Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Decrees and Laws.
Christopher W. Blackwell, edition of March 26, 2003
page 11 of 23
The assembly passed “decrees” (ψήφισματα) by show of hands (χειροτονία), but, in the 4th century at least, these decrees were not the same as “laws” (νόμοι). Laws were more permanent, more universal, and therefore harder to pass; for example, a quorum of 6000 citizens was needed to vote on a law that named an individual (a νόμος ἐπ’ ἄνδρι) — such a law revoking someone’s citizenship — but decrees naming individuals required no special quorum (Andoc. 1.87; Dem. 24.59).
Aeschines distinguishes between the two, once asking rhetorically why the laws are good, but the decrees of the Assembly are bad (Aeschin. 1.177). Aristotle makes a theoretical distinction between laws and decrees, noting that in some kinds of democracy the laws rule, but in other kinds decrees of an assembly 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” (ψήφισμα δὲ μηδὲν μήτε βουλῆς μήτε δήμου νόμου κυριώτερον εἶναι) (Dem. 23.87). 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). Based on the laws, the courts could disallow a decree (Dem. 23.96).
The Assembly was responsible for creating laws, but did not pass them or repeal them directly, as it did decrees. On the 11th day of the first prytany, the Assembly met for ratifying the laws (ἐπιξηειροτονία νόμων); the Assembly voted approval or disapproval, first, the laws having to do with the Council, then laws having to do with the nine Archons, and the laws having to do with other officials. If the votes expressed disapproval of any category of laws, then the last meeting of the prytany was set aside for discussion of those laws (Demosthenes adds that there were severe penalties for any officials, prytaneis or proedroi, who failed to follow this procedure) (Dem. 24.20 - Dem. 24.22). If, during those discussions, the Assembly decided that the laws needed to be changed, it could vote, on the third meeting after that decision, to appoint of Board of Legislators, a small committee of citizens who would make the final decision regarding the laws; these were called Nomothetae (νομοθέται) (Dem. 24.25).
Only these Nomothetae could repeal a law (νόμος), but any Athenian citizen could propose the repeal, as long as he suggested a law to replace the one being repealed (Dem. 24.33). Demosthenes himself was once charged with improperly suggested the emendation of a law governing the maintenance of warships (Dem. 18.105). Whoever wanted the Nomothetae to repeal a law, or wanted them to enact a new law, had to write down his proposal and post it publicly near the statues of the Eponymous Heroes; the Assembly could then see the number of proposed changes and allot the Nomothetae an appropriate amount of time for their work (Dem. 24.33). Whenever someone proposed that a law should be repealed, the Assembly appointed five citizens to argue, before the Nomothetae, in favor of keeping the existing law (Dem. 24.23).
In addition to considering and acting upon proposals for new laws and proposals that existing laws be changed, the Nomothetae also undertook an annual review of all existing laws, looking for any contradictions (Aeschin. 3.38). If they found any contradictory laws, the Prytaneis were to call an Assembly, which would vote on how to resolve the contradiction (Aeschin. 3.39). Demosthenes praises this practice of legislating (τοὺς νόμους τιθέναι) as being open and democratic (παρ’ ὑμῖν, ἐν τοῖς ὀμωμοκόσιν, παρ᾽ οἷσπερ καὶ τἄλλα κυροῦται), and in helping the average citizen keep track of the laws of the city: “[The Nomothetae undertake their annual review — CWB] so that there may be only one law dealing with each subject, and that the plain citizen may not be puzzled by such contradictions and be at a disadvantage compared with those who are acquainted with the whole body of law, but that all may have the same ordinances before them, simple and clear to read and understand.” (Dem. 20.93).
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