Française de Rome, 1994–1995.
  • Velissaropoulos-Karakostas, Julie. Droit grec d’Alexandre à Auguste: 323 av. J.-C.-14 ap. J.-C.: Personnes, biens, justice. Paris: de Boccard, 2011.
  • Wolff, Hans J. Normenkontrolle und Gesetzesbegriff in der athenischen Demokratie: Untersuchungen zur graphe paranomon. Heidelberg: Sitzungsberichte der Heidelberger Akademie der Wissenschaften, Phil. Hist. Klasse 1969, 1970.

Notes

  • 1. Reinhard Koerner, Inschriftliche Gesetzestexte der frü hen griechischen Polis (Cologne: Böhlau, 1993), no. 90 = Henri van Effenterre and Françoise Ruzé, Nomima. Recueil d’inscriptions politiques et juridiques de l’archaisme grec (Rome: École Française de Rome, 1994–1995), no. 81. Koerner (1993) and van Effenterre-Ruzé (1994–1995) are the two standard collections of Archaic Greek laws, and will be used throughout this section.

  • 2. See e.g. P. J. Rhodes and Delfim F. Leão, The Laws of Solon: A New Edition with Introduction, Translation and Commentary (London: I. B. Tauris, 2015), 6.

  • 3. Against any understanding of Archaic legislation as “codification” see Karl-Joachim Hölkeskamp, Schiedsrichter, Gesetzgeber und Gesetzgebung im archaischen Griechenland (Stuttgart: Steiner, 1999).

  • 4. Hölkeskamp, Schiedsrichter, 263–264.

  • 5. For these anti-tyrannical concerns in Archaic laws and the methods to avoid concentration of power see E. M. Harris, Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics (Cambridge, U.K.: Cambridge University Press, 2006), 3–39, with plenty of examples.

  • 6. See now Rhodes and Leão, Laws of Solon, for a collection of the evidence for Solon’s law that takes into account the most recent scholarship.

  • 7. Rhodes and Leão, Laws of Solon, 2.

  • 8. See Harris, Democracy and the Rule of Law, 11–12 for more examples.

  • 9. On entrenchment clauses and their function see D. M. Lewis, “Entrenchment Clauses in Attic Decrees,” in Selected Papers in Greek and Near Eastern History, ed. P. J. Rhodes (Cambridge, U.K.: Cambridge University Press, 1997), 136–149; and Harris, Democracy and the Rule of Law, 22–25.

  • 10. See Mirko Canevaro, “Making and Changing Laws in Ancient Athens,” in Oxford Handbook of Ancient Greek Law, ed. E. M. Harris and Mirko Canevaro (Oxford: Oxford University Press, 2016) for a more extensive discussion.

  • 11. See Canevaro, “Making and Changing Laws,” for more sources and more evidence.

  • 12. For discussion of graphe paranomon see Hans J. Wolff, Normenkontrolle und Gesetzesbegriff in der athenischen Demokratie: Untersuchungen zur graphe paranomon (Heidelberg: Sitzungsberichte der Heidelberger Akademie der Wissenschaften, Phil. Hist. Klasse 1969, 1970); and Mogens Herman Hansen, The Sovereignty of the People’s Court in the Fourth Century B.C. and the Public Action against Unconstitutional Proposals (Odense: University Press of Southern Denmark, 1974). See graphē for further information on Athenian public charges.

  • 13. The scholarship on the democratic restorations is enormous. See in particular Christopher J. Joyce, “The Athenian Amnesty and the Scrutiny of 403,” Classical Quarterly 58 (2008): 507–518; Julia L. Shear, Polis and Revolution: Responding to Oligarchy in Classical Athens (Cambridge, U.K.: Cambridge University Press, 2011); Edwin Carawan, The Athenian Amnesty and Reconstructing the Law (Oxford: Oxford University Press, 2013); and Mirko Canevaro and E. M. Harris, “The Documents in Andocides’ On the Mysteries,” Classical Quarterly 62.1 (2012): 98–129, 110–116.

