ex non scripto ius venit, quod usus comprobavit. nam diuturni mores consensu utentium comprobati legem imitantur.
—Justinian, Institutes, 1.2.9
In many modern states a distinction is drawn between the constitution, or “fundamental law” as it is called in some countries, and the laws. Both the laws and the provisions of the constitution are upheld by the courts; both are sources of law. But the distinction has two salient features. First, the constitution has greater authority than the laws. Therefore, if a law is shown to contravene a provision of the constitution, it is declared invalid by a court. Second, the procedure for changing the constitution, whether by adding to it or by canceling some of its provisions, is slower and more difficult than the procedure for changing the laws.
In Athens in the fourth century a distinction was drawn between “laws” (nomoi) and “decrees” (psēphismata). Both laws and decrees were upheld by the courts. The oath sworn by judges (dikastai) began with the undertaking: “I will vote in accordance with the laws and the decrees of the people of Athens and of the council of five hundred.”1 The Athenian distinction had the same two salient features as the modern distinction. Laws had greater authority than decrees, and if a decree was shown to contravene a law or some laws, the decree was declared invalid by a court. The procedure for changing the laws, whether by adding to them or canceling some of them, was slower and more difficult than the procedure for passing or repealing decrees.
Prima facie the two distinctions are similar. This chapter will study Athenian law with a view to finding out whether the distinctions are the same or different. In this way it will try to discover what the Athenians understood by law. Section I will look at theoretical views expressed in Athens on the types of content proper for laws and decrees respectively. Section II will consider the codification of the laws carried out in 403–399. Section III will review the procedures in force in the middle of the fourth century. Section IV will try to trace the concepts of law and decree backwards before 403. Section V will draw conclusions.
A preliminary observation about terms is in order. The English word “law” is ambiguous. It can mean a particular measure which has been ratified, as when people say that the legislature has passed a new law determining postal rates. On the other hand, “law” can mean a body of law, as when one speaks of “the law of landlord and tenant,” “the Roman law of sale,” or, even more generally, “Hindu law.” Some languages have a separate word for law in the second sense (ius, Recht, droit). But since in any one community the sources of law (ius) are usually multiple, there is hardly ever a single word denoting all kinds of laws in the first sense (the Roman list of laws in this sense is especially long: leges, plebiscita, senatus consulta, edicta magistratuum, etc.). In fact, the ambiguity in the English word “law” does not often lead to misunderstanding, once it is recognized. Greater caution is needed in selecting English words for the two types of measures distinguished by the Athenians. In this chapter “laws” will be used for nomoi and “decrees” will be used for psēphismata, since it would be tedious to repeat the Greek words every time the things are mentioned. Thus for present purposes “law” can mean nomos or ius.
Aristotle and the author of the Pseudo-Platonic Definitions each distinguish the content proper for decrees from that proper for laws. The author of the Definitions (415b) says that a law is permanent, but a decree has only temporary validity. Aristotle in the Nicomachean Ethics (5.1137a31–1138a2) is more discursive. He distinguishes between two virtues: justice and equity. Whatever conforms to the laws is just. Yet the law, he continues, has to be stated in general terms, but every actual case is particular, not general. So apart from justice there is another virtue, equity, which can judge the particular case correctly. Likewise in the city, he adds, one requires not only laws but also decrees, and the latter regulate particular cases. In the Politics (4.1292a4–7) Aristotle discusses different forms of dēmokratia and distinguishes one in which supreme authority resides, not in the law, but in the vote of a majority. This comes about when decrees, as opposed to law, are supreme. He adds (1292a32–37) that the law ought to determine all general matters and the magistracies ought to determine particular matters; this condition alone amounts to constitutional government (politeia). So if dēmokratia is a form of constitutional government, a condition in which everything is determined by decrees is not even dēmokratia properly speaking.
It is possible to put these observations together in the light of an Athenian provision, mentioned by Andokides (1.87) and others, that there should be no law about a single person, as opposed to all Athenians, unless it were passed by a secret vote with a quorum of 6,000. This provision makes it possible to interpret Aristotle’s criterion of “particular” as referring to a named person or some named persons. One may then say that a topic for legislation was proper matter for a nomos if it was general and permanent, but it was proper matter for a decree if it was particular and permanent of if it was general but had only temporary validity or if it was particular and had only temporary validity.2
One can go further. In the fourth century new decrees were passed by a vote of the assembly of Athenian citizens, but new nomoi were ratified by a board of nomothetai. Because of this procedural difference, which will be studied in section III, it was possible to say which measures were psēphismata and which were nomoi. On the basis of known laws and decrees of the fourth century it has been argued that, once the distinct procedure for making laws had come into being, and except in the critical years of the final war against Philip II (340–338), the Athenians respected the distinction; that is, they did not make general rules of permanent validity in the form of decrees.3
Yet some hesitation may be in order. Neither the author of the Definitions nor Aristotle offers a discursive or systematic inquiry into the difference between laws and decrees. The former’s remark is brief. In the passage in the Ethics Aristotle focuses his attention, not on laws and decrees, but on justice and equity, and he only mentions the political distinction incidentally to illustrate his point about the virtues. In the passage in the Politics the aim of his remarks is, not to specify the proper difference in content between laws and decrees, but to criticize a condition in which the vote of a majority overrides the laws. Neither author offers the type of discussion which could be expected if an orator were to expound a matter of law to an Athenian court.
