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Athenians in the 4th century were governed by laws (nomoi or nomos, νόμος, in the singular) and decrees (psephismata, or psephisma, ψήφισμα, in the singular). Decrees were passed by a vote of the Assembly, of the Council, or both. Laws came into being by a more complicated process. Laws took precedence over Decrees. Anyone who proposed a decree in the Assembly that contradicted an existing law was subject to prosecution on a charge of “Illegal Proposal” (graphe paranomon, γραφὴ παρανόνων). Laws were passed through a process called nomothesia (νομοθεσία) or “legislation.” Each year the Assembly met to discuss the current body of laws. Any citizen could propose a change in the laws, but could only propose the repeal of a law if he suggested another law to replace the repealed law. If the Assembly decided to change the laws, a board of “Nomothetai” or “legislators” was selected to review and revise the laws. The process of legislation was like a trial, with advocates speaking in defense of the existing laws, and others speaking against the existing laws. The Nomothetai would vote on changes, and any changes that passed were published on inscriptions near the statues of the Eponymous Heroes and read aloud at the next meeting of the Assembly. The Nomothetai also undertook an annual review of all existing laws, to make sure that none contradicted others, and that none were redundant.

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Xenophon (Xen. Hell.).
Aeschines (Aeschin. 1).
Aristotle (Aristot. Pol.).
Demosthenes (Dem. 23).
 
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Athens.

To understand legislation under the Athenian democracy, it is necessary to understand some terms. The Athenians of the 5th century BCE seem to have used two words interchangeably to refer to what we call a “law,” nomos and psephisma. In the 4th century these words had two distinct meanings: a nomos was a “law,” while a psephisma was a “decree.” For the 5th century usage, we have the historian Xenophon and his account of a speech that Euryptolemus gave before the Assembly in 406. The speaker tells his audience that, in a particular case, either the psephisma of Kannonus applies (Xen. Hell. 1.7.20), or the psephisma regarding temple-robbers and traitors (Xen. Hell. 1.7.21); he then refers to both of these psephismata as “nomoi” (the plural form of “nomos”) (Xen. Hell. 1.7.22). So it would seem that these two terms were more-or-less equivalent. In the 4th century, however, these two terms clearly referred to two different things: nomoi were “laws” enacted through a special process of legislation, while psephismata were “decrees” passed by a vote of the Assembly. The orator Aeschines in one of his speeches asks, rhetorically, why the laws (nomoi) are good, but the decrees of the Assembly (psephismata) are bad (Aeschin. 1.177). The philosopher Aristotle makes a theoretical distinction between laws and decrees, noting that in certain kinds of democracy the laws rule, but in other kinds of democracies decrees can override laws (Aristot. Pol. 1292a). Athens was the former kind of democracy, according to Demosthenes, who quotes a principle of Athenian governance, that “No decree, either of the Council or the Assembly shall have more authority than a law” (Dem. 23.87).

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Aeschines (Aeschin. 3).
Demosthenes (Dem. 23).

On the other hand, the laws could determine what sorts of decrees the Assembly could pass, such as a law that allows the Assembly to pass a decree honoring a citizen, but that limits the circumstances of such an honor (Aeschin. 3.36). The courts could nullify a decree, based on the laws (Dem. 23.96). When inscribed on stone for the permanent record, decrees begin with the formula, “It was decided by the People,” or, “It was decided by the Council and the People” (IG II² 206 4-5, IG II² 206 28-30; IG II² 237.5; IG II² 237 31); a law began with the formula, “It was decided by the Lawgivers” (SEG 12 87.607).

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Demosthenes (Dem. 23).

The Athenians had no “consitution” such as the United States has, a body of laws that fundamentally define the state. Some laws, however, included additional clauses that made it very difficult to change or revoke the law. One such clause is quoted at Dem. 23.62: “Whosoever, whether magistrate or private citizen, shall cause this ordinance to be frustrated, or shall alter the same, shall be disfranchised with his children and his property” (Dem. 23.62).

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Andocides (Andoc. 1).
 
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Athens.

