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Nomothesia (Legislation) 

Christopher W. Blackwell, edition of January 24, 2003

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· Terms ·

Read about the evidence
Xenophon (Xen. Hell.).
Aeschines (Aeschin. 1).
Aristotle (Aristot. Pol.).
Demosthenes (Dem. 23).
Plot on a Map

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 (νόμος) and psephisma (ψήφισμα). 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 his account of a speech that Euryptolemus gave before the Assembly in 406 (Source for date: OHCW). 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 refered 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” (νόμοι) are good, but the “decrees” of the Assembly (ψήφισματα) 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” (ψήφισμα δὲ μηδὲν μήτε βουλῆς μήτε δήμου νόμου κυριώτερον εἶναι) (Dem. 23.87).

Read about the evidence
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 Nomothetae” (SEG 12 87.607).

Read about the evidence
Demosthenes (Dem. 23).

The Athenians had no formal 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; see also IG II2 43.51-63 = Tod 123).

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