To say this is not to deny all value to the remarks of the two authors. In view of Aristotle’s habitual procedure in his ethical treatises, one may expect to find common Greek opinions presented in his writings, and sometimes one finds them discussed in an uncommon way. Since the Athenians in the fourth century had different procedures for passing decrees and for making laws, it should be presumed that they thought different types of content proper to measures of the two kinds. Aristotle employed the terms “particular” and “general” to specify the two types of content, and since he did so in a relatively unreflective way, he probably reproduces general opinion. The difference between “general” and “particular” is somewhat vague, though not indefinitely vague. The author of the Definitions seized on a temporal criterion in an effort to make the distinction more precise. He may well draw on discussions conducted in philosophical schools. But Aristotle’s distinction between the general and the particular, together with its limited vagueness, is the best available clue to common Athenian opinion on the proper content for laws and decrees.
In 403/2, after the revolution of the Thirty had been reversed, the Athenians set about revising their laws. The task had been begun as early as 410 (page 45 below) but had not been completed. Andokides (1.83–84) preserves a decree proposed by Teisamenos in 403/2 for continuing and completing the revision. The decree opens in a conservative spirit. The Athenians are to observe the nomoi of Solon and the thesmoi of Drakon, but “where additional laws are needed,” the decree institutes a procedure for drafting and ratifying them. That is, it is assumed that the Athenians will continue to observe their traditional laws with some additions. It is impossible to say how far this assumption departed from reality, since only small parts of the code of Solon and of the code of 403/2 have been preserved.
The decree of Teisamenos speaks of two boards of lawgivers (nomothetai) as already existing. Evidently this was one of several decrees bringing about the revision of the laws. The one board of lawgivers is said by Teisamenos to have been chosen by the council. They are to propose new laws, where needed, and to display the proposals on whitened boards in front of the statues of the heroes of the ten phylai. The number of lawgivers forming this board is not stated. The other board of lawgivers numbered 500. They are said to have been chosen by their fellow-demesmen. They are to take an oath. Together with the council, they are to test and ratify the laws. The two boards may be distinguished as “drafters” and “ratifiers.”
It is not known how the council was to collaborate with the “ratifiers.” Likewise in the later procedure of nomothesia, practiced in the middle of the fourth century, the council was expected to collaborate with each board of lawgivers, but the manner of collaboration can only be conjectured. Another uncertainty concerns the length of time expected for the revision of the laws. The decree of Teisamenos says that the “drafters” are to hand over their proposals to the officers within the present month. But it also authorizes any private citizen to bring his own proposals for laws to the council. The speech of Lysias Against Nikomachos (30) says that the accused served as “recorder of laws” for four years. If Nikomachos held a clerical and subordinate position in the revision of the laws, it follows that the work lasted from 403/2 into 400/399 by inclusive reckoning.4 That is, the revision was completed in 400/399. It may have taken longer than was at first expected. The consequent code could well be called “the code of 403–399,” although the name “the code of 403/2” has sometimes been used and is convenient. The designation “code of Nikomachos” has also been employed, but it does too much honor to a humble and perhaps unfortunate person.
The most striking feature of the decree of Teisamenos concerns the 500 lawgivers here called “ratifiers.” The striking feature is that they have authority under the decree to ratify laws. The measures which were to constitute the new code were not to be submitted to the assembly of citizens for approval but were to derive validity from the decision of the “ratifiers.” In this respect the “lawgiver-ratifiers” of 403–399 resemble the boards of lawgivers known in the middle of the fourth century. They also resemble the later boards in number. Like dikastēria, the later boards were multiples of 500 with one member added to prevent a tie. In another respect the “ratifiers” of 403–399 differ from the later boards of lawgivers. The latter, like dikastēria, were chosen by lot from among citizens available for service as dikastai, but the decree of Teisamenos speaks of the “ratifiers” as chosen by their fellow-demesmen. So it does not seem possible to associate them with that body of citizens which exercised judicial power.
The decree of Teisamenos provides finally that the laws, when ratified, shall be inscribed on the wall “so that anyone who wishes may inspect them.” The wall was a freestanding wall, or rather some freestanding walls, in the stoa basileios. Excavation has recovered a small part of it.5 Eleven fragments have been found and differences of thickness show that there were (at least) three walls. The principal side of the two thicker walls bore a calendar of sacrifices. The fragments provide twenty-six passages of continuous writing. One of these has provisions about the trierarchy. The other twenty-five are provisions about cults. Since the fragments amount to so small a part of the code, they may not be a representative sample. Yet the prominence given to sacred law is remarkable.
After discussing the decree of Teisamenos, Andokides (1.85–89) gives five “supplementary” measures, as they will be called here. They were passed in connection with the revision of the laws. They all contribute to determining what constitutes valid law and so they require attention, although there is no need to keep to the order in which Andokides mentions them. One of the measures orders that judgments in lawsuits and recommendations accepted through arbitration shall be valid, if they were issued while the city had dēmokratia. As will be seen later (chapter 5), when dēmokratia had substantial meaning, it derived its meaning from contrast with something else. In the context of 403 and the next few years there was no doubt of the contrast. The “supplementary” measure declared invalid the results of lawsuits and of arbitration conducted under the rule of the Thirty. Indeed Demosthenes (24.56), after noting this “supplementary” measure, quotes also a law which explicitly declared invalid all acts and judgments made under the Thirty.
