Were 4th century nomothetai selected by lot? Mirko Canevaro responds

By Mirko Canevaro

[This post is a response to a post by Keith Sutherland and to the discussion that followed in the comments thread.]

Dear all,

Thank you very much for your interest in my work! I’m afraid I’ve come here after too many messages, and although I’ve skimmed through all of this, it seems impractical to reply to everyone. But I hope by replying to the first three questions posed by Keith, I’ll offer some clarification.

Given that your claim (from the perspective of the sortinistas on this forum) is analogous to Holocaust denial, have I misunderstood you?

You haven’t — your presentation is basically accurate. I see that some find it strange that the same body would just be relabelled — yes, but not unparalleled. We have even an example of a city Assembly (in Halaisa, Sicily) that for particular purposes relabels itself (with the same numbers and procedures) as the Association of Priests of Apollo (and just yesterday I attended a Edinburgh Classics Departmental Meeting that mid-way through, for particular purposes, relabelled itself Board of Studies, to go back to Classics Departmental Meeting for the next item on the agenda).

Note also that even according to Hansen’s reconstruction (as he believes the decree of Teisamenos is authentic — I don’t), at the end of the fifth-century the Assembly did indeed choose to call itself nomothetai for the specific purpose of lawmaking. Ultimately, I think the long continuity of a nomothetic ideology (as I argue in a long piece of 2015) made sure that even when lawmaking (as making nomoi) was ‘democratised’, still they had to keep, nominally but also ideologically, a distinction between lawmaking and decree-making, because traditionally nomoi were made by nomothetai, not by a random assembly, as it were.

That said, my argument is that this is the most economical interpretation of the evidence, not that it’s safe. I think there is no evidence whatsoever that the nomothetai were selected by lot from those who have sworn the Heliastic Oath, and some evidence that they might be a relabelled Assembly. Lambert (doyen of Greek epigraphists), for instance, agrees on the first proposition, and finds the second possible and even likely, but notes that the nomothetai could also potentially be a subcommittee of the Assembly (selected god knows how) — he’s right, that’s also possible, if a bit less economical.
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Sortition in the press

Some recent media items mentioning sortition:

The Evening Standard: Let a citizens’ assembly sort the mess left by Parliament by Richard Askwith

TruthDig: Extinction Rebellion by Chris Hedges and Mr. Fish

The New Yorker: A New Film Offers a Multitude of Answers to the Question “What Is Democracy?” by Masha Gessen

Were 4th century nomothetai selected by lot?

Many of us arguing the modern case for descriptive representation via large randomly-selected juries have used the 4th century Athenian nomothetai (legislative panels) as a loose template. Although the Greeks had no mathematical concept of proportionality, nevertheless the large size of the panels (501-5,001 jurors), and the fact that the decisions of the nomothetai were held to represent the informed and considered view of the whole demos has appealed to deliberative democrats in general and sortinistas in particular. James Fishkin has acknowledged the debt that Deliberative Polling owes to the nomothetai, the only differences being the non-binding nature of the DP decision outcome and Fishkin’s insistence on face-to-face deliberation in small, carefully-moderated groups. The practical proposal at the heart of my PhD thesis, Election by Lot and the Democratic Diarchy (Exeter University, 2018) attempts to closely simulate the process of 4th century nomothesia, relying primarily on Hansen (1999) and Blackwell (2003). Mogens Hansen read an early draft of the 4th century chapter for me and the thesis was signed off by my classics supervisor Lynette Mitchell.

However Mirko Canevara has recently thrown a cat among the pigeons with his claim that

there is no evidence whatsoever that the nomothetai were ‘jurors’, and what evidence there is suggests instead that they were a special, relabelled session of the Assembly.

This was hinted at in his short piece on this forum, but the full argument is contained in the paper Extreme Democracy and Mixed Constitution in Theory and Practice (Canevaro and Esu, 2018). The paper (highly recommended) is password protected so can only be read online, so I can’t cut and paste the text, but their claim appears to be that the notion that the nomothetai were randomly-selected conflates two distinct aspects of 4th century nomothesia – the repeal of existing legislation (which was in the hands of randomly-selected jurors in the law courts) and the passing of new legislation which was in the hands of special ad-hoc sessions of the whole Assembly. The procedure for the former was:

