Athenian Democracy and Legal Change

Athenian Democracy and Legal Change
Author(s): Melissa Schwartzberg

Source: The American Political Science Review, Vol. 98, No. 2 (May, 2004), pp. 311-325
Published by: American Political Science Association
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American Political Science Review Vol. 98, No. 2 May 2004
Athenian Democracy and Legal Change

MELISSA SCHWARTZBERG The George Washington U
e ancient Athenians regarded their ability to modify their laws a
trait; indeed, the faculty of "pragmatic innovation" was well known
and was widely viewed as a key advantage that Athens had over i
commitment to legal change endured despite disastrous consequences
a comprehensive revision of the laws, and the complication of legal p
In an apparent paradox, however, the Athenians also used "entrenchment
immutable. Through analysis ofentrenched laws and decrees, it is shown
Athens enviable also made it a difficult ally; entrenchment enabled the At
more credible. Although today entrenchment is typically used to protec
such as rights, in the ancient world it served a strategic purpose.
ecent work on ancient AthensInhas complicated,

apparent contrast to this commitment to muta-
and even demythologized, our bility, the Athenians occasionally
understanding of used entrenchment
clauses, provisions
ancient democracy. We no longer viewthat make laws unamendable. Why
Athens
as a simple "direct democracy," would
but theas a large
Athenians, soci-
given their attachment to change-
able law, choose to restrict
ety with a variety of political institutions themselves in such a strin-
and sophis-
ticated legislative procedures. Yet Athens
gent fashion, cannot
even prescribing deathbefor those propos-
assimilated to a constitutional democracy any systematic
ing modifications? Through more analysis of my
than it can be reduced to a town collection of Athenian decrees
hall meeting; and laws on this ques-
because
tion, I demonstrate
Athens defies easy categorization, though, thethat the Athenians used entrench-
insights
that Athens affords into the relationship
ment in highlybetween
restrictive contexts:
legal in certain financial
constraints and democratic decision decreesmaking
and in alliances and treaties.2
are richer Although today
and more immediately compelling entrenchment
than we clauses are typically
might seen in the consti-
have
anticipated. tutional context, where they serve to make individual
Ancient Athenians regarded the capacity to change rights and other fundamental institutions unamend-
laws, and, generally, to confront contingency with new able, the Athenians used these provisions exclusively
institutional solutions, as a defining characteristic of for narrow, strategic purposes in both the international
their democracy. The Athenians' ability to respond to and the domestic contexts, and did not extend them to
problems by modifying their laws was a source of pride, laws regulating the democracy.
and was widely known throughout the Greek world. The flexibility of Athens' laws generated problems
Although the Athenians had access to a variety of in- for them in the international arena. Potential allies were
stitutions by which they could have made their laws skeptical of Athenian commitments, given its propen-
inflexible, they generally chose not to do so, even in sity to change course; indeed, international relations
the face of disastrous consequences at the end of the scholars continue to investigate the extent to which
fifth century. The explanation for this choice is found democracies are capable of credible commitments (e.g.,
in the Athenian attachment to the progressive ideology Gartzke and Gleditsch 2003, Gaubatz 1996, Kennan
of pragmatic innovation, the desirability of modifying 1996, and Reed 1997). As a consequence, the Athe-
institutions in light of new information or changing cir- nians required a device to signal their seriousness to
cumstances, a belief that proved remarkably resilient.1 prospective allies and to those who might seek to ex-
ploit informational asymmetries, such as financial of-
ficers. The use of entrenchment to enhance Athens'
credibility in the eyes of potential allies, however,
Melissa Schwartzberg is Assistant Professor, The George
Washington University, Department of Political Science, should
2201 be distinguished from the potential use of these
G Street NW, Funger Hall, Suite 507, Washington, DC 20052
devices for "precommitment" more generally (Elster
(maschwar@gwu.edu).
1984, 2000; Holmes 1995). The Athenians generally did
I offer particular thanks to Bernard Manin for his close readings of
not use entrenchment in the latter sense as a means
this paper. I also gratefully acknowledge the comments and support
of self-binding, so that a temporary passion would not
of Nathan Brown, Ingrid Creppell, Jon Elster, John Ferejohn,
Jennifer Gandhi, Jack Knight, Forrest Maltzman, John McCormick,
Pasquale Pasquino, Adam Przeworski, Sebastian Saiegh, Erik
Voeten, and Jeremy Waldron. Versions of this paper were presented situational nature of Athenian decision making. In Greek, pragmata
to graduate seminars at New York University and to the faculty (pl. noun) means "things," "matters," or "deeds" and, in the political
at The George Washington University, and I thank attendeesrealm, for "affairs" or "interests."