Another of the “supplementary” measures declared that nomoi made in or after 403/2 were to be observed. By implication this measure rescinded any rules made before 403/2, unless they were incorporated into the new code. It illustrates the legal sophistication of the Athenians. Effective administration of justice requires that the system of law be closed at some point in the past; otherwise parties can argue indefinitely by citing principles or practices of ever greater antiquity. Even so muddled a system as the English Common Law recognizes a limit of legal memory in the year A.D. 1189.
The most puzzling of the “supplementary” measures provided that no nomos should be made about a specific person, instead of about all Athenians, unless it were passed by a secret vote with a quorum of 6,000 citizens. A law about a specific person can best be called by the Roman name of privilegium. The principle restricting privilegia was not new to the Athenians, for it had been respected in the procedure of ostracism. A quorum of 6,000 was required for a valid ostracism,6 and the voting with potsherds was secret. But a difficulty arises because after 403/2 the assembly often voted honors to named persons. Decrees honoring aliens may not have conflicted with the restriction on privilegia. For the “supplementary” measure applied to any law about a specific person instead of about all Athenians; so it may have been intended to restrict measures about Athenians but not about aliens. But in and after the fourth century honors were voted from time to time to Athenian statesmen.7 It is difficult to imagine that as many as 6,000 citizens took part in the voting on all such occasions.8 When the decree of Ktesiphon granted a crown to Demosthenes, Aischines challenged it in court. His legal arguments (3.9–48) were that Demosthenes had not rendered his accounts at the time of the decree and that it ordered announcement of the award in the wrong place; he did not argue that the measure was an invalid privilegium. Again, when the decree of Aristokrates granted special protection to Charidemos, Demosthenes (23.22–99) argued that the decree was illegal because it subverted the homicide laws; Charidemos had received Athenian citizenship (23.145), but in attacking the decree Demosthenes did not ask whether a quorum of 6,000 had been present at the vote. Possibly the problem should be solved by supposing that the “supplementary” measure was intended solely to restrict those privilegia which, like ostracism, inflicted a disability, not to restrain the Athenians from honoring men who had done the state some service.
Another of the “supplementary” measures forbade Athenian officers to observe any unwritten law. A few texts suggest that previously it had sometimes been possible to persuade an Athenian audience by alluding to unwritten laws. Perikles in the Funeral Speech boasts that the Athenians respect the laws “and especially those of them which are in force for the benefit of the victims of injustice and those which, being unwritten, bring acknowledged disgrace.”9 The remark is vague, and there is more suggestive force in an assertion made by one of the prosecutors of Andokides, when the latter was on trial for impiety in 400/399 (the occasion when Andokides spoke the speech which quotes the decree of Teisamenos and the “supplementary” measures). The prosecutor says:
Yet they say that Perikles once gave you this advice about people guilty of impiety, that you should observe not only the written laws about them but also the unwritten laws, on which the interpretive science of the Eumolpidai draws, laws which no one has ever yet had the authority to rescind or the audacity to challenge, and people do not even know who made them. They say that Perikles thought that in this way amends would be made not only to men but even to the gods.10
The view attributed to Perikles is sinister. The speaker does not insist on its authenticity. Even if authentic, it was not necessarily uttered in a trial. Possibly it figured in political debate about responding to the allegedly impious acts of the Megarians in about 432.11 Again, even if the remark as reported by the prosecutor in 400/399 has an authentic core, it may have become distorted in oral transmission through some thirty years. Yet at least the assertion of the prosecutor suggests that before 403 one could sometimes try to convince an Athenian audience by invoking unwritten laws. The “supplementary” measure put an end to that. It tried to give the Athenians the benefits of a positivist system of law, a system, that is, in which one can know in advance what the law requires.12
The remaining one of the “supplementary” measures is the most important for the present inquiry. It stated: “No decree of the council or of the people shall have greater authority than a nomos.”13 This measure elevated laws above decrees. But its negative formulation shows juristic sophistication. For in the actual administration of justice the question of the relative authority of laws and decrees could only arise if a decree was alleged to contravene a law. The measure is the origin of the view, expressed by orators in the fourth century, that decrees should only be proposed within a framework provided by the laws.14
It will be argued below (section IV) that even before 403 the Athenians gave some recognition, though in imperfect form, to the principle that laws had higher authority than decrees. The codification of the law in 403–399, together with the “supplementary” measures, not only stated that principle but also made its enforcement feasible. By 400/399 the Athenians had achieved an up-to-date code of law together with rules for determining what was valid law. Yet one thing may have been lacking. The Athenian concept of law, as apparent from the codification, was static. The laws were drawn up in definitive form and made available for anyone to read, on the assumption that the code was final. In consequence of the mutability of human affairs, attempts to give institutions final form cannot succeed. The work of codification called for a procedure of amendment. Such a procedure, now conveniently called fourth-century nomothesia, was in existence by 382/81 and will be studied in section III. That procedure had not been invented before the decree of Teisamenos was passed, for, as noted above, the modes of choosing “lawgiver-ratifiers” under that decree and lawgivers in the later procedure differed. Was the fourth-century procedure of nomothesia devised in the course of the codification of 403–399?
