Equality by lot

Were 4th century nomothetai selected by lot?

26 Responses

1. 

   Anonymous, on February 21, 2019 at 4:51 pm said:

   Hi Keith

   I won’t pretend to the level of expertise required to get into the details of your post but I have to ask what exactly it is that you’re trying to do with this post?

   This is your first question:

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

   My Q1 to you: I’m not sure whether I qualify as a “sortinista” or not, I find citizen assemblies chosen by lot to deliberate a source of intrigue, hope even, with regard to the possibility of improving the quality of our political debate and its policy outcomes. Does that make me a “sortinista” and, if it does, do you use that term here as some sort of perjorative label intended to provoke?

   That doesn’t seem very constructive use of language and expression.

   My Q2 What are you trying to do by equating “sortinista” perspectives to something akin to Holocaust Denial? I find that highly offensive and spectacularly ill judged.

   I don’t intend to enter into a toing and froing with you on this post – I find it too exhausting.

   However, I wasn’t prepared to let this post pass without calling it out.

   Just in case you’re any doubt – anti-semitism is a live and present danger here in France, where I live, and in plenty of other places too.

   It’s not to be toyed lightly with as you do here.

   https://www.theguardian.com/world/2019/feb/19/antisemitism-protest-marches-to-take-place-across-france

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2. 

   Anonymous, on February 21, 2019 at 4:52 pm said:

   Sorry that anonymous post is by me – Patrick Chalmers

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3. 

   Anonymous, on February 21, 2019 at 4:52 pm said:

   That was me – Patrick Chalmers

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4. 

   keithsutherland, on February 21, 2019 at 5:00 pm said:

   Patrick, all I meant was that Mirko’s paper is extremely controversial — especially for me as, if he’s right, then I’ll have to completely rewrite my PhD thesis! “Holocaust denial” was just a (hyperbolic) figure of speech (along with ‘throwing the cat among the pigeons’).

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5. 

   keithsutherland, on February 21, 2019 at 5:10 pm said:

   PS, not only does the paper argue against the received view of classical historians, it also attacks the only thing we can all agree on at this forum. It would also mean that the modern sortition project has no clear historical provenance, hence the use of hyperbolic language (sorry if it offends anyone!).

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6. 

   Patrick Chalmers, on February 21, 2019 at 5:29 pm said:

   I’d prefer cat and pigeons any day. I’m sure your thesis will be fine.

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7. 

   Yoram Gat, on February 21, 2019 at 5:41 pm said:

   Sutherland,

   As always, your attribution of ideas to others is utterly false. Your claims to speak in the name of writers, commenters, or readers of this forum is completely baseless. You speak for no one other than your obnoxious, self-important, incoherent self.

   And, yes, your off-handed Holocaust reference is disgusting.

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8. 

   keithsutherland, on February 21, 2019 at 7:33 pm said:

   I really don’t think it’s right for the convenor of this forum to troll his own contributors.

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9. 

   tbouricius, on February 21, 2019 at 9:45 pm said:

   I am eager to hear what Hansen and other scholars think of this unusual thesis. As to the raising of hands instead of secret voting by dropping metal disk in a jar as in a standard court case as the jurors left the meeting, I can think of many possible reasons. Standard court cases has an accused person and an accuser, so to protect from hard feelings, or “fear or favor” anonymity was needed. Also, we do not actually know if a single vote was taken by the nomothetai on a new law, or if there were multiple votes needed (such as voting about which existing laws needed to be repealed to accommodate the new one)… so voting by show of hands as in the Council of 500 may simply have been more convenient. and with only the existing law standing “accused” perhaps a secret ballot wasn’t deemed important.

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10. 

    Simon Threlkeld, on February 22, 2019 at 6:14 am said:

    Keith:

    How does Mirko Canevara think the nomothetai were chosen (if not by lot)?

    How many nomothetai does he believe attended a legislative hearing?

    Does he agree that it was a trial-like hearing, with the proposers of the new law presenting the case in favor of the new law, and the opposing case being presented by five people chosen by the Assembly?