comments at these sessions. An early version was presented at 2 the
To the best of my knowledge, the only extended treatment of the
Northeast Political Science Association 2000 Annual Meeting,topic and appears in a 1974 article by David Lewis, a late classicist, sum-
panelists' responses aided in the project's development. I wouldmarized
also in Rhodes and Lewis 1997. Rhodes and Lewis 1997 also
like to thank the anonymous reviewers for their insightful criticisms.
offers a catalog of decrees of the Greek states, excluding Athens,
1 The language of pragmatic innovation is not intended to suggest which includes entrenchment clauses in its index. Alan Boegehold
that the Athenians were forerunners of Peirce or Dewey-although also briefly discusses the use of entrenchment clauses in "Resistance
some may find commonalities-but instead to affirm the specificto andChange in Athens," in Ober and Hedrick 1996.
311
Athenian Democracy and Legal Change May 2004
overwhelm them; the singleEachcase

day one
of member
such of anthisattempt,
prytany would serve as
I will demonstrate, resultedchairman
in the suspension
(epistates), and a third ofof
the the
prytany would
entrenchment clause. Entrenchment was instead used remain on duty for the entire 24-hour period. From the
as a sign of Athens' grave intent to retain a particular time of Ephialtes (c. 463/2) until early in the fourth
policy, given its propensity to modify other laws. The century, the prytany and the chairman would preside
need for entrenchment in the international arena seems at meetings of the Council and of the Assembly. Both
to have persisted into the fourth century, suggesting citizens and noncitizens could apply to the prytany to
that Athens required this additional signal despite the bring a motion before the Council, but in general the
presence of procedural checks designed to make legal Council was independent with respect to its decision-
change more difficult. making process (although the strategoi served as advi-
The analysis here is broken up temporally, due to sors, notably at the time of the Peloponnesian War).
the importance of distinguishing between the legal sys- The Assembly met at various points during the pe-
tems of the fifth and those of the fourth centuries. The riod of a given prytany, although the precise number
account of fifth-century institutions focuses on the cre- of meetings is controversial (Rhodes and Lewis 1997,
ation of the ideology of "pragmatic innovation" and 13). All citizens-i.e., all free, adult males satisfying the
the crucial difference between Athens and Sparta in current Athenian descent requirement-could attend
this regard; it is followed by a discussion of the use of the assembly, and any probouleuma approved by a sim-
entrenchment in the fifth century. After a brief discus- ple majority of the Assembly, even if it contradicted an
sion of the revision of laws at the turn of the century, existing provision, became a nomos-psephisma (law-
fourth-century legal institutions are addressed, paying decree), a fully valid law: The hierarchical distinction
particular attention to the philosophic conceptualiza- between the two, crucial to fourth-century legal history,
tion of legal change in the period, notably by Plato and did not exist in the fifth century, and the two terms
Aristotle. This consideration provides the context for were used synonymously (Todd 1993, 57). Although
a discussion of entrenchment's use in the fourth cen- the laws were publicly available on stone slabs (stelai),
tury, followed by the conclusion, which highlights the the stelai were scattered throughout the city in the fifth
importance of Athens for democratic theory and forcentury, and the revision of prior law by enactment of
political science in general. By reexamining Athens, I new legislation was therefore virtually undetectable;
suggest, two key insights for contemporary democracy to the extent that a procedure for resolving incoher-
come to the fore: the distinctively democratic quality of ence even existed conceptually, lex posteriori seems to
the capacity to modify law and the limited and strategic have prevailed. Moreover, the absence of jurists was
purpose that entrenchment may serve for democracies, extremely important for the development and practice
even in the constitutional context. of law at Athens, especially in the fifth century: Law
was exclusively the stuff of amateurs, and the reforms
at the turn of the century were designed to remedy
some of the incoherence that resulted from the lack of
FIFTH-CENTURY INSTITUTIONS AND
"PRAGMATIC INNOVATION" systemization (Todd 1993, 54). This aversion to profes-
sionalism in law endured, however: Even in the fourth
century, litigants regularly appeal to their amateurism
Although we know significantly less about fifth-century
(as in Demosthenes 1935, 54.17).
institutions than those of the fourth century, the general
The difficulty in ascertaining what the law actually
institutional role of the bodies is reasonably well estab-
lished (Hansen 1991, 27-52; Ostwald 1986). Legislationwas at a given moment was deeply problematic for lit-
was purely a function of the Assembly and the Council igants, and for the jury courts as a whole, naturally;
of 500. The Council deliberated on legislation prior the absence of a police force, and the reliance on
to the Assembly and had important agenda-setting private individuals for prosecution, lent an additional
power. Although the council could enact decrees dimension
of of whim to adjudication (Todd 1993, 79).