Some utterances in the speeches delivered at the trial of Andokides in 400/399 suggest that it was not. One of the prosecutors said that some years previously Andokides had come from exile to Athens to seek permission for permanent return, “but you drove him away from the city, confirming for the gods the laws which you had voted.”15 This passage is the only occurrence known to the present writer of the phrase νόμον ψηφίζεσϑαι. “To make laws” is in Attic νόμον τίϑεσϑαι, νόμον δοϰιμάζειν or νόμον γϱάφειν.16 But in the time of Perikles the view was at least known that any measure passed by a majority in the assembly of citizens was a nomos.17 That view was tenable before 403, for although the current laws were believed to be the laws of Solon, the only way of making new measures was by vote of the assembly. The older view ceased to be tenable when the fourth-century procedure of nomothesia was introduced; for in consequence it was now possible to make new rules not only by vote of the assembly but also by that procedure. Thus the phrase chosen by the prosecutor of Andokides, “the laws which you had voted,” suggests that the fourth-century procedure of nomothesia had not yet been instituted.
The same conclusion follows with somewhat greater force from the wording of one of the “supplementary” measures quoted by Andokides. The restriction on privilegia said that no such nomos should be passed except by secret vote with a quorum of 6,000. Since this measure noted the possibility of a meeting of 6,000 Athenians, the procedure envisaged was probably the voting of a measure by the public assembly, not the nomothesia of the fourth century.18 Yet the measure spoke of a privilegium as a nomos; in this it conformed to the older view, which could recognize decisions voted by the assembly as nomoi, and thus it militates against the hypothesis that the other procedure, that of fourth-century nomothesia, had already been introduced.
In the fourth century nomoi and psēphismata were the two sources of law. The procedure for making psēphismata is well known.19 An item of business had to be discussed in the council of five hundred, which drew up a probouleuma, before it was sent to the assembly of citizens for final decision. This provision did not restrict the freedom of the assembly, which could even instruct the council to bring in a probouleuma on a specific topic. The probouleuma could be a recommendation for action or merely a statement of a problem. The assembly could accept or reject a recommendation of the council. Even if it accepted the recommendation, it could add amendments moved by individual members of the assembly.
The procedure of nomothesia, the procedure for making nomoi or rather amending the code of 403–399, is attested less plentifully but adequately.20 It is known from several passages of Demosthenes and Aischines,21 from some inscribed nomoi,22 and from some inscribed decrees which include a provision that a measure be presented to a board of nomothetai for action.23 On the eleventh day of the first prytany of each year an assembly of citizens was held and the laws were presented to it in four categories, namely:
1. laws concerning the council,
2. common laws,
3. laws bearing on the nine archons,
4. laws concerning the other officers.
It is to be noted that the laws were classiied, as far as possible, according to the officers responsible for upholding them, for the council was considered an office,24 and the second category was evidently one of “miscellaneous” laws, as they might be called today. One may presume that the laws had been classified into the same four categories in the codification of 403–399. To return to the eleventh day of the first prytany, the assembly voted on each of the four categories of laws in turn, to say whether or not the laws of that category were satisfactory. If it decided that the laws of any category were not satisfactory, three consequences followed. First, the assembly elected five men to defend the existing laws. Second, any citizen who wished to propose new laws was to publish his proposal on whitened boards in front of the statues of the heroes of the ten phylai. He was to do this before the third of the three meetings of the assembly held in the first prytany. Third, the prytaneis were required to include the item “lawgivers” (nomothetai) on the agenda of that meeting. When that third meeting gathered, it provided for sessions of lawgivers proportional in duration to the number of proposals and it determined whence the lawgivers were to draw payment.25
Lawgivers were drawn from among those who had sworn the dikastic oath, and the only board of lawgivers whose size is known numbered 1,001.26 Since the “lawgiver-ratifiers” of the decree of Teisamenos numbered 500, it should be supposed that each body of lawgivers was a multiple of 500, with one man added to prevent a tie. Consequently, a session of lawgivers was much like a session of a dikastērion. There was a difference in procedure. Dikastai voted by casting counters, but lawgivers voted by a show of hands.27 Another procedural matter is an unsolved puzzle. From 379/78 or from an earlier date the officers presiding at meetings of the assembly were nine proedroi, drawn from councillors of the ten phylai except the one currently supplying prytaneis.28 Lawgivers too met under the presidency of officers called proedroi.29 Were the proedroi of the lawgivers the same as the proedroi of the assembly? Opinions on this have varied.30 If proedroi in the two functions were the same, that would give meaning to the attested principle that the council should collaborate in the work of lawgiving.31
The most significant feature of the procedure of nomothesia, described above, is that final authority to choose between the current law and the alternative proposal was exercised, not by the assembly, but by the board of nomothetai. This is shown, both by a statement in a law preserved in the manuscripts of Demosthenes (24.33), and by the formula of ratification in the inscribed texts of laws; “resolved by the nomothetai” in those texts32 is comparable to the phrase, “resolved by the demos,” in decrees. It does not follow that the lawgivers exercised supreme and comprehensive authority over the Athenian state. They lacked the power of initiative. They could only come into being and into session at the behest of the assembly, and they could only choose among proposals presented to them; they could not themselves devise proposals. In the fully developed conditions of the fourth century the Athenians refused to entrust supreme and comprehensive authority to any one organ. It has been argued plausibly (by Hansen, note 24 above) that they had a concept of separation of powers: they distinguished between the power of initiative and the power of decision, and they entrusted these powers to bodies of different kinds.