    Why does he think they were not called something like a special or extraordinary meeting of the Assembly, instead of the nomothetai?

    As for Athens as a precedent for legislative juries, I saw it as such long before I learned about the nomothetai a few years ago. Athens illustrates the idea of decisions being made by lot-chosen bodies, of which legislative juries are a possible example, regardless of whether Athens had legislative juries or not.

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11. 

    Simon Threlkeld, on February 22, 2019 at 6:59 am said:

    Keith, reading parts 4 and 5 of the article you linked to, I see those 4 Qs are answered there.

    Re Mirko’s view of how lawmaking (nomothesia) worked. It does not make sense that the law-courts repealed existing (and conflicting) laws before a new law was enacted. (As that would mean no law on the topic in the meantime. Maybe the repeal only took effect if the new proposed law was enacted?) Also seems from what I read, that the jury-courts could block new laws by declining to repeal the existing laws with which they conflicted (did I understand that correctly?). If so that makes those jury-courts into legislative juries at least to the extent of being able to veto proposed laws. But on Mirko’s view (if I got it right in one quick reading) the jury-courts did not have the power to enact a new law, instead, if they did not veto it (that is, if they voted to repeal the conflicting law(s)), then it went to the Assembly which decided whether to enact the proposed law or not (with an Assembly doing that being called the nomothetai). Anyway, I’ll read more carefully later, and please do set me straight if I misread or overlooked something.

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12. 

    keithsutherland, on February 22, 2019 at 8:04 am said:

    Hi Simon, as I’m not a historian I can’t really answer any of your questions — hopefully Mirko will respond in due course (I’ve also asked my classics supervisor for her reaction). I’m as surprised (and disappointed) as Terry and yourself because, if Mirko’s view is confirmed by his peers, then 4th century Athens was a direct democracy tout court. (I’m not persuaded by his argument that Athens was a “deliberative” democracy in the modern sense, with the Assembly conveners taking the role of DP moderators, but that would require a different thread, and has nothing to do with representation).

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13. 

    André Sauzeau, on February 22, 2019 at 2:57 pm said:

    About the puzzles solved by Canevaro’s model.
    Ok, Canevaro’s model gives good answers to some puzzles. But other answers are possible.
    *** « The silence on 4th century nomothesia». The speeches we have do not give details about the law (except in dubious inserted documents) because the jurors knew the law, and anyway had the law recently read by a secretary. Aristotle says nothing, ok, but likewise does not consider really the review of laws by the juries. In the “Constitution of Athens, he mentions (LIX, 2) the “graphê paranomôn” and “graphê nomon mê epitêdeion theinai”, but quickly and about the magistrates who have to introduce the charges to the court. Some classicists thought that Aristotle did not linger over the legislation process because this was the subject of another (lost) book by his student Theophrastus. I think rather that Aristotle did not want to linger over whatever looks like « rule of law » in the democracy .
    *** For Aristotle, the 4th century Athenian democracy was the more extreme/perfect kind of democracy, and therefore the worst, because the Assembly and the allotted juries were both dominated by the poor and uneducated classes. Aristotle’s hostility is basically sociological. He does not mind the relative weight of the Assembly and the juries.
    *** Canevaro’s model could explain the vote of Legislators by show of hands, and not secret ballot. But the ostracism (always in the law, if practically out of use) or the giving of citizenship by the Assembly (Demosthenes, “Against Timocrates” §45) were not by show of hands. The way of voting appears linked to the subject of the vote.
    *** If Canevaro’s model give answers to some puzzles, it creates a puzzle. (I repeat my former comment). A decree begins by formulas like « it was decided by the Assembly » or « it was decided by the Council and the Assembly », but a law begins by « it was decided by the Legislators ». or « the Legislators have decided » (Canevaro 2013a, p 140). This fact, written on the stone, seems to demand that the Council, the Assembly and the Legislators are different entities. That Legislators sessions are only special sessions of the Assembly will not easily become consensus.
    *** Personally, I am not convinced by the Canevaro’s model, but Hansen’s model or MacDonell theories have likewise their flaws. The “riddle”, as says Canevaro, is here. Alas, there is small probability the archeologists find the nomothesia law (or laws) on stone …
    *** Reference.
    Canevaro, M. (2013a), « Nomothesia in Classical Athens: what sources should se believe? », The Classical Quarterly, 63: 139-160

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14. 