its own on minor matters (Rhodes and Lewis 1997, Pericles
13), introduced pay for those serving in the jury
the major legislative function of the Council, known courts (dikasteria), which Aristotle recognizes as a
as "probouleusis" by modern classicists, can be sepa- democratic move inasmuch as it includes those who
rated into two types: open and specific probouleumata would otherwise lose wages and would attract the im-
(pl. noun). In an open probouleuma (sing. noun),poverished
the more generally (Aristotle 1996, XXVII,
1998b, VI, 2); members of the Assembly were not paid
Council instructs the Assembly to debate a certain issue
and, should it be deemed necessary by the Assembly, in to
the fifth century, but magistrates and Council mem-
pass a decree. A specific probouleuma was, in essence,bersa were. The jury courts heard dokimasiai, prospec-
tive reviews of one's eligibility to hold office in the polis
bill, subject to amendment, if necessary, and to ratifica-
tion by the Assembly. The creation of probouleumata (but not one's competence), and euthynai, retrospec-
was passed by a single simple-majority decisive vote. tive renderings of accounts, of magistrates.
The 500 members were composed of 50 from each of The flexibility of the law in the fifth century had the
10 tribes, chosen by lot from those who put themselvesconsequence of unpredictability, because the laws were
forward within the tribe (ho boulomenos, or "the one
changed so frequently that it was difficult to anticipate
who wishes"). These groups of 50 took turns serving the consequences of actions. However, this appears to
as the prytany (prytaneia), the committee of the coun-have been an unintended result of regular modifica-
tions. The public placement of stelai with inscribed rules
cil that performed the actual function of probouleusis.
312
American Political Science Review Vol. 98, No. 2
would seem to have been intended to enable individ- Meier (1993, 411) writes, and cites a late fifth-century
uals to determine whether their behavior, or the be- song by Timotheus that highlights this boast: "I do
havior of others, complied with the law and, therefore,not sing old songs; my own are much better. Young
to anticipate the consequences, positive or negative,Zeus is in charge now; Cronos is dethroned" (407).
of their actions. Certainly, there may have been var- The innovatory ways of Athens, however, were some-
ious reasons for the display of inscriptions. Throughtimes regarded as a liability: the selection of a Spartan,
analysis of "formulae of disclosure," statements on the Eurybiades, instead of an Athenian as commander of
inscriptions addressing the political reasons for the in- the Greek forces at Salamis in 480 was due to what
scriptions, Charles Hedrick (1999) demonstrates that
was perceived as Athenian instability, which "gen-
the erection of honorary decrees, for example, was in- erated anxiety if not outright distrust among their
tended to serve as an incentive for others to emulate allies.... With a Spartan commander they could at least
the honorees' actions, whereas other stelai, including expect courage and decisiveness ..." (21).
financial documents, included a phrase indicating that Thucydides highlights the Athenian attachment to
the inscription was offered "so that anyone who wishes innovation and the democratic nature of that commit-
can see it" (411). Although one might suggest that pub- ment, contrasting it with the Spartans' conservatism.
licity could have been window-dressing on the part ofThe Mytilenian debate, for example, offers a look at
the Assembly, signaling publicity as it acts in a covertthe democratic character of the ability to change course.
fashion, this explanation seems at odds both with theAlthough this is slightly distinct from innovation, part
enormous size of the Assembly (Hansen suggests thatof what the Athenians understand as democracy, on
6,000 attended on average in the fourth century, al- Thucydides' reading, is the freedom to be unbound by
though perhaps fewer during the Peloponnesian War)prior decisions and, given new information, to redirect.
and with the Athenians' general ideological commit-Encouraged by Cleon, the Athenians decide to pun-
ment to transparency, as demonstrated by institutions ish the revolt of Mytilene by slaughtering the entire
such as the euthynai. adult male population and enslaving the women and
The charge of graphe paranomon, by which a pro- children. However, by the following day, the Atheni-
poser of a decree could be prosecuted for a proposal ans are struck by the cruelty of the decision, and an
deemed at odds with the legal standards of Athens-- assembly is called to debate the motion. Cleon ad-
even if these principles were not always transparent--monishes the Athenians to remain undeterred, arguing
also suggests that the Athenians were not interested that the greatest weakness in a democracy is "the con-
in instability for its own sake. Although graphe para-stant change of measures" (Thucydides 1996, 3.37.3).4
nomon was frequently used as a political weapon, theInstead, citizens should strive, in accordance with their
Athenians nevertheless had a strong enough belief inrejection of expertise, to stick with good laws, which
the continuity and stability of their laws over time--they know to be wiser than intellectuals: "[B]ad laws
and that their laws ought to cohere with the legal andwhich are never changed are better for a city than good
social order as a whole (Ostwald 1986,135-36)-to give ones that have no authority, ...; [More gifted fellows]
sense to the charge of unlawful amendment. It does are always wanting to appear wiser than the laws, and
seems clear that the public display of inscriptions hadto overrule very proposition brought forward, thinking
at least the purpose of making their contents generally that they cannot show their wit in more important mat-
accessible to the population, and given the costlinessters and by such behavior too often ruin their country"
of erecting stelai, there is little reason to suspect that(3.37.3-4).