Several more facts can be learned from the nomoi known from their inscribed texts. Two of these are far better preserved than most extant inscriptions. The earlier of them (SEG. 26.72) provides that genuine Attic coins of silver shall be accepted in transactions; two assayers in the status of public slaves are accordingly to be on duty, one in the city and one in the Peiraieus. The inscription bears the name of the archon and shows that the procedure of nomothesia was employed as early as 375/74. The other well-preserved inscription (SEG. 12.87) gives a law of 337/36. It was passed in the ninth prytany of the year and thus shows that nomothesia was not restricted to the early part of the year. It inflicts the penalties of hereditary atimia and confiscation on any member of the Areopagite council who goes up to the Areopagos or takes his seat in the council after the dēmokratia has been overthrown. The law would appear to be unenforceable (and therefore bad). One may suspect that it was the product of factional conflict.33 One can only conjecture how long the procedure of nomothesia continued to be employed. The latest attestation (IG. VII, 4254) belongs to 329/28. Evidence is lacking for or against its continuation into the period of severe Macedonian ascendancy. At least the motives which led to its creation early in the fourth century were not diminished, as far as one can see, by the fact that Macedonian rulers made themselves felt in Greek affairs.
Inscribed decrees, which provide that measures be submitted to nomothetai for ratification (note 23 above), illustrate a further point. The measures are decisions to spend small sums of money, for example, to honor a man with a crown in a value of ten drachmas. One may wonder why expenditure on such a small scale required authorization by a procedure as cumbersome as nomothesia. The explanation was discerned by Kahrstedt long ago.34 Many expenses, especially for sacrifices, were required by the laws codified in 403–399, and therefore even a small change in the annual budget could amount to a departure from the laws and require authorization by lawgivers. This consideration suggests that a board of lawgivers could be brought into session at any time of the year. Indeed lawgivers are attested for the ninth prytany, as noted in the previous paragraph, and probably (by IG. II2, 333) for Skirophorion.
Since there were two procedures for passing measures in the fourth century, namely, by vote of the assembly for a decree and by nomothesia for a law, there were two judicial procedures against their abuse. One, the graphē paranomōn, was the remedy to be employed against a decree which was alleged to conflict with the laws. It is well known from many political battles, such as the one of 330/29 between Aischines (3) and Demosthenes (18). It existed already in the late fifth century and will therefore require attention in section IV. The other judicial procedure was the graphē nomon mē epitēdeion theinai and was available against abuse of nomothesia.35 It is first attested for the year 382/81, when a certain Eudemos was condemned at a trial of this kind and executed.36 This occurrence shows that the legislative procedure of nomothesia existed by 382/81. Only two of the extant speeches (Demosthenes 20 and 24) were delivered in trials on the charge nomon mē epitēdeion theinai. Each is a speech for the prosecution and each tries to show that the law proposed by the accused was “inexpedient” (mē epitēdeion). Apart from the vague notion of inexpedience, one may wonder what specific defects in a new nomos laid it open to indictment. On this there is only one indication, but that is important. If someone proposed a new law through nomothesia, and if the new law conflicted with a current law, and if the proposer of the new law did not include an explicit clause repealing the current law, the proposer could be prosecuted under the graphē nomon mē epitēdeion theinai37. If the prosecution proved its case, the newly ratified law was canceled and the old law remained in force.
In this respect Athenian rules of legislation differed from those of many other systems of law. One may contrast early Roman law. The Romans said that according to the Twelve Tables whatever the Roman people had last ordered was to be valid.38 The relation between Athenian decrees and the code of 403–399 contrasts with that between the leges voted in the Roman comitia and the Twelve Tables. It is of some interest that the Romans saw the need to state explicitly the rule that the latest decision of the people should be valid. Possibly the authors of the Twelve Tables were acquainted with a Greek system of law which accepted the Athenian view of the relation between the code and measures voted by the assembled citizens. The rule that the latest act of the sovereign power overrides that power’s earlier acts, even if the latter are not explicitly repealed, is part of the modern notion of sovereignty. Since the Athenians did not accept that rule, their concept of law differed from modern concepts of law.
In general the rules which the Athenians upheld in the fourth century amount to a remarkably sophisticated system. In 403–399 they had revised the code to meet current conditions. They ruled that no decree should override a law, and in the graphē paranomōn they provided a means to enforce this rule. Sophistication is especially apparent in the recognition, achieved by 382/81, that even within their static concept of law there was need for a regular procedure to amend the code. Three safeguards attached to that procedure are conservative in spirit. First, when the assembly voted that any of the four categories of laws needed to be revised, it also elected five men to defend the current laws. Second, even after a new law had been passed by a board of lawgivers, it could be challenged as “inexpedient” before a dikastērion. The third safeguard was the rule that the old law overrode the newly passed law, if the latter did not repeal the old law explicitly. The system as a whole attempted to institutionalize important features of the rule of law, namely, the beliefs that the law should be the same for everyone, whenever a particular case may arise, and that the law should be ascertainable in advance.
