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.
Continue reading

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?

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.
Continue reading

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.
Continue reading

Pressure for Brexit Citizen’s Assembly increases

Message from Compass:

Only a few weeks ago, many had not even heard of the idea. But now, the use of a Citizens’ Assembly to break the Brexit deadlock is a real possibility.

Compass, working as ever with others, has helped get an answer to Brexit on the political map and found a way to rebuild our broken democracy.

The demand is simple: if Parliament can’t decide, then a representative sample of the people must take over. Chosen by lot and filtered to be representative of class, geography, gender, race and views on Brexit, they would decide between which of the three options on the table to recommend to Parliament: Deal, No Deal or a Second Referendum.

A Brexit Citizens’ Assembly would take ten weeks. During this time it would set up, present the evidence, allow people to deliberate and then recommend a way forward to Parliament. A short extension of Article 50 would be needed. It is doable.

Lisa Nandy and Stella Creasy, now backed by dozens of MPs from across the spectrum, have submitted an amendment for Parliament to set up such as an Assembly.

The amendment is likely to be debated next Tuesday. It’s called ‘Amendment H’.

Whoever your MP is, lobby them – write, email or turn up at a weekend surgery. You are not asking them to take a side on Brexit, just to support a better process to reach an answer.

Brexit_event_Ca.jpg

Last night in Westminster, a packed room heard the case for a new politics. In times of crisis we look to the ideas lying around us – the best idea is a Citizens’ Assembly. It is time to get out of the Brexit stalemate and deepen our democracy by trusting the people.

Please do all you can to ensure the country has the option of a Citizens’ Assembly.

Our deepest thanks,

The Compass Team

The Guardian view on Brexit: the government has failed – it’s time to go back to the people

According to the lead editorial in today’s Guardian:

We urgently need innovative ways to resolve the referendum vote. Setting up a citizens’ assembly is the first step to break the impasse . . . Britain should pause the article 50 process and put Brexit on hold. Parliament should explicitly reject no-deal. MPs should then open up the debate to the country: first, by establishing a citizens’ assembly to examine the options and issues that face the nation; and second, by giving parliament the right, if it so chooses, to put these alternatives in a referendum this year or next.

It’s worth pointing out that this approach involves a mixture of sortive, elective and plebiscitary elements.

Right-wing support for sortition

A paper has just been uploaded to Academia.edu entitled Instituting a Democratic Sortition in America. The author, Terry Hulsey (who hails from the Abbeville Institute, which lauds the culture of the Confederacy and the “Southern tradition”), offers a libertarian (anarcho-capitalist) critique of social democracy and is no fan of equality (as currently conceived):

A second large group of political scientists writing about sortition are those who, dismayed that over 95% of the elective oligarchy of legislators are white males – and about half of them lawyers – seek equality in the form of proportional representation for women, for minorities currently based on race, and for unspecified protean “disadvantaged” factions. Hugo Bonin, Ernest Callenbach, and Michael Phillips are typical of this group. All of them embrace “diversity” while being curiously blind to the fact that diversity is the opposite of equality. They seek equality for the various factions that are assembled not for their diversity, but for their adherence to a prevailing ideology. What were the unequally represented factions of a century ago? They were the factions of class: Worker, bourgeois, and landlord. Clearly the factions are assembled according to political considerations, and not according to measurable benefits for the society as a whole. For how will those who are half black and half Latino be represented? Would they not be doubly represented? How many legislators will represent the Frisian immigrants? And how many will represent the left-handed Frisians with a limp? All such schemes that embrace sortition from egalitarian motives fail because they are based on arbitrary groupings formed by the fashionable watchwords of the day.

Personally I’m encouraged that sortition is now appealing across the political spectrum, and would encourage posters and commentators to try to keep their partisan views to themselves in order to help enlarge the sortition community.