    André Sauzeau, on February 22, 2019 at 3:00 pm said:

    About the « primacy of the Assembly ».
    *** Canevaro’s model give a key role to the Assembly in the legislative process, but “the primacy of the Assembly” is maybe too strong a word.
    *** If we accept the description of the legislative process given in Canevaro 2016b, and in the case the field was already regulated, there were three steps (after the Council).
    * First step, the reformers had to have the old law canceled through a «graphê nomon mê epitêdeion theinai » by an (allotted) jury.
    * Second step, they had to have the new law to be approved by the Legislators, who, in Canevaro’s idea, were the Assembly in an specific « incarnation ».
    * Third, the opponents could cancel the new law through a «graphê nomon mê epitêdeion theinai » by an (allotted) jury, as « inexpedient ».
    *** Canevaro’s model is different of Hansen’s model, where the Legislators are an allotted body. But even here the allotted bodies are very important ; in the first step an allotted jury was able to stop any reform, preventing the Assembly to enact a new law; in the third step an allotted jury could crush the recently voted law.
    *** Reference.
    Canevaro, M. (2016b), ‘The procedure of Demosthenes’ Against Leptines : how to repeal (and replace) an existing law’, Journal of Hellenic Studies, 136: 39-58.

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15. 

    keithsutherland, on February 23, 2019 at 2:56 pm said:

    Given the semi-divine status of the Legislator in ancient polities (Moses, Solon, Lycurgus etc), it is indeed strange that the 4th century arrogation of this power to a random bunch of (primarily) old and poor citizens should have passed virtually unnoticed, and this certainly supports Mirko’s case. The playwrights mercilessly lampooned jurors in the law courts as in possession of the harlot’s prerogative, so one might well imagine Aristotle taking aim at this decision. Socrates might well have argued that choosing the Legislator by bean was even worse that choosing the minor public officials that were selected by this method. Perhaps the fact that new laws were prefaced with “it was decided by the Legislators” was an attempt to give the decisions of the special Assembly sessions the hallowed status of the (Solonic) Nomothetai. Having said that, I very much hope he’s wrong, because it really helps our modern proposals to have some form of ancient precedent.

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16. 

    André Sauzeau, on February 24, 2019 at 10:51 am said:

    *** Keith writes « Given the semi-divine status of the Legislator in ancient polities (Moses, Solon, Lycurgus etc), it is indeed strange that the 4th century arrogation of this power to a random bunch of (primarily) old and poor citizens should have passed virtually unnoticed. »
    *** But in the 5th century laws were made by the Assembly, where the poor and uneducated classes were the majority, as in juries. As I said, Aristotle’s hostility was basically sociological. He did not mind the relative weight of the Assembly and the juries. As for the orators speeches, they are not very historical-minded, they are mythical-minded, or at least they think their audience is. A good “old” law is quickly said “Solonian”. And we have almost no precise historical data about the legal changes in the first half of the 4th century, we have data about the time of Demosthenes because the classical tradition kept the speeches of Demosthenes and Aischines – as treasures of Attic oratory. We have to guess from the speeches the legal history of Athens, and when the inserted legal documents are dubious, it becomes very difficult.
    *** Many of these documents may be “forgeries”, which means for the philologists they were not included in the first editions of the speeches. They may deliver true legal information, from sources now lost. Or they may not; they may be inventions of later editors, using only the speeches themselves. In this case, we can note that none of these “forgers” got the idea that the “legislators” the speeches mention were actually another name for the Assembly. It was a strange idea for them, as it is for us.

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17. 