The steps taken in 403/2 were not the first attempt to revise the laws of the Athenians. In the fall of 411 the citizens deposed the revolutionary council of four hundred. Thucydides (8.97.2) adds: “Later frequent meetings of the assembly were held, and in these they voted nomothetai and other measures concerning the constitution.” Several reasons can be guessed why the Athenians recognized at that point the need to revise the laws. The disturbances of 411 had raised questions about the constitution. Financial shortages since the Sicilian disaster of 413 made it temporarily impossible to provide payment for administrative officers. Moreover, since the codification of the laws by Solon long before, a mass of miscellaneous decrees had accumulated. Possibly revision of the laws had been discussed or even begun before the troubles of 411.
In consequence of the activities and misfortunes of Nikomachos a little more is known about the work of revising the laws in the years following 411. Nikomachos served as “recorder of laws,” presumably with colleagues, in two periods. His earlier term ended in 404, when the Athenians surrendered to the Peloponnesians, and the prosecutor at the trial of Nikomachos later said that he had kept himself in office for six years.39 The prosecutor was more likely to exaggerate the term than to minimize it. It follows that Nikomachos took office sometime in 410. Furthermore, the prosecutor said that Nikomachos “made his office last six years instead of four months.” Even if allowance is made for misrepresentation, the prosecutor must have found a reference to an expected period of four months in the decision which brought about the appointment of Nikomachos. That is, in 410 it was expected that some stage in the revision of the laws, though not necessarily the whole task, would be completed in four months. In fact, the work had not been finished at the end of the Peloponnesian War, and although the Thirty were commissioned to make laws, the work was continued and completed under the decree of Teisamenos. It is credible that in 410 the Athenians underestimated gravely the length of time which revision of the laws would take. One monument to the work of the ensuing years survives. In 409/8 the “recorders of the laws,” as instructed by a decree of the assembly, procured from the king-archon “the law of Drakon on homicide” and together with the secretary of the council they had it reinscribed on stone.40 The provisions thus inscribed did not need to be ratified anew; they were valid simply because they were “the law of Drakon on homicide.”
The work of revising the laws may have made the Athenians think about the nature of law and the source of its authority. Fifth-century utterances on this question point in more than one direction. Xenophon (Memorabilia 1.2.42) gives an imaginary dialogue between Perikles and Alkibiades. In reply to a question Perikles says: “All the measures, which the assembled multitude has scrutinized and written to say what should be done and what should not be done, are nomoi.” The view here expressed is that the vote of a majority in the assembly of citizens is the sole source of law; no distinction is drawn, as was drawn in the fourth century, between psēphismata and nomoi. But a dialogue composed by Xenophon does not necessarily reflect the principles observed in Athenian public life. It merely shows that the view stated was one of the views, but not necessarily the only one, current among the Athenians. It is likewise well known that sophists discussed questions about political authority. They belonged in a tradition which can be traced back to Hesiod’s speculations on justice.41 Possibly their ideas influenced the Athenians in the late fifth century, but no specific instances of sophistic influence on Athenian law can be traced.
Some remarks made by Andokides (1.95–96) at his trial in 400/399 are more suggestive. Attacking Epichares, one of the prosecutors, he mentions a measure under which, he says, Epichares could be killed with impunity if the measure were still in force, but it is no longer in force, because only laws incorporated into the code of 403/2 or made since are valid (1.99). Interest attaches here to the words which Andokides employs for the measure mentioned. First he calls it a nomos. Then he calls it a nomos of Solon. But when he finally has it read out to the court, it proves to be a decree of the council and the assembly, dated by the secretary’s name to 410/9. At first sight the choice of words by Andokides seems to agree with the view attributed by Xenophon to Perikles; for Andokides, as for Perikles, any measure voted by the assembled citizens was nomos. But this interpretation does not do justice to his description of the decree of 410/9 as a nomos of Solon. Surely when he called the decree a nomos and a nomos of Solon, he was trying to give it greater dignity than belonged to a mere decree. Thus his language may suggest, however obscurely, that nomoi were superior to psēphismata.
A rather similar inference might be drawn, more tentatively, from a choral passage (352–71) in the Thesmophoriazousai of Aristophanes, a play produced in 411. After calling down blessings on the city and its people, the chorus lists the women who commit impiety and harm the city. They are those who commit deceit and violate oaths for profit, those who seek to alter psēphismata and nomos (361), those who betray secrets to the enemies or bring the Medes against the land. A hilarious song sung by a comic chorus is not the right place to seek an answer to the question whether the Athenians of the fifth century attributed the same authority to decrees as to laws. But since the other offenders in the list are described in stock phrases, it is likely that “psēphismata and nomos” (or some variant, such as “nomoi and psēphismata”, attested for the fourth century in the dikastic oath) was already a current phrase. If so, the fact that not one of the two words but both were uttered together may indicate that some distinction, however imperfect, was already known between psēphismata and nomoi.