Judges were selected by lot from 6,000 random Athenians, who had sworn the judicial oath. And yet their procedures were designed to condition the behavior of the judges so that they would concentrate on issues of legality (and, in this case, of compatibility or incompatibility of the new proposal with the existing laws). This was achieved through institutional instruments such as the oath itself, preliminary hearings governed by a magistrate, no debate or deliberation in the lawcourt, and the application of strict majority rule. (pp. 128-9)

Regarding the latter:

The identity of the nomothetai is also a complex issue: the only alleged evidence they were [randomly selected] judges – that they were selected from those who had sworn the Judicial Oath – is a statement within an extremely problematic document found at Dem. 24, 20-23, which finds no confirmation whatsoever in our sources. There are many reasons to consider that document a later forgery. (p. 132)

However Aeschines’ Against Ctesiphon (Aeschin. 3, 38-40)

Not only shows that the nomothetai voted by show of hands, as an Assembly and unlike a panel of judges who had sworn the Judicial Oath; it also shows that the nomothetai were none other than a special session of the Assembly, summoned ad hoc whenever there were new laws to enact and labelled nomothetai. (ibid.)

If Canevara and Esu are right this would resolve a number of puzzles:

  1. Given that the derogation of nomothesia to small randomly-selected panels would be a controversial move in a political culture where the primacy of the Assembly was paramount, one would anticipate the literature to reflect this. But there is a ‘silence on 4th century nomothesia’. (p. 119)
  2. Aristotle’s characterization of 4th century nomothesia as even more a case of ‘extreme’ democracy than 5th century Assembly procedure is strange, given that many historians have viewed this as a ‘conservative’ move.
  3. Why the decision mechanism in the nomothetai was open show of hands, rather than secret ballot (as in the lawcourts).

So my questions to Mirko are:

  1. Given that your claim is (from the perspective of the sortinistas on this forum) analogous to Holocaust denial, have I misunderstood you?
  2. What has been the response to your paper by Hansen and other classical historians?
  3. What might be the implications for those of us who seek Athenian provenance for their modern sortition proposals?

When is a conversation not a conversation? When it’s a political conversation.

Violence in Bahrain as Democracy Protesters Take to Streets

This essay is cross posted from Quillette

I

It looks like liberal democracy is falling apart. But we can put it back together if we take democracy seriously enough—as seriously as the ancient Greeks.

The chaos of Donald Trump was unimaginable just a decade ago. Brexit was a similar humiliation for Britain’s political class, leading to its bewildered paralysis ever since. How do such things happen? Perhaps because I admire economists’ deployment of very simple ideas to powerful effect, I’ve come to an approach to these problems that I think is simple and compelling.

First, democracy is government by conversation. A political conversation should often be competitive—to sharpen ideas and measure their support. Yet, to remain a conversation rather than a parody of one, it must also be a co-operative search, if not for agreement, then at least for mutual understanding of where positions differ. However, this co-operative foundation for our politics has been largely extinguished by the weaponisation of political communication by professionals operating on the mass media, and, more recently by “trolling” on social media.

Second, where elections bake competition into the operating system of representation, there’s another, even more time honoured way to represent the people. The ancient Greeks built their democracy around it and it hides in plain sight today whenever a jury is empanelled in a court of law. And, whether it concerns legal or political matters, deliberation within such bodies nurtures the collaborative aspects of conversation. Giving citizens’ juries and assemblies chosen by lot a role within our beleaguered democracy could see it renewed.

II

To become a politician you compete for election. You then join party colleagues competing against their opponents. Yet democracy implies limits to competition. We remain safe for now that no substantial political grouping perpetuates extra-legal violence. Yet something more fundamental is afoot.

Though it apes the form of conversation, political communication has become as professionalised, as optimised to the competition to win votes as McDonald’s use of salt, fat, sugar and advertising is to win customers. Meanwhile, responding to similar competitive imperatives, the informational foundations of our democracy were being shorn away by mass media news values long before the internet arrived. Between 1968 and 1988, the length of presidential sound bites on US network news went from 43 to 9 seconds.1
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Lessons of the Australia Capital Territory compulsory third party car accident insurance citizen jury

In March 2018, a citizen jury convened by the Australian Capital Territory (ACT) government delivered its decision regarding the design of a compulsory third party (CTP) car accident insurance system. The government’s Chief Minister Andrew Barr had committed ahead of time to implement the jury’s decision, but there are now significant political forces pushing against implementation, including Barr’s coalition partner. Adopting the jury’s decision would have significant economic implications for various parties, and as can be expected the process has been called into question. A timeline of criticisms of the citizen jury process is laid out below.