A law included as a quotation in a speech by the orator Andocides says, “In no circumstances shall magistrates enforce a law which has not been inscribed. No decree, whether of the Council or Assembly, shall override a law. No law shall be directed against an individual without applying to all citizens alike, unless an Assembly of six thousand so resolve by secret ballot” (Andoc. 1.87). This establishes three important principles of Athenian legislation: (in order from last to first) that except under very special circumstances, the laws of Athens were to apply to all citizens equally; that the laws (nomoi) had more authority than the decrees (psephismata) of the Assembly or Council; and finally that only the written laws were valid.

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Plutarch (Plut. Sol.).
 
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Athens.

According to Plutarch, when Solon revised the laws of Athens in the 6th century BCE, he wrote the new laws on wooden tablets (Plut. Sol. 25.1). By inscribing laws, either on wood or in stone, and setting them in a public place, knowledge of the laws was made available to all citizens, rather than to a small elite.

The procedures for making new laws or revising existing laws was complicated, and seems to have been intended to make the process as democratic as possible, and to prevent any hasty or poorly considered changes to the laws.

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Demosthenes (Dem. 24).
 
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Athens.

Demosthenes describes process of legislation in detail in his speech prosecuting Timocrates (Dem. 24). He reminds the jurors that, “In our laws at present in force, men of Athens, every condition that must be observed when new statutes are to be enacted is laid down clearly and with precision. First of all, there is a prescribed time for legislation; but even at the proper time a man is not permitted to propose his law just as he pleases. He is directed, in the first place, to put it in writing and post it in front of the statues of the Eponymous Heroes for everyone to see. Then it is ordained that the law must be of universal application, and also that laws of contrary purpose must be repealed; and there are other directions with which I do not think I need trouble you now” (Dem. 24.17-18).

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Demosthenes (Dem. 24).

While any citizen could suggest changes to the laws, laws were not passed by the Assembly or the Council, as decrees were, but were passed by a rather prolonged process involving the “Lawgivers,” the nomothetae (the singular form is nomothete). Panels of Nomothetae were formed for the purposes of creating new laws and reviewing existing laws; the Nomothetae were drawn from Athenians who had sworn the “dikastic oath,” the oath that jurors swore before entering a courtroom (Dem. 24.27; a passage in Demosthenes, Dem. 24.149-151, purports to be the text of that oath). So these Nomothetae were ordinary citizens assigned the task of creating and revising the laws.

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Aristotle (Aristot. Ath. Pol.).
Demosthenes (Dem. 24).
Aeschines (Aeschin. 3).

These Nomothetae would get together and conduct legislation under three circumstances: if the Assembly called for revisions to the laws, if an individual Athenian proposed a change in the laws, and if the six Archons called the Thesmothetae (see Aristot. Ath. Pol. 55.1) undertook a scrutiny of the laws (respectively: Dem. 24.20; Dem. 24.33; Aeschin. 3.38).

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Demosthenes (Dem. 24).

At the first meeting of the Assembly for the year, in the month of Hekatombaion, the Athenians held votes on the whole body of laws (Dem. 24.20; see Dem. 24.23 where the month of Hekatombaion is specified). This is how Demosthenes describes the process:

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Demosthenes (Dem. 24).

“In the first presidency and on the eleventh day thereof, in the Assembly, the Herald having read prayers, a vote shall be taken on the laws, to wit, first upon laws respecting the Council, and secondly upon general statutes, and then upon statutes enacted for the nine Archons, and then upon laws affecting other authorities. Those who are content with the laws respecting the Council shall hold up their hands first, and then those who are not content; and in like manner in respect of general statutes. All voting upon laws shall be in accordance with laws already in force” (Dem. 24.20).

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Demosthenes (Dem. 24).
 
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Athens.

This passage tells us several things. First, it suggests that the laws of Athens were divided into several categories. There were laws concerning the Council; this presumably included laws governing the Nomothetae and the procedure for legislation itself, since it was the Council that appointed the panels of Nomothetae (Dem. 24.27; Dem. 24.47-48). There were laws “common” to all Athenians. There were laws having to do with the nine Archons. And there were laws having to do with “other authorities.” This passage also tells us that the Assembly voted on the existing laws by a show of hands (Dem. 24.20).

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Demosthenes (Dem. 24).