the Athenians actively preferred unpredictable rules. For Cleon, decisiveness is crucial, whereas debate
So if the Assembly did not wish to make its laws unpre- is both vain and ruinous; as a result, he believes
dictable, then why did it boast such a simple mechanism that democracies are incapable of governing others
for legal change change in the fifth century? (Thucydides 1996, 3.37.1). In contrast, Diodotus argues
Especially in contrast with the conservative Spartans, that reopening deliberation permits a better answer to
Athenians took great pride in their ability to con- be reached, assuming that debate is not hindered by
front the unexpected with modified rules and institu-charges of corruption. On substance, Diodotus claims
tional novelty: innovation, in the pragmatic sense of that the decision ought to depend on expected future
creating novel institutions and tools to confront newbenefits, rather than on desire for revenge for earlier
challenges.3 The dichotomy between the innovative deeds; as the Mytilenean democrats did not support the
Athenians and the conservative Spartans was widely decision to revolt, by killing them, the Athenians would
known, and was a source of pride for Athens. Athens deprive themselves of potential allies. Diodotus, and
claimed to have invented virtually everything. "Eventhe ability to change course, narrowly carries the day,
the method of sowing grain was supposed to have been and only 1,000 members of the upper class are killed.
passed on from Eleusis," ancient historian Christian Similarly, the Corinthian speech at Sparta in 432,
which leads to the declaration of war against Athens,
3 Saxonhouse (1996) offers a thoughtful account of the ability to contrasts the competing modes of decision making,
change policies as characteristic of democracy in Thucydides in Athe- emphasizing Athenian innovation and Spartan conser-
nian Democracy: Modern Mythmakers and Ancient Theorists (59- vatism. The Corinthians, attempting to persuade the
86), and Meier's recent narrative history of Athens from the seventh
through the end of the fifth century, Athens: A Portrait of the City
in Its Golden Age (1993), emphasizes the importance of innovation,4 Translations are from the revised Crawley edition (Thucydides
both institutional and technical, for the development of Athens. 1996).
313
their perceptions
Spartans to act against Athenian of the Spartans.portray
aggression, The dating of Ly-
the Spartans as excessively cautious
curgus' creationand the Athenians
of the Spartan institutions is uncer-
as foolhardy in their daring: tain, but Thucydides (1996, 1.18.1) places it at more
than 400 years since the end of the Peloponnesian War.
The Athenians are addicted to innovation, and their de-
The structure of Spartan institutions is not important
signs are characterized by swiftness alike in conception and
here, but the laws to which the Spartans, as the enemy,
execution; you have a genius adhered
for was keeping
a matter of what
considerableyou have
interest to the
got, accompanied by a total want of invention, and when
Athenians and served
forced to act you never go far enough. Again, they are as a competing conception of
legislation.
adventurous beyond their power, and daring beyond their
judgment, and in danger theyHerodotus (1987), for one, believed
are sanguine. that Lycurgus
(Thucydides
1996, 1.70.2-3) "took care" to ensure the endurance of his laws (1.65):
In fact, Plutarch ([1864] 2001) reports that when Ly-
The Corinthians describe curgus
thedied Athenians as persis-
in Crete, his Cretan friends followed his
tent, and as remaining undeterred by
request and scattered even
his ashes there forafear
series
that "if his of
defeats as they try to achieve their
relics should be ends.
transportedHowever, they
to Lacedaemon, the peo-
are restless and desirous; as soon
ple might as
pretend they
to be accomplish
released from their oaths, and
their goal, they set another makebefore themselves.
innovations in the government" (80). PerhapsThe
Spartans' reluctance to act, the
rooted
plan worked,inbecausetheir desire
the Spartans were thought for
peace and stability, places them
to havein
been jeopardy as (Herodotus
profoundly law-fearing they 1987,con-
front the ingenuity of the Athenians, the Corinthians
7.104);7 in Plato's The Laws (1980) (written in the
maintain:
350s and 340s, some hundred years later), the Athe-
nian Stranger comments that one of the best laws of
It is the law, as in the arts so in politics, that improvements
ever prevail; and though fixed usages may be best for undis-the Spartans is that "which does not allow any of the
young to inquire which laws are finely made and which
turbed communities, constant necessities of action must be
accompanied by the constant improvement of methods. not" (634d-e). Archidamus, in the debate at Sparta,
Thus it happens that the vast experience of Athens hasmaintains that their steadfastness is attributable to their
training: "And we are wise, because we are educated
carried her further than you on the path of innovation.