More can be learned from a story told by Herodotos (1.29). Solon, he says, wrote laws for the Athenians at their bidding and made them swear to observe these for ten years. Then he went away on his travels for ten years, so that he would not be persuaded to alter the laws himself. The story may have been embellished in the transmission. Ten years is a long and expensive duration for travels, and if the length of the travels should be doubted, the ten years of validity for the oath may also be dubious. But at least part of the story is true. Solon certainly wrote laws for the Athenians. It is credible that he did so at their bidding; that is, he was commissioned to write laws by a resolution of the assembly. If so much of the tradition is acceptable, there is no good reason to reject the story that the Athenians swore to observe the laws of Solon. The story of an oath has an important implication.42 If the laws of Solon derived their authority from an oath sworn by all the Athenians, they did not derive their authority from the vote of a majority in the assembly. Such a vote would have been superfluous and pointless. Indeed it is not self-evident that the whole community is bound by the vote of a majority, unless a law saying so has previously been brought into effect, whether by oath or otherwise. It was in accordance with Greek custom for an oath to be taken when a major reordering of a city was carried out.43 The function attributed to Solon in Herodotos’s story is rather like that of nomothetai in the fourth century. In both cases the lawgiver or lawgivers are commissioned to act by a resolution of the assembly; that is, the assembled citizens exercise initiative. In both cases the decision which ratifies measures is taken by the lawgiver(s).
Even if Herodotos’s story about Solon’s legislation is inaccurate as history of the time of Solon, it is what the Athenians believed in the time of Herodotos. Therefore it reflects the opinion held by the contemporaries of Herodotos on the authority of the laws. To the modern mind that opinion is somewhat unsatisfactory. The question of the nature of law and of the source of its authority is often debated.44 The Athenians who told Herodotos their story of Solon refused to face the question. They said that they had sworn to obey the laws of Solon, but the oath had only bound them for ten years. They continued to observe the laws of Solon in Herodotos’s time, or so they believed, but they did not give any reason for the continued observance. Perhaps one can do justice to their view by saying that they observed the laws of Solon because they were the laws of Solon, or that they observed the laws because they were the laws. A community can function, with efficiency and indeed justice, without inquiring into the source whence its laws derive their authority.
One more feature in Herodotos’s story of Solon deserves notice. The laws of Solon are called nomoi in that story, as they were regularly in classical Athenian literature. The decree of Teisamenos (page 35 above) speaks of the nomoi of Solon and the thesmoi of Drakon. But Solon himself called his laws thesmoi.45 Development can be traced in the meaning of nomos. It could mean “custom,” which may have been its original sense. In the administration of fifth-century Athens and probably already in the time of Kleisthenes,46 it meant “statute,” as is clear from the passages discussed above in this section. In Athenian administration of the fourth century nomos was the word for any provision of the code of 403–399 or of the amendments to that code.
The graphē paranomōn throws further light on the view which Athenians held in the late fifth century about the nature and authority of law. Moreover, it promises to throw decisive light on that topic, since it is not a mere opinion expressed by some Athenians but a feature of public law. It is first attested for 415, when it was employed successfully against a decree which the council had passed.47 In 411 the revolutionaries persuaded the assembly to suspend the graphē paranomōn as a first step toward further changes.48 In 406 the council passed a probouleuma moved by Kallixenos and recommending that the assembly should take only one vote on the question whether to inflict the death penalty on the eight generals who had failed to collect the corpses after the battle of Arginousai. When this recommendation was brought before the assembly, Euryptolemos and other opponents threatened to indict Kallixenos by graphē paranomōn, but they were intimidated by the shouts of the crowd and desisted. Euryptolemos still urged unsuccessfully the employment of a different procedure, such as one laid down in the decree of a certain Kannonos, so that each of the accused generals should be tried separately.49
From these occurrences it is clear that the graphē paranomōn was an established part of Athenian procedural law well before 403/2. How old it was can only be conjectured.50 So a problem arises. The body of law current in Athens in the late fifth century included not only laws which Solon had written on axones long before but also a great multitude of decrees. If a newly passed decree contravened an earlier decree and was accordingly indicted by way of graphē paranomōn, how could one tell which of the two decrees had higher authority and was to be dignified with the title of nomos? A possible solution to this problem would say that the nomoi of the late fifth century comprised both the laws of Solon and some, but not all, among current decrees. But this solution would only be tenable if there had been a criterion recognizable in the late fifth century for determining which decrees were nomoi. There is no trace of any such thing.
A more attractive solution may be suggested by contrast with the Roman principle that whatever the people had last ordered was valid (page 44 above). The modern student may be inclined to take this principle for granted, since he is familiar with the notion of sovereignty. But in the fourth century the Athenians did not accept this principle in relation to laws. They held, on the contrary, that a new law should be declared invalid if it conflicted with an older law which it did not explicitly repeal. If the Athenians held the same view about decrees in the fifth century, perhaps the puzzle arising from the graphē paranomōn can be solved. That is, a new decree could be declared invalid by judicial process, if it conflicted with an older decree which it did not explicitly repeal. But this solution does not do justice to the controversy of 406. Euryptolemos threatened to invoke the graphē paranomōn against the new decree of Kallixenos and urged the Athenians to adopt a different procedure, such as that laid down by the decree of Kannonos. If the solution here considered were right, those who favored the decree of Kallixenos could have escaped the threat of Euryptolemos by inserting into that decree a clause explicitly repealing or suspending the decree of Kannonos. Instead they had recourse to intimidation.