    André Sauzeau, on February 24, 2019 at 10:54 am said:

    *** Keith writes he hopes Canevaro «is wrong, because it really helps our modern proposals to have some form of ancient precedent. » Ok, the idea of legislation through a jury would be helped by an Athenian precedent. But, as I said often before, it is wrong to concentrate the kleroterian attention on the idea of an allotted parliament. An allotted parliament with everything else undemocratic in the political system could easily become a sham : a law is what the judge or the executive person says it is. The US constitution is what the Supreme Court says.
    If there are not minipublics to carry audits of the executive agencies and if the last word in judicial matters is not given to judicial minipublics, the democratic legislative power can be bogus. Conversely, an elected Parliament with everything else ortho-democratic would give a near-democratic system. That allotted judicial juries give sovereign power to the dêmos is expressed by Aristotle (Constitution of Athens, 9-1). He refers to an alleged Law by Solon giving judicial last word to allotted popular juries, and he says « indeed when the dêmos is master of the pebble (= the token for judiciary votes), he is master (or “sovereign”, Greek kyrios) of the political system ».
    *** In Euripides’ “Suppliant women”, Theseus, mythical founder of the Athenian democracy, says « dêmos d’anassei diadokhaisin en merei eniausiaisin », « the people rules by turns through annual successions ». The playwright was written around 420 BCE, therefore well before the reforms of the legislative process. Maybe in some circles there was an idea of extending the use of sortition, but the sentence would have been ridiculous without an established idea equating sortition and People’s power.
    *** In 4th century Athenian democracy, the sources of political power were three :
    ** 1- the gathered dêmos, hearing the orators and deciding afterwards
    ** 2- the election for military and financial managers, and some others as public advocates (functions needing both political trust and technical ability)
    ** 3-the lot: the Council, most magistrates, the Courts.
    with doubt about the Legislators (but no doubt about the strong role of courts in the legislative process).
    In a modern society it is difficult to have a “gathered dêmos” (modern referenda are quite far from a gathered dêmos), and therefore it is logical to give to allotted bodies most of the role of the Assembly. Could we design something like a deliberating body including the whole dêmos? Maybe, but difficult to conceive. And anyway in a modern dynamic and complex society it could be only for a small part of the policy choices.

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18. 

    keithsutherland, on February 24, 2019 at 1:47 pm said:

    Andre:> Aristotle’s hostility was basically sociological. He did not mind the relative weight of the Assembly and the juries.

    Yes, Mirko (and most historians) agree the former, but you think he would have mentioned the transition to nomothesia by allotted jury. In the absence of evidence (for a transition), Occam’s Razor would suggest that it didn’t happen.

    >an elected Parliament with everything else ortho-democratic would give a near-democratic system.

    Again Mirko claims Aristotelian provenance for his claim that election under universal suffrage is potentially as democratic as selection by lot, so we need to be pause for thought before retweeting Montesquieu’s “Aristotelian” cliche (“The suffrage by lot is natural to democracy, as that by choice is to aristocracy.”)

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19. 

    André Sauzeau, on February 26, 2019 at 9:11 am said:

