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Nomothesia in fourth-century Athens

Published online by Cambridge University Press:  11 February 2009

P. J. Rhodes
P. J. Rhodes
Affiliation:
University of Durham
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Extract

There have been two recent attempts to disentangle the evidence for the procedures in fourth-century Athens for the enactment and revision of nomoi, by D. M. MacDowell and by M. H. Hansen. I have learned from both, but think that further progress can be made.

MacDowell distinguishes five separate measures:

(b) The Old Legislation Law, requiring action at a specified time, advance publicity for the new proposal, concurrent repeal of any existing law with which the new proposal conflicts, and a decision by nomothetae who are omomokotes, men who have sworn the dicastic oath <for the current year and are on the register of potential jurors>: this is described as a παλαι⋯ς νόμος, and as the law καθ' ὃν ἦσαν οἱ πρότεροι νομοθέαι.

(c) Replacing that c. 370, the New Legislation Law, no longer requiring action at a specified time, advance publicity, concurrent repeal, or that the nomothetae should be omomokotes: as a result of the change conflicting laws have been enacted, and for some time continuing to the mid 350s commissioners have had to be elected to sort out the conflicts.

(d) Still valid in the 350s, the Review Law, requiring an annual epicheirotonia of the laws in four subject divisions in the assembly on 11 Hecatombaeon (i), advance publicity for new proposals, and at the third assembly after 11 Hecatombaeon the appointment of nomothetae who are omomokotes to decide between the existing laws and the new proposals.

Type
Research Article
Information
The Classical Quarterly , Volume 35 , Issue 1 , May 1985 , pp. 55 - 60
Copyright
Copyright © The Classical Association 1985

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References

1 MacDowell, , JHS 95 (1975), 62–74CrossRefGoogle Scholar; Hansen, , C&M 32 (1971–1980), 87–104Google Scholar: I shall cite these articles by author's name only. I should like to thank Professor MacDowell for reading a draft of this article and helping me to improve it, though I have not converted him to my views, and the University of Durham for a grant from its Research Fund.

2 To avoid confusion, I omit letter a and use MacDowell's lettering.

3 Dem. 20. Lept. 89–99.

4 Quoted Dem. 24. Tim. 20–3. MacDowell 66 repeats the suggestion of Schöll, R., Sb. München (1886), 85Google Scholar, that the first statutory assembly of the year regularly met on 11 Hecatombaeon: according to Mikalson, J. D., The Sacred and Civil Calendar of the Athenian Year (Princeton U.P., 1975), 25–8, 182–93Google Scholar, there is no evidence for 5,9 or 10 Hecatombaeon, but 1–4 and 6–8 are ruled out as being festival days, while there is good evidence for assemblies on 11 Hecatombaeon and the 11th is a common assembly day in other months too. I think it is very likely that the first statutory assembly of the year did regularly meet on 11 Hecatombaeon; the third assembly after that, falling in the same prytany (§21), will have been the last statutory assembly of the first prytany (cf. Ath. Pol. 43.3). Since completing my typescript I have seen Hansen, M. H., GRBS 23 (1982), 331–50Google Scholar = The Athenian Ecclesia (Opuscula Graecolatina, 26. Copenhagen: Museum Tusculanum Press, 1983), 83–102Google Scholar. He agrees that the assembly on 11 Hecatombaeon was the first of the year and that the later assembly mentioned was the last of the first prytany, but he counts inclusively and supposes that in the 350s there were not four but three regular assemblies each prytany (argued in detail by Hansen, M. H. and Mitchel, F. W., SO 59 [1984], 13–19CrossRefGoogle Scholar: I am not persuaded).

5 Quoted Dem. 24. Tim. 33. I think it is possible that originally the application of the γραɸ⋯ νόμον μ⋯ ⋯πιτήδειον θεῖναι was more narrowly defined, and that one consequence of the Repeal Law was to extend it to nomoi which were illegal because they conflicted with existing nomoi.

6 Aesch. 3. Ctes. 38–40.

7 I accept from Dion. Hal. 724–5. Amm. 4 the dates of 355/4 and 353/2.

8 Op. cit. (n. 4), 111.

9 This is confirmed by the dates given in the prescripts of inscribed nomoi: MacDowell 63 (the law cited in his Postscript, p. 74, is not dated within the year 375/4; the beginning of the law published by Clinton, K., Hesp. 49 [1980], 258–88CrossRefGoogle Scholar, is not preserved).

10 Cf. MacDowell 65.

11 Cf. καταψηɸίσησθε, §164.

12 Cf. Hansen, , GRBS 18 (1977), 124Google Scholar = The Athenian Ecclesia, 104.

13 See Rhodes, P. J., Commentary on the Aristotelian Athenaion Politeia (O.U.P., 1981), ad locc.Google Scholar

14 E.g. M&L 65 = IG i3 61, 5 with 29.

15 Hansen 93–4 understands Lept. 99 as I do, and concludes that ‘we have no evidence of how [the nomothetae] voted’, but he then infers from the Repeal Law that the nomothetae voted by show of hands. I agree with him against MacDowell that on each issue two votes only were called for, those in favour of the existing law and those in favour of the new proposal (if there was only one new proposal).

16 Rhodes, op. cit. (n. 13), 732.

17 Hansen 93–4 with n. 5; cf. GRBS 18 (1977), 124Google Scholar = The Athenian Ecclesia, 104.

18 Quoted And. 1. Myst. 87; cf. Dem. 24. Tim. 59 and (without this clause) 23. Arist. 86, [Dem.] 46. Steph. 2. 12.

19 Cf. Dem. 24. Tim. 45, [Dem.] 59. Neaer. 89–90, and Hansen, , GRBS 17 (1976), 125–6Google Scholar = The Athenian Ecclesia, 11–12.

20 IG ii2 222, 41–6; 330, 15–23; vii 4254 = SIG 3 298, 35–41. Cf. Hansen, , GRBS 20 (1979), 39–43Google Scholar = The Athenian Ecclesia, 191–5, and on the principle that the merismos was fixed by nomos and could be changed only by nomos Rhodes, , The Athenian Boule (O.U.P., 1972), 50 n. 1, 101Google Scholar.

21 On the principle, that nomoi should be permanent and should apply equally to all citizens, and that decisions which fail to satisfy one or both of these requirements should be expressed as psephismata, and on the fact, that (with the major exception of decisions in foreign affairs, which even in the case of a treaty intended to last for ever were always expressed as psephismata) almost all Athenian decisions between 399 and 321 conform to the principle, see Hansen, , GRBS 20 (1979), 27–53Google Scholar = The Athenian Ecclesia, 179–205 with addenda 206. Hansen believes that the theoretical principle was itself embodied in the revised code of nomoi, but I think it more likely that the theoretical principle was taken for granted than explicitly stated, and that it was assumed that any new decision which would cancel, add to or modify one of the nomoi in the code must itself be a nomos, but that other decisions might take the form of psephismata. This will explain the exceptional nature of decisions in foreign affairs: there were none in the code, and so none needed to take the form of nomoi.

22 Cf. Cawkwell, G. L., Mnem. 4 15 (1962), 377–8CrossRefGoogle Scholar; the epigraphic evidence (n. 9, above) shows that it remained possible to enact nomoi at any time in the year.

23 On this point I agree with MacDowell.