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.
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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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Chalmers: The nakedness of elections

Patrick Chalmers writes:

TOULOUSE, France — In the Danish fable “The Emperor’s New Clothes,” it was a little boy who pointed out what no adult dared expose: The king was naked; his court, a cast of pompous fools beguiled by tricksters.

It’s time to do the same with our own reified system of government — representative democracy and its so-called free and fair elections.

Shocking? Of course it is. We’ve been taught to hold our voting rights as sacred — that despite our political system’s many flaws, representative democracy is, to paraphrase Winston Churchill, “the worst form of government, except for all the others.”

But what if there were, after all, a real alternative? What if there were something less corruptible than pure democracy by election? That something needn’t replace periodic elections, or at least not at once, but it could certainly guard us against their worst failings. Not least of those is the grossly outsized influence of narrow interests at the expense of everyone else’s.

Fishkin: Random Assemblies for Lawmaking? Prospects and Limits

James Fishkin’s contribution to the September 2017 workshop “Legislature by Lot” was titled “Random Assemblies for Lawmaking? Prospects and Limits”:

Abstract
A randomly selected microcosm of the people can usefully play an official role in the lawmaking process. However, there are serious issues to be confronted if such a random sample were to take on the role of a full-scale, full-time second chamber. Some skeptical considerations are detailed. There are also advantages to short convenings of such a sample to take on some of the roles of a second chamber. This article provides a response to the skeptical considerations. Precedents from ancient Athens show how such short-term convenings of a deliberating microcosm can be positioned before, during, or after other elements of the lawmaking process. The article draws on experience from Deliberative Polling to show how this is both practical and productive for the lawmaking process.

Keywords
Athens, corruption, Deliberative Polling, elections, minipublics, nomothetai, representative democracy, sortition

In arguing for short term “Delibertive Polls”, Fishkin offers three problems with long-term allotted chambers: (1) lack of technical expertise, (2) potential for corruption, and (3) not maintaining what he calls “the conditions for deliberation”.
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Venice and Why Sortition is Not Enough

Without much commentary, given the high level of knowledge and debate on this blog, I share an important document about elections in Ancient Venice. As most here will know, I hold it that ‘pure’ sortition is a suitable and necessary tool for democracy. However, it is also an insufficient one, as has been criticised already at the time of sortition’s outset, with the powerful “Socratic Objection” as documented by Xenophon. Today, I describe the missing element specifically for appointments to positions of power.

As most here will know, the Ancient Venetians combined sortition with elections in multiple iterations to determine their leadership, the Doge. Their success with this add-on innovation was superior to the Athenians, as evidenced by the significantly longer duration of their system. Now, there clearly were flaws, room for improvement, as their system ended by reversal to today’s unfortunate party system but that’s for another day.

So far, most scientific papers on this topic have been descriptive. Now Miranda Mowbray, and Dieter Gollmann of the Enterprise Systems and Storage Laboratory at
HP Bristol expand the debate with this paper on the mathematical properties of the Venetian method in avoiding usurpation of power while still finding the best leadership. The authors have their mind on applications in distributed computing security, but for us here, the advantages for a more mundane topic such as democracy may be good enough to give it some thought.

Enjoy.

As an aside, the statutes of G!LT in Austria therefore employ the Venetian model for all executive leadership elections. My rationale is that the party system with its unholy alliance with mass media rewards showmanship and superficiality, as evidenced by the high proportion of TV Actors and Reality Show Stars in top jobs. Instead G!LT’s protocol ensures a reasonably self-experienced, direct, personal knowledge of a candidate’s ability and suitability for an executive position. For those who read German, here to the Statutes of G!LT. For those who don’t there is Google Translate.

1768: Scheme of a Political Lottery, for the Peace of the Kingdom

The following letter to the Political Register and Impartial Review of New Books, printed in London in 1768, offers sortition of parliament as a way to remedy the corruption of elections. Thanks to Terry Bouricius for drawing attention to this historical piece.

Scheme of a Political Lottery, for the Peace of the Kingdom

It is proposed, on or soon after the breaking up of the present parliament, to open a lottery of 2262 tickets at 1000l. each, three blanks to one prize; which prize shall entitle the possessor to a seat in parliament for the place therein mentioned: by which scheme the noisy and expensive business of electioneering (which puts the whole kingdom in ferment) will be over in two hours, many people have an opportunity of serving their country cheap, and much bribary and corruption be prevented.

The the produce (deducting five per cent. to be set apart for guzzle, and to be equally distributed in every borough) be applied towards paying the national debt. That the lottery be drawn in the court of requests, on the day appointed for the meeting of p——t, and that the members so elected do immediately adjourn to the house of commons, appoint a speaker, &c. and then proceed to business. This will effectually prevent all designs of bad ministers, and more especially if their tools should draw blanks, as no person can have more than one ticket, and that not transferable; lest the courtiers, nabobs, or adventurers, should engrose the whole and buy and sell the nation.