  • 14. For the sources, and the technicalities of this procedure, see Canevaro and Harris, “Documents,” 110–116.

  • 15. The documents inserted in the section are however forgeries and one needs to rely on the orator’s paraphrase. For a discussion of the documents and of Andocides’ narrative see Canevaro and Harris, “Documents.”

  • 16. This distinction has been studied and tested in Mogens Herman Hansen, The Athenian Ecclesia: A Collection of Articles 1976–1983 (Copenhagen: Museum Tuscolanum Press, 1983), 161–205.

  • 17. See Canevaro and Harris, “Documents,” 117–119; and Mirko Canevaro, The Documents in the Attic Orators: Laws and Decrees in the Public Speeches of the Demosthenic Corpus (Oxford: Oxford University Press, 2013), 145–150.

  • 18. On the law of Diocles see Canevaro, The Documents in the Attic Orators, 121–127.

  • 19. For the attribution of the new nomothesia procedures to the special nomothetai of 403 see Canevaro, “Making and Changing Laws.”

  • 20. Dem. Tim. contains documents that purport to be the actual laws on nomothesia (Dem. 24.20–23, 33), and have been the basis of most scholarly reconstructions of the procedure (most notably D. M. MacDowell, “Law-making at Athens in the Fourth Century B.C.,” Journal of Hellenic Studies 95 (1975): 62–67; P. J. Rhodes, “Nomothesia in Fourth-Century Athens,” Classical Quarterly 35 (1985): 55–60; Mogens Herman Hansen, “Athenian nomothesia,” Greek, Roman and Byzantine Studies 26 (1985): 345–371). Mirko Canevaro, “Nomothesia in Classical Athens: What Sources Should We Believe?,” Classical Quarterly 63.1 (2013b): 1–26, shows that these documents are later forgeries and unreliable, and the reconstruction provided here follows that offered in this study.

  • 21. Hansen, Athenian Ecclesia, 179–205, shows that the only exceptions to this rule are found in the years 340–338 right before and after the battle of Chaeronea, when Athens was in fatal danger and therefore correct procedure was occasionally dropped.

  • 22. See the catalogue of Hansen, Sovereignty of the People’s Court.

  • 23. On this speech and the procedure see Canevaro, “Nomothesia in Classical Athens.”

  • 24. Dem. 20.91 attributes the task to specially elected commissioners, while Aeschin. 3.38–39 attributes it to the thesmothetai. It is unclear whether the task was transferred to them at some point (MacDowell, “Law-making,” 72; and Rhodes, “Nomothesia,” 60), or commissioners and thesmothetai worked together (Hansen, “Athenian nomothesia,” 356).

  • 25. For an account of the developments of nomothesia in the late fourth and early third centuries BCE, see Mirko Canevaro, “The Twilight of Nomothesia: Legislation in Early-Hellenistic Athens (322–301),” Dike 14 (2013c): 55–85.

  • 26. See Canevaro, “Twilight of Nomothesia,” 66–69.

  • 27. See Canevaro, “Twilight of Nomothesia,” 69–79.

  • 28. See P. J. Rhodes and D. M. Lewis, The Decrees of the Greek States (Oxford: Oxford University Press, 1997), 498–499. Julie Velissaropoulos-Karakostas, Droit grec d’Alexandre à Auguste: 323 av. J.-C.-14 ap. J.-C.: Personnes, biens, justice (Paris: de Boccard, 2011), I, 60–63, is too quick to assume that the mention of nomoi and psephismata can automatically be mapped into a distinction and hierarchy identical to that of 4th-century Athens.

  • 29. On the graphe paranomon outside Athens see Christian Habicht, “Judicial Control of the Legislature in Greek States,” Studi Ellenistici 20 (2008): 17–23.

  • 30. See for discussions of different procedures Rhodes and Lewis, Decrees of the Greek States, 497–499; and Velissaropoulos-Karakostas, Droit grec, I, 60–87.

  • 31. On the royal diagrammata see Velissaropoulos-Karakostas, Droit grec, I, 63–66; and Canevaro, “Twilight of Nomothesia,” 77–79 with further references.