    About Aristotle’s democratic clichés.
    *** In 4th century Athens the money elite and the culture elite were almost overlaid on each other, therefore we can speak of « the elite ». (In contemporary Western countries there is much more closeness between these two « general » elites than before, but we are not in the Athenian situation). A part at least of the Athenian elite could not stand the democratic system ; because of the fiscal or para-fiscal demands of the kind of welfare state democracy established (after the end of the Empire) ; and because they found unbearable the idea of political equality with their poor and uneducated fellow-citizens as writes Aristotle (Politics II, 7, 10 ; 1266b40-1267a1) : « the masses (hoi polloi) are discontented if possessions are unequally distributed, the elite people (hoi kharientes) if honors are equally distributed, bringing it about that “Noble and base in equal honor stand” ».
    *** But the oligarchic endeavor of the end of the 5th century, the « Thirty Tyrants », left such a bad memory of violence and treason that it was very difficult to be openly a neo-oligarchist, as it is very difficult to be openly neo-fascist in contemporary France.
    *** For elitist thinkers the first option was to advocate another system neither democratic nor oligarchic : a « mixed republic » (“politeia”) as we find in Aristotle or in Plato’s Laws (another system was, in utopian fantasy, Plato’s state with philosophers-kings).
    *** The second option was to say « we want democracy, but a good democracy as in (mythical) good old days », with actually a political model which is a kind of mixed republic or hybrid system painted as democracy. This is the option of Isocrates, as we can see in his “Areopagitica”..
    *** Political thought in Aristotle’s writings is somewhat muddled, maybe because his books are actually note-books by his students. But we can find the two lines. We can find various ideas about « republican » models, good systems versus bad democracy.
    But we find likewise the Isocrates’ line of extending the word « dêmokratia » to political systems quite far of what in ordinary Athenian ideas was dêmokratia (what I call « ortho-democracy ») ; so blurring somewhat the line between “politeia” and “dêmokratia”. In Politics IV, 6, 2-3; 1292b25-33 Aristotle includes in the range of democracies some systems where the poor classes are excluded from political power, kept for higher and medium classes…
    *** Therefore it is not so strange to find in Aristotle‘s writings « democratic clichés » as the paramount use of lot in dêmokratia, taken from ordinary ideas, and at the same time some wide use of the democracy word along Isocrates’ line.
    *** Note that in Aristotle’s Politics the democratic clichés are usually quoted « with quotation marks » : he uses words as « dokei » ( « it is considered / it is thought »), « phasi » (« they say / it is said »). For instance : about freedom as character of democracy (V, 9,14-15 ;1310a28-32 and VI, 2, 1 ; 1317a40-41-1317b1-2) ; about use of lot as a character of democracy (IV, 9, 4 ; 1294b8-10).
    *** If we want ideas coming directly from whatever is left of ancient democratic thought, we have (short) Herodotus III 80-82, Euripides’ Suppliant Women v 399-462 and the authentic speeches of 4th century Attic orators.
    *** But Montesquieu was not wrong in picking democratic clichés from Aristotle. We can use Aristotle as informing us about the democratic clichés – with some care.

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20. 

    Nicholas Gruen, on February 26, 2019 at 9:19 am said:

    If the nomothetai were not selected by lot, it doesn’t seem to do too much harm to the provenance of sortition – secure as it is in plenty of other aspects of the Athenian democracy.

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21. 

    Yoram Gat, on February 26, 2019 at 10:14 am said:

    Since the primary democratic utility of sortition is for agenda-setting, it was the allotted Boule that was the main democratic institution of the Athenian system.

    (BTW, the idea that sortition’s “provenance” is of any practical importance is absurd to begin with.)

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22. 

    keithsutherland, on February 26, 2019 at 12:54 pm said:

    I drew this thread to Mogens Hansen’s attention and he responded “Like Peter Rhodes I believe that Canevaro and Piérart are wrong”. He has sent me the draft of his rejoinder The Inserted Document at Dem. 24.20-23: Response to Mirko Canevaro but it’s under submission to a journal so we’ll have to await publication.

    Nick:> the provenance of sortition [is] – secure as it is in plenty of other aspects of the Athenian democracy

    How so? Sortition had two distinct roles in Athenian democracy — a) the selection of citizens for communal magistracies and b) the manning of juries. The justification of the former — rule and be ruled in turn — clearly does not apply to large states and most people would be sceptical that randomly-selected citizens would have the requisite knowledge/competence. So that leaves jurors and, if Mirko is right, there was no such thing as an allotted legislative court.

    Yoram:> the allotted Boule that was the main democratic institution of the Athenian system

    That claim puts you at odds with the overwhelming majority of classical historians who believe that the principal function of the Council was to protect the Assembly (the main democratic institution) from domination and corruption. As for the claims of deliberative democrats, I can’t imagine what deliberation amongst a group of 500 people would look (or sound) like.

    >the idea that sortition’s “provenance” is of any practical importance is absurd

    For those of us who believe that it requires more than deduction from a logical syllogism to establish effective political institutions, it certainly helps to know if a particular system worked well in the past. But then history is of no interest to armchair philosophers.

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23. 

