Equality by lot

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.

As for nomothesia, well, we know for sure that when the Council put the preliminary vote on the agenda, this was not linked to a particular proposal, and we also know that the preliminary vote opened the floor to any proposal, by whoever wished to make a proposal. We know all this because we have examples of decrees requiring the approval of a nomos at a later date, and stating that this should be put forward ‘at the first available session of the nomothetai’, which shows that once proposals were authorised, you could propose anything (Dem. 24 is a great example of this).

We also know that law proposals were not first approved in the Council (and were not drafted by Councillors) – we know this because whenever an enactment ratifies something approved in the Council, we always have ‘probouleumatic formulas’, yet not a single extant law has a probouleumatic formula. And we know this also because in the two examples of nomothesia we can observe in their full unfolding (Dem. 20 and 24), the relevant proposals have unequivocally not gone through the Council. This doesn’t mean that the Council may not have discussed proposals, potential or otherwise, before or after the preliminary vote (and one may guess that when it decided whether to put the preliminary vote on the agenda of the Assembly, it probably discussed issues, potential reforms needed, and therefore also possible proposals to be made). But nothing specific was formally approved or ‘proposed’ by the Council.

Thus bodies selected by lot came into this at various stages: in the Council when they had to decide whether to put the preliminary vote on the agenda of the Assembly (note, however, that the Assembly had the power to force the Council to put something on the agenda of its next meeting); in the lawcourts, where existing nomoi that contradicted the new proposals were assessed and (potentially) repealed before the session of the nomothetai; again, in the lawcourts if the finally approved nomos was indicted with a graphe nomon me epitedeion theinai. Note, on the other hand, that I have argued elsewhere 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 – Lambert, Piérart and a few others agree on this, but it’s very new, so the jury’s out (so to speak!). For a more systematic summary of nomothesia see this article. If you want to see the disagreement between me and Hansen about the role of the Council in individual proposals in full flow, take a look at this article. It’s very technical, but I do try to show on pp. 90-3 that Hansen’s notion of law proposals being presented first to the Council is based on a rather trivial misreading of Dem. 24.

Filed under: Academia, Athens, Deliberation, History, Sortition |