(Thucydides 1996, 1.71.3) with too little learning to despise the laws, and with
too severe a self-control to disobey them" (Thucydides
Conservatism is the best response to stability: The
1996, 1.84.3). Whether these laws were unwritten is
Corinthians do not praise innovation for its own sake.
uncertain, but Plutarch ([1864] 2001) writes that there
When circumstances remain constant, the sedentary was even a rhetra against writing them down (63);8 it
Spartans may enjoy the predictability of their lives,
appears safe to say that although the bulk of Lycur-
marked by rigid adherence to custom. But the Atheni-
gus' laws remained unwritten, some laws were codified,
ans have learned how to confront contingency with cre-
and later laws certainly were. But that the Spartans
ative action. The diversity of their obstacles has proved
had an aversion to changing their institutions, and a
edifying: Progress, on the Corinthians' reading, derives
fear of their corruption, is well documented (Plutarch
from encounters with the unknown and the need to
[1864] 2001, 80), extending to a ban on foreign travel
develop new tools to conquer misfortunes.
and to the expulsion of aliens, for fear that foreigners
The belief in Spartan stability was both well estab-
might have a pernicious effect on the citizens or the
lished and enduring: one of the few good sources on laws.
Spartan institutions, Plutarch's Life of Lycurgus, was
Whereas the Spartans wished above all to protect
written in the beginning of the second century of the
their institutions from change and undue influence, the
common era, more than 500 years later (MacDowell
Athenians prided themselves on their ability both to
1986, 14-22).5 Although, as Plutarch ([1864] 2001) him-
revisit their decisions and modify their institutions to
self acknowledged, "There is so much uncertainty in the
fit their present needs and to innovate where neces-
accounts which historians have left us of Lycurgus, the
sary. Rather than remaining bound by custom or tradi-
lawgiver of Sparta, that scarcely any thing is asserted
tion, the Athenians viewed change as an affirmative
by one of them which is not called into question or
good, not as a weakness; the Athenians' prior deci-
contradicted by the rest" (52), the legend of Lycurgus
sions are valuable only insofar as they help them to
was undoubtedly known to the Athenians6 and affected
address new problems. Yet in this context the deci-
sion to make certain laws unamendable is surprising:
Why would they inhibit their ability to modify their
5 Because of the time gap, Plutarch may not be the best source for institutions, given the importance of this mechanism
the fifth- and fourth-century Athenian beliefs about the system, but
his reliance on Thucydides, Xenophon, and Plato allow us to draw
some inferences; moreover, MacDowell emphasizes, contra Gomme
(1945), A Historical Commentary on Thucydides (1.84), that his tex- 7 For Aristotle (1988b), the Spartan constitution's stability is owed
tual evidence was rather good. to its status as a mixed regime (politeia) (IV, 9, 1294b13-1295al).
6 There are certainly problems with attempting to ascertain the 8 The "Great Rhetra," as it is known, is generally accepted as an early
knowledge of the average Athenian, but Herodotus, Thucydides, and written law. Gagarin (1986) asserts that "Sparta appears consciously
Xenophon all visited Sparta, and given the context of the Pelopon- to have rejected the use of written laws and to have relied on an
nesian War, it is reasonable to assume that the average Athenian increasing degree of control over the educational system to achieve
knew something about the enemy (MacDowell 1986, 15). [... ] authority over its citizens" (140).
314
for their self-conception?"constitutional One answer provisions,"may

however,be might hint thatthe
that
Athenians were well aware of the costs associated with these positions, and their duties, were among those in-
their innovativeness, both in the domestic context and stitutions that the Athenians, at least, wished to keep
in the international arena. Thucydides suggests that al- flexible. Decrees relating to sacred matters were also
though the creativity of the Athenians served them well not entrenched; whether or not they were actually
in war-making, the tendency toward inconstancy ulti- changeable, however, is not clear.
mately led to domestic strife. Moreover, he suggests The most commonly entrenched provisions are those
that the Athenians were blind, perhaps willfully so, relating to alliances and treaties, both in Athens and
to the risks associated with their flexibility and were, throughout the Greek world.11 Non-Athenian decrees
therefore, surprised when their changes of direction offer other forms of entrenchment; for example, an al-
led to poor consequences (Thucydides 1996, 8.1.1-4).9 liance between Elis and Heraea is bounded by a sunset
However, the use of entrenchment indicates that the clause, indicating that it will last for 100 years, but ad-
Athenians were conscious of the pitfalls of their com- ditionally prescribes that "if anyone does harm to this
mitment to flexibility, particularly with respect to their writing, whether private citizen or official or commu-
alliances. The Athenians used entrenchment clauses nity, to the sacred penalty [a talent of silver] shall he be
strategically, it appears, as an occasional corrective liable
to which is here written down" (Fornara 1983, 25,
p. 29). The use of sunset clauses in this period is some-
their propensity to redirect in light of new information,
and to appease allies who might view Athens as un-
what ambiguous, because all peace treaties included
trustworthy. sunset clauses in the fifth century (Ryder 1965, 5) and
because the period of 100 years is often taken by schol-
ars to mean forever.