Demosthenes continues his description of the annual review: “If any law already in force be rejected on show of hands, the presidents [the ‘Prytaneis’ described above in the discussion of the Council] in whose term of office the voting takes place shall appoint the last of the three meetings of the Assembly for the consideration of laws so rejected. The commissioners [the ‘Proedroi’] who preside by lot at the Assembly are required, immediately after religious observances, to put the question respecting the sessions of the Nomothetae, and respecting the fund from which their fees are to be paid. The Nomothetae shall consist of persons who have taken the judicial oath” (Dem. 24.21).

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Demosthenes (Dem. 24).

Before this meeting of the Assembly, when the Athenians voted on the existing laws, anyone who wanted to change the laws was supposed to make public specific proposals for new laws: “Before the meeting of the Assembly any Athenian citizen who wishes shall write down the laws proposed by him and exhibit the same in front of the Eponymous Heroes, to the end that the People may vote on the question of the time allowed to the Nomothetae with due regard to the total number of laws proposed. Whosoever proposes a new statute shall write it on a white board and exhibit it in front of the statues of the Eponymous Heroes on every day until the meeting of the Assembly” (Dem. 24.23).

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Demosthenes (Dem. 20).
Demosthenes (Dem. 24).
Aeschines (Aeschin. 3).

This must have meant that the vote on the existing laws was equivalent to a vote on the proposed changes. If the citizens liked the suggestions posted beforehand, they could vote against the existing laws, thus starting a process of legislation. If the citizens did not like the posted suggestions, they would vote in favor of the existing laws. Requiring proposed changes before the meeting would allow the Assembly to make an informed decision regarding how long the Nomothetae should take to conduct their business (see also Dem. 20.94, Dem. 24.36; Aeschin. 3.39).

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Demosthenes (Dem. 24).

Demosthenes says, elsewhere in his speech against Timocrates, that it was lawful for any citizen to propose changing an existing law, but only if he suggested a new law to take its place (Dem. 24.33).

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Demosthenes (Dem. 24).

The Assembly, at this first meeting of the year (on the 11th day of the month Hekatombaion), would also choose five citizens to “speak in defence of laws proposed for repeal before the Nomothetae” (Dem. 24.23). This suggests that the process of legislation was very much like a trial in a courtroom, with some people “prosecuting” the existing laws (and advocating new laws), and others defending the existing laws (Dem. 24.23, Dem. 24.36).

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Demosthenes (Dem. 21).

After this first meeting of the Assembly for the year, if the voting determined that the laws should be reviewed and possibly changed, there was a delay, presumably to let people consider matters. No further action happened at the next meeting of the Assembly in that month, but at the third meeting, the Assembly decided how long the Nomothetae should spend legislating, and details of their pay (Dem. 21.24).

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Demosthenes (Dem. 24).

The Nomothetae were not chosen until the actual day assigned for legislation; on the morning of that day they were chosen by lot from those who had sworn the “Heliastic oath” that all jurors swore (Dem. 24.27). A board of nomothetae could be huge: Demosthenes reports that in 354/3 BCE, Timocrates passed in the Assembly a decree setting up a board of 1001 Nomothetae, and ordering the Council to assist them in their work (Dem. 24.27).

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Demosthenes (Dem. 24).

The meeting of the Nomothetae was conducted by “Proedroi” (Dem. 24.33). The meeting was conducted like a trial, with advocates speaking in favor of the existing laws (Dem. 24.23), and others speaking in favor of changing the laws (Dem. 24.36). When both parties had spoken, the Nomothetae voted by show of hands (Dem. 24.33).

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Demosthenes (Dem. 20).

Any new laws proposed by the Nomothetae were published near the statues of the Eponymous Heroes and were also read aloud to the next meeting of the Assembly (Dem. 20.94).

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Demosthenes (Dem. 24).
Aeschines (Aeschin. 3).
 
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Athens.

In addition to this regularly scheduled, annual, opportunity for legislation, there were other ways of initiation the process of making changes to the laws of Athens. Any citizen could, at any time, propose a change in the laws (Dem. 24.33). The Archons, specifically the Thesmothetae, were also charged with making an annual review of the existing laws and, if they found contradictory laws or redundant laws, they could arrange for a board of Nomothetae to change the laws (Aeschin. 3.38).

Read about the evidence
Demosthenes (Dem. 20).
Demosthenes (Dem. 24).
Demosthenes (Dem. 3).
Aeschines (Aeschin. 3).