It is better to recognize in the problem an anomaly of fifth-century law. On the one hand, the Athenians had a concept of law as a set of permanent rules capable of serving as a framework within which resolutions could be passed by a majority in the assembly; so much is implied by the existence of the graphē paranomōn. On the other hand, the assembly was in the habit of passing resolutions without regard to any supposed limitations. The work of codification in 410–399 was required, not only because many and multifarious decrees had been passed, but also because the Athenians needed to clarify their concept of law and in particular to distinguish between rules of greater and of lesser authority. By 399 they had accomplished the task and its achievement was summed up in the “supplementary” measure saying that no decree should have greater authority than a nomos (page 39 above). But in reaching this achievement the Athenians developed ideas of which the germs had been present in their system of law ever since Solon first codified it.
One of the commonplaces of Greek political rhetoric was that one ought not often to change the laws.51 This principle might be defended on grounds not only of prudence but also of fairness. If the law is to be the same for everyone, it ought to be the same, not only in the whole territory where it can be upheld, but also as long as the public authority upholding it continues to exist. This consideration of justice explains why the classical Athenians liked to suppose that their laws had been drawn up long ago. After the code was revised in 403–399, they did not refer to it as “the laws from the archonship of Eukleides” or by any designation that alluded to the revision. Instead they continued to call their laws “the laws of Solon.”
The development of legislative procedures and safeguards, surveyed in the preceding sections of this chapter, reveals a protracted and careful series of attempts to bring about the rule of law, that is, to ensure that the law should be the same for everyone. The concept of law current among the Athenians was somewhat different from the modern concept. The difference will become clearer if one returns to the question raised at the beginning of this chapter: was the Athenian distinction between laws and decrees the same as the modern distinction between provisions of a constitution and laws, or different? The two similarities specified were procedural; they concerned the means to invalidate measures of lesser authority and to amend provisions of greater authority. Two differences of substance, between the Athenian distinction and the modern distinction, call for note.
First, the Athenians thought that different kinds of material were proper for laws and decrees, even though they may not have pursued the difference to a clear contrast. Aristotle tried to formulate the difference by saying that laws are general, but decrees regulate particular occurrences. Recognition of a difference in proper content accounts for the precept that decrees ought only to be proposed within the framework set by the laws (page 39 above). Do modern states recognize a difference in the content proper for a constitution and for laws?
The Constitution of the United States, as an example of a modern constitution, does not say what kind of material it should comprise. Possibly one could gain clarification by invoking Hart’s distinction (note 44 above, 77–96, especially 78–79) between “primary” and “secondary” rules; “primary rules” say what one is required to do, and “secondary rules” say how to make, extinguish, or modify “primary rules” or how to determine their incidence or control their operations. Perhaps, then, “primary rules” should be embodied in the laws and “secondary rules” are proper material for a constitution. Indeed the original Constitution of the United States, as distinct from the Amendments, consists mostly of “secondary rules.” But many of the Amendments state “primary rules.” They have equal authority with the original Constitution, and one cannot challenge them on the grounds that their content ought to be embodied in laws instead of in constitutional amendments. Moreover, other nations have adopted constitutions, which are younger than that of the United States. Constitutions have tended to grow longer as time passed. Each constitution, when adopted, has comprised rules which its authors in their time believed important, and the consequences have sometimes been embarrassing a little later. For example, the Fundamental Law of the Federal Republic of Germany includes an Article (12) on free choice of occupation, and this had to be amended in 1956 to provide for obligatory military service.
There can be no doubt that each constitution, when adopted, has contained the material believed important at the time. This criterion of importance as perceived in the historical circumstances has alone determined the inclusion of material in each constitution. There has been no attempt to recognize and follow a permanent principle, comparable to the Athenian distinction between general rules proper for laws and particular applications proper for decrees.
The other difference between the Athenian and the modern distinctions leads further toward recognizing the Athenian concept of law in its distinctive character. The classical Athenians believed that their laws had been issued by Solon long before, and although in the fourth century they instituted a regular procedure of amendment, the procedure was weighted against innovation, since concern for evenhanded justice, as understood by the Athenians, made them reluctant to change the laws. Constitutionally governed states of the present day have a legislature, and one of the primary tasks of the legislature is to make laws (in the Athenian sense of general rules). Statute-law is conceived today primarily as expressing the will of the legislator. This belief springs in part from ideas developed by political theorists, who drew in turn on the Roman notion that government derives its authority from the consent of the governed. The concept of consent and the ideas of the theorists might be subjected to critical scrutiny and perhaps be found wanting. But the modern notion of statute-law as expressing the will of the legislator has a consequence so clear as to stand up to all scrutiny. If statute-law expresses the will of the legislator, it can be changed when the legislator, however constituted, changes his mind. For modern man law is something made and so it can be unmade. For the Athenians law was something already there. A law is a law is a law.