    Nicholas Gruen, on February 27, 2019 at 12:04 am said:

    Keith,

    I take it your point is the very low chance a citizen has in a large state of being on an allotted body.

    If so, the idea of ruling and being ruled in turn seems to me to apply to large states if one takes the idea to relate to representativeness rather than literal presence on a governing body. Groups of people chosen by lot represent me and the populace from which they’re chosen, even if the likelihood of me being on one is low. However, as with juries a state that used sortition a lot might well be one in which one’s chances of being on such a body were at least as high as one’s chance of being on a jury over any appreciable period of time.

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24. 

    keithsutherland, on February 27, 2019 at 7:34 am said:

    Nick,

    I’m fully aware of the case for descriptive representation (I’ve written at some length on the topic), but the issue we are discussing is the relevance of 4th century institutions for modern sortition projects. Although the Greeks had no mathematical notion of proportionality modern theorists see the large size of juries as an indication of proto-representation but, if Canevaro is right, there were no legislative juries, so this is not a case of lawmaking by a descriptively-representative procedure. Typical boards of magistrates were far too small to be descriptively representative (the LLN would not apply) and the Council was far too large to to be deliberative in any meaningful sense of the word. All we can hope is that Hansen wins the argument with Canevaro (I can’t remember who won the legendary arm-wrestling competition between Hansen and Josh Ober, but Mogens is getting on a bit now).

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25. Were 4th century nomothetai selected by lot? Mirko Canevara responds | Equality by lot, on February 27, 2019 at 5:20 pm said:

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

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26. 

    André Sauzeau, on February 27, 2019 at 6:20 pm said:

    *** Keith Sutherland (February 26, 12h54) distinguishes two kinds of use of lot in Athenian democracy : for magistracies (other than military and financial managers) and for juries.
    *** There was a difference in the idea of the Athenians themselves : the allotted magistrates were subject to dokimasia (clearance), there was no dokimasia for jurors.
    *** But the uses were not totally distinct. The lot in very large juries could give something more or less akin to the modern idea of a mini-public (which is related to the modern science of statistics, unknown of ancient Greeks as of all ancient peoples). The lot in a collective magistracy of ten could give some guarantee that the board will be not dominated by oligarchists (a small fraction of the civic body), and will include mostly ordinary, therefore loyal citizens. Dokimasia was a complementary safety.
    *** This kind of reasoning can be found in Athenian thought. In the speech « On the scrutiny of Evandros », Lysias considers the extreme cases (both exceptional): a magistracy of one, the archon, and the collective magistracy (500) of the Council. Lysias was attacking Evandros (about his past oligarchic leanings) during his « clearance » (dokimasia) for the allotted « magistracy » of archon (one of the rare one-person magistracy), and he said (§11)
    « Besides, had he qualified for the Council, he would have held his seat as one in a body of five hundred, for a year only; so that, if in that period he had wished to commit an offence, he would have been easily prevented by the others. But, if he is approved for this office, he will hold it all by himself, and as a member of the Council of the Areopagus he will obtain control over the most important matters for an unlimited time. » (English translation by W.R.M. Lamb,)
    Putting aside the reference to the Areopagus, the difference between the Council and the one-person magistracy refers to a « statistical idea » but on a simple level.
    *** The one systematic theoretical democrat text we have (after the loss of most of the ancient Greek literature) is included in Euripides’ “Suppliant Women”. Theseus, mythical founder of the Athenian democracy, says « ho dêmos d’anassei diadokhaisin en merei eniausiaisin », « the People rules by turns through annual successions ». This is the democrat basis for the use of lot: it gives the power to the People (ho dêmos). And Theseus here does not distinguish the two uses of lot (magistracies and juries).
    *** A modern dêmokratia could not do without large bureaucracies, with managers. But it would need overseeing and auditing by small allotted bodies, which would not be mini-publics mirroring the People (too small number), but which would include ordinary citizens the People could trust as loyal in majority.
    *** The Athenian distinction between lot for magistracies and lot for great juries would have a similar one in a modern dêmokratia.

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