In the case of an individual citizen who wanted to change the laws, he could not propose repealing a law without suggesting a new law to take its place (Dem. 24.33; Dem. 20.89-94; Dem. 24.21). The Assembly would decide whether or not the proposal had sufficient merit to be brought before the Nomothetae (Dem. 24.21; Dem. 3.10-13; Aeschin. 3.39).

Read about the evidence
Aeschines (Aeschin. 3).
Demosthenes (Dem. 24).
Aristotle (Aristot. Ath. Pol.).

The Council had to be involved, too, because it was the Council that set the agenda for meetings of the Assembly. So once a citizen had posted a proposal for new legislation, the Council had to put the issue on the agenda for a meeting of the Assembly; this was done by means of a Preliminary Decree, or probouleuma (Dem. 24.27; Dem. 24.48; Aeschin. 3.39). Dem. 24.27 contains a decree that orders “the Council to cooperate in the legislative process” in the matter of convening the Nomothetae, which may mean only that the Council was to ensure that the business appeared on the agenda for the Assembly. The Council did, however, also have a special “legislative secretary,” who made copies of all laws, and attended all meetings of the Council; this suggests that the Council discussed proposals for legislation before sending them on to the Assembly (Aristot. Ath. Pol. 54.4).

Read about the evidence
Andocides (Andoc. 1).

Since laws, passed by the Nomothetae, were more important than decrees of the Council or Assembly (Andoc. 1.87), what happened when a decree contradicted a law? Or, what happened when someone proposed a law in a way that violated the laws governing legislation?

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Aristotle (Aristot. Ath. Pol.).
Demosthenes (Dem. 24).

A “graphe paranomon,” or “prosecution for having proposed an unlawful decree” was the means by which the Athenians ensured the sovreignty of the laws; any such charge would be tried before the People’s Court (Aristot. Ath. Pol. 59.2; Dem. 24.33).

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Demosthenes (Dem. 24).

Demosthenes’ speech against Timocrates focuses on just such a charge; the prosecution claims that Timocrates introduced a new law that contradicted an old law (Dem. 24.33). That doing so was illegal runs contrary to the assumption in American law that newer legislation takes precedence over older laws.

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Demosthenes (Dem. 24).

Demosthenes actually claims that Timocrates’ proposal was illegal for several reasons. First, it contradicted already existing laws (Dem. 24.33). Second, the proposal had not been published by the statues of the Eponymous Heroes (Dem. 24.18). Third, he did not allow the Council to consider the law before referring it to the Assembly (Dem. 24.26). Finally, he did not follow the lawful schedule, which would have meant proposing a new law at one meeting of the Assembly, taking no action at the next meeting, and at the third meeting voting on whether or not to convene the Nomothetae (Dem. 24.21); Timocrates, it is alleged, proposed his law at one meeting of the Assembly and moved that it be handed over to the Nomothetae on the very next day (Dem. 24.28).

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Demosthenes (Dem. 20).

Demosthenes’ speech against Leptines (Dem. 20) is another example of a graphe paranomon. Here, Demosthenes claims that Leptines arranged for the Nomothetae to pass a law without repealing any contrary laws (Dem. 20.89; Dem. 20.96), publishing the proposal beforehand, or allowing the Assembly to consider the matter before sending it to the Nomothetae (Dem. 20.93).

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Demosthenes (Dem. 18).

Demosthenes himself was once charged with improperly suggesting the emendation of a law governing the maintenance of warships (Dem. 18.105).

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Aristotle (Aristot. Pol.).
 
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Athens.

Aristotle criticizes direct democracy on the grounds that in democracy decrees have more authority than laws (Aristot. Pol. 1297a4-7). But this criticism does not seem to apply to the democracy of 4th century Athens.

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Aristotle (Aristot. Ath. Pol.).
Demosthenes (Dem. 24).
 
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Athens.

We find a more apt criticism in Aristotle’s Constitution of the Athenians (Aristot. Ath. Pol.), which says that in Athens everything is decided by “decrees and lawcourts” (Aristot. Ath. Pol. 41.2); since the legislators, the Nomothetae, were chosen from the same pool as potential jurors, and swore the same oaths as jurors (Dem. 24.27; Dem. 24.149-151), this comment seems fairly accurate. Whether or not we should see this fact as a bad thing is, of course, a matter of opinion.

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