FIFTH-CENTURY ENTRENCHMENT The explanation for the entrenchment of alliances

and treaties may well be located in the belief by the
The beginning of Athenian democracy is marked by Greek
en- world that Athens could not be depended on to
keep
trenchment and apparent attempts at self-binding, if in its promises. A passage from the Old Oligarch's
a time-limited form: The Athenians "bound themselvesConstitution of the Athenians, perhaps written toward
the end of Pericles' career, illustrates the claim that
by great oaths that for ten years they would live under
whatever laws Solon would enact," and Solon left democratic
the cities have a tendency to defect from al-
liances:
country for 10 years so that he could not be persuaded
to modify the laws (Herodotus 1987, 1.29). A closer
Further, for oligarchic cities it is necessary to keep to al-
look at entrenchment clauses in the fifth century shows
liances and oaths. If they do not abide by agreements or
that entrenchment typically served a strategic purpose,
if injustice is done, there are the names of the few who
at odds with our contemporary conception of entrench-made the agreement. But whatever agreements the popu-
ment as a device designed to protect the most salient lace makes can be repudiated by referring the blame to the
or salutary provisions. In addition, the liberal usage one
of who spoke or took the vote, while the others declare
these devices today is starkly at odds with the penalties
they were absent or did not approve of the agreement
attached for introducing a proposal in contrast to thesemade in the full assembly. If it seems advisable for their
clauses, ranging from atimia (loss of citizen rights) decisions
to not to be effective, they invent myriad excuses
death. for doing what they do not want to do. And if there are
Identifying the provisions that remain flexible is any bad results from the people's plans, they charge that a
few persons, working against them, ruined their plans; but
somewhat simpler than categorizing the entrenched.10
if there is a good result, they take the credit for themselves.
Neither honorary nor dedicatory decrees, which tended
(Old Oligarch 2.17; in Xenophon 1984)
to recognize a particular good deed or set of good
deeds to the city, were ever entrenched, perhaps be- Because assessing responsibility in oligarchies is
cause of a recognition that an honoree could commit easy-the number of agents is relatively small-the in-
an offense and deserve punishment severe enough to centive to fulfill obligations is high, lest one be punished
nullify the prior honors. Rules regulating offices were personally by proalliance forces or by the wronged ally.
not entrenched, neither in Athens nor in other partsHowever, in large democracies like Athens, determin-
of the Greek world, although the actual case numbering who is culpable is more difficult: The composition
is extremely small and therefore somewhat less reli- of the assembly changes constantly, and decisions are
able; the absence of entrenchment clauses attached tomade by simple majority, allowing a substantial minor-
ity to claim that they did not support defection and
that they are therefore blameless. As a result, the Old
9 I am grateful to an anonymous reviewer for drawing my attention
Oligarch claims, Athens is a less reliable ally. Because a
to this point. simple majority of the Council and the Assembly could
10 The major sources for the decrees and laws are standard refer-revoke any decree, including those specifying relations
ence works of inscriptions in translation, Fornara's (1983) Archaicbetween Athens and another state, potential allies were
Times to the End of the Peloponnesian War and Harding's (1985)
From the End of the Peloponnesian War to the Battle of Ipsus; to en-
sure comprehensiveness and consistency of translation (the author's
Greek is not expert level), the sources were checked against Tod 194811 As Rhodes and Lewis (1997, 16) confirm. They argue that the only
(vols. 1, 2) and Meiggs and Lewis 1969. The complete data set isentrenched decrees in Athens are ones of alliance and treaty, which
available from the author, along with a concordance table. seems incorrect given the evidence here.