While the attacks are no doubt motivated by interests, the claims that the process itself was tainted by interests cannot be dismissed. The important, if unsurprising, lesson for those advocating the use of citizen juries for public policy is that an expectation that the fact that a decision was made by a citizen jury would by itself carry enough power to resolve significant political conflicts is unrealistic. If the citizen jury’s decisions are to have political power, the citizen jury process must be evidently democratic, i.e., representative of the population and free of elite manipulation. In the case of the ACT CTP jury, this does not seem to be the case. As a result, the jury’s decision cannot be taken at face value as being well-informed and well-considered. The “deliberative democracy” process, then, has had very little value.

The ACT CTP citizen jury, a timeline of criticisms

Even before the jury made its decision, the opposition claimed the process was rigged:

Canberra Liberals to call for inquiry into CTP citizens’ jury
By Katie Burgess, February 20, 2018

The ACT Opposition will push for higher scrutiny of the citizens’ jury on a new compulsory third party insurance scheme for the ACT after concerns the process has been undermined.

Canberra Liberals leader Alistair Coe will on Wednesday call for an inquiry into the citizens’ jury on the insurance scheme currently under way.

“The government’s first shot at a citizens’ jury has rightly made Canberrans sceptical of its merits,” Mr Coe said.

“If deliberative democracy is going to become a function of government, Canberrans need to be able to trust that it is conducted in a fair and impartial manner.

“If we can’t trust the process, then deliberative democracy will be nothing more than expensive tokenism.”
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On what the Council of 500 did and did not do

By Mirko Canevaro

[Editor’s note: this post is a response to comments on the post Athenian Constitutionalism: Nomothesia and the Graphe Nomon Me Epitedeion Theina and should be read together with the original article.]

There is a need to distinguish between decree-making and law-making (nomothesia). In decree-making, roughly 50% of fourth-century decrees found on stone are decrees of the Council (probouleumatic) ratified by the Assembly without discussion (unanimously). The other 50% were proposed directly in the Assembly, either because the Council enacted an ‘open probouleuma’ (invitation to discussion but with no actual proposal), or because the proposal of the Council had failed to be ratified in the Assembly.

I, for one, don’t see the Council as an ‘administrative magistracy’. Alberto Esu has a great chapter forthcoming showing just how important the Council was in ‘deliberating’, and how it actually had vast powers of decision on its own. And Ober, in Democracy and Knowledge, has made a powerful argument for the role of the Council in collecting and synthesising diffused knowledge through deliberation. (See also my piece on majority rule and consensus, about how many decrees were enacted by the Assembly without the debate, on the force of the deliberation that had been carried out in the Council, with the evidence for it. I argue that deliberation was possible and went on as a matter of course – the paper is controversial, but some have already agreed, e.g. Ober, Luraghi, Harris, even Hansen, and we don’t agree on much else… Let’s see how the debate proceeds.) It was not that central in nomothesia, but it was very central in decree-making, as a proper deliberative body.
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Athenian Constitutionalism: Nomothesia and the Graphe Nomon Me Epitedeion Theinai

Many of us who argue the case for the implementation of sortition in modern lawmaking like to base their arguments on fourth-century Athenian practice. In my PhD thesis on the topic I argue (on the authority of Hansen and Blackwell) that there were eight stages involved, and a new paper by Mirko Canevaro (who disagrees with many of Hansen’s claims) argues that it was even more complicated. The following stages are from page 73 of his paper:

In fourth-century Athens, to pass a law,

[1] the demos first acted in the form of the Council of Five Hundred, selected by lot. The Council set the agenda for the Assembly and could be persuaded to put lawmaking (as the production of new laws – general permanent rules) in the agenda of the next Assembly.

[2] At that point, the Assembly (composed potentially of the whole demos, and in any case very rarely of fewer than 6,000 people) held a preliminary vote not on new law proposals, but on whether laws could be proposed at all. The institutional setup was such that the first vote in the Assembly was not on a particular solution, but on whether the demos recognised that there was a problem that needed solving through legislation.

[3] If the vote was successful, then volunteers could propose new laws, which had to be widely publicised for a month.

[4] At the end of the month, the Assembly would set a date for the meeting of the nomothetai to enact new laws.
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