315
fearful that the Athenians might violate

the Boule. [The a to
Poletai are treaty. Al-
let out the contract.] The
though the benefits to an ally Kolakretai
mightare to provide
have made[the money. Invitation shall be
entering
into a treaty worthwhile, evenoffered
if the for] hospitality
risk that to the embassy of the E[gestaeans
the Athe-
in the Prytaneion at the]
nians would later defect was relatively high, the Atheni- accustomed time. Euphe[mos
made the motion. Let all the rest be as (resolved) by the]
ans may have needed to signal an intention to comply,
Boule, but in future, when [-9-) [-19-] herald shall introduce
at a minimum. This attempt at credible commitment
[-14-] [--- -.
may explain the presence of entrenchment clauses in
treaty-decrees. If, in fact, this decree lacks an entrenchment clause
Which treaties were entrenched? Given
(as is commonly considered) the
and if, in fact,prob-
the dat-
lems of epigraphic evidence ing(Finley
of the decree to 1975,
418/417 ispassim, Todd
correct, instead of an
1993, 30-44), it is impossible toalliance
earlier know at 457/8 for certain,
in the time of Laches,13 whybut
investigation of the extant might
decrees indicates
this be? One explanation that
might be that al-
the Eges-
liances with Rhegium and Leontini
taeans were extremely almost
eager to securecertainly
Athenian sup-
were; although modification of
port the
in their law
war withis
the not subject
Selinuntines to a
and their allies,
penalty, the references to thethe alliance lasting
Syracuseans (Thucydides "forever"
1996, 6.62), and as a re-
are intended to be taken literally and
sult, they were ought,
comparatively weak, therefore,
from a bargaining
to be counted as entrenched (Rhodes
perspective. and
The Athenians Lewis
wished to conquer1997,
Sicily,
524). "though they had also the specious design of aiding
The decrees read as follows, as translated by their kindred and other allies in the island" (6.6.1), and
Fornara.12 Athenian Alliance with Rhegium (433/2) therefore were willing to ally themselves, although the
(Fornara 1983, 124, pp. 124-125): need was not nearly so immediate. Since the Athenians
preferred to keep their alliances flexible, as the discus-
[Alliance shall be made] between the Athenians and [the
sion of the Athenian interest in flexibility showed, they
Rhegians. The oath] shall be sworn by the Athen[ians
so that everything will be] trustworthy and guileless and would, in general, like to operate without the use of
s[traightforward on the Athenians' part,] forever, in rela- entrenchment clauses. When the Athenian bargaining
tion to the Rhegians. [They shall swear the following:] 'As position was weaker-a more pressing need to reach
allies we shall be trustworthy [and just and] steadfast and agreement, a more powerful potential ally-and they
reliable [forever to the Rhegians and] we shall provide needed the allegiance of a recalcitrant state, the en-
them with aid if [.] [ ---]'. trenchment clause might serve to signal Athenian com-
mitment. But when the advantage was overwhelmingly
Athenian Alliance with Leontini (433/2) (Fornara 1983,
on the side of the Athenians, as may have been the
125, pp. 125-126):
case with the Egestaeans, they could frame the treaty
Alliance shall be made between the Athenians and as they preferred and, thus, could refuse to include an
Leontinians and the oath shall be given and taken. entrenchment
[The clause.
oath shall be sworn] by the Atheni[ans as follows:] Procedures
'As regulating tribute payment by the allies
allies we shall be [to the Leont]inians forever [guileless]
to the Athenians, additionally, were entrenched and
and reliable'. [The Leontinians likewise shall] swear: ['As
even have a penalty attached to their modification.
allies we shall forever be to the Athenians] guileless [andcase of the decree relating to the appointment
In the
reliable.]'
of tribute collectors (Fornara 1983, 133, pp. 149-150)
Why were some treaties left without entrenchment (423 B.C.), the person conspiring to invalidate the de-
clauses? In the first place, again, as the treaties are cree (or to thwart the payment of tribute) is charged
in generally poor condition, it is difficult to determine with treason. The decree relating to the reassessment
in several cases if they do lack entrenchment clauses. of the tribute of the Athenian empire (136) (425/4 B.C.)
However, for example, the decree establishing a treaty prescribes the loss of citizen-rights (atimia) and the con-
between Athens and Egesta is in reasonably good fiscation of property for those raising a motion to nullify
the decree. Given that the allies were aware of Athe-
condition (except for a lacuna), and does not have
an entrenchment clause. The decree reads as follows nian inconsistency (based on both the simple-majority
(Fornara 1983, 81, p. 81): decision procedure itself and the unstable composition
of the assembly), it is possible that they might have
That it [be] sworn [by everyone shall be the] generals'
hoped to evade their tribute payments either by the
responsibility [- -] [-14-] with the oath-commissioners so
nullification of the decree by a later majority or by fail-
that [- -] [-11-] This decree and the [oath shall be inscribed
ure to enforce the decree. On this reading, the penalty
on a marble stele on the] Akropolis by the Secretary of
provision is perhaps best read as emphatic-pay the
tribute or else-but the purpose of entrenchment itself
12 I follow the symbol usage of the Fornara (1983) volume: [ ] "enclose
is to signal commitment to the allies.
letters or words that no longer stand in the text as it survives, but have
been restored by modern scholars"; [... ] "indicates by the number
of dots the exact number of missing letters where no restoration is 13 That is, as Mattingly (1996) argues against the more conservative
attempted"; [- - -] "indicates an indeterminate number of missing dating of Lewis and others. Lewis, among many other classicists,
letters"; vacat "indicates that an entire line or space between entire is typically inclined to date decrees including a three-bar sigma as
lines were left vacant"; lacuna "indicates that a portion of the docu- earlier, but this is one of the most controversial points in epigraphy.
ment is missing"; and italics "indicate that only a part of the original Given the Thucydidean context, the preponderance of the evidence
word is extant on the document" (xxi-xxii). (with the exception of the sigma) is in favor of the later date.
316
Some financial decrees whowere

suggested, or also entrenched,
put to the vote, a proposal to spend and
even prescribe the penalty the money within
for any other purposethe(Thucydides
decree 1996,itsel
and the penalty for proposing 2.24.1). This appearsa tochange of the law o
be a reasonably straightforward
ten takes the form of case the death penalty.
of precommitment; that is, the AtheniansOne recog- is t
famous Athenian coinage decree
nized that in the heat of (Fornara
war, they might be 1983,
inclined 97
which bars the use of foreign to spend recklessly and, as such,
coins, decided to create or
weights, an me
sures; it entrenches a section emergency fund stipulating
for a genuine threat on theirthat
land, withsurp
from a minting operation a penaltyis to for
of death go thoseinto
suggestinga special
to touch it. How- fun
and one who proposes to ever,donot even the threat of capital
otherwise ispunishment
subject could to t
death penalty.14 This might dissuade the Athenians from
suggest modifying the law in check
a legislative a
given that demagogues performed moment of crisis, and as the a consequence,
bulk the extent
of to detai
financial work (Hornblower 1992,
which we should 122),
believe that entrenchme
the Athenians engaged in
here could have served self-binding to thwart efforts at siphoni
is in question.
from the fund. Entrenchment, After the failurethen, arises
of the Sicilian in in
expedition a413,
case o
informational asymmetry that
the Athenians may
saw that easily
their enemies lead
were prepared to to e
ploitation: the demagogues have
redouble their access
efforts against them and, to resource
perhaps worse,
and to information that that may their allies
be were becoming restless. When
inaccessible to Chios,
the peo
ple as a whole, and the use the best
of among the allies revolted, and it seemed
entrenchment clear
emphasize
the consequences of taking that the otherundueallies were likely to follow, the Athe-
advantage of th
position. nians panicked: "In the consternation of the moment
Another source, Kallias' second financial decree they at once canceled the penalty imposed on who-
(Fornara 1983, 119), is somewhat less fraught with tex- ever proposed or put to the vote for using the thou-
tual ambiguity and lends itself more readily to inter-sand talents which they had jealousy avoided touch-
pretation. The decree addresses the completion of por-ing throughout the whole world, and voted to employ
tions of the Acropolis and specifies that no other usethem to man a large number of ships [.... ]" (Thucydides
of Athena's money is permitted and proposals to do so1996, 8.15.1). The entrenchment of this provision could,
will be penalized, unless an immunity vote (adeia) is in fact, have exacerbated their fearfulness: The lack
passed. Moreover, the decree says that both the need of immediate access to the funds sharpened their hys-
for an immunity vote and the penalty are identical toteria. Had the money been readily available, they
those governing the proposal of a property tax. So it might have engaged in a more rational, less anxious
appears that matters related to the usage, and collec- deliberative process (if they had not already spent
tion, of funds are governed by a delaying procedure,the talents, an admitted risk). Although the threat of
indicating some general concern about risks of abuse revolution would in any event have elicited a highly
in financial matters. The argument, common in pre- emotional response, the feeling of being constrained,
commitment models, that time delays permit cooling perhaps even trapped, might have heightened the
off could explain the entrenchment in these provisions, response.
especially given the risks associated with financial mat- Given the Athenian commitment to legal change,
ters, as the next example, relating to the case of the 1,000 some strong motivation must have been present for
talents, demonstrates. (Note, however, that time delays entrenchment clauses to appear. Athens wanted to be
may permit publicity, which may have the perverse ef- capable-and to be regarded as capable-of making
fect of heating up debate.) The use of entrenchment to binding agreements with allies. The belief that democ-
regulate matters relating to property is not restricted to racies were incapable of committing themselves in-
Athens: In Halicarnassus (Fornara 1983,70) and Locris hibited their treaty-making ability, and so the Athe-
(33), also, provisions relating to disputed property andnians had to send a signal to potential allies that they
to the settlement of new territory, respectively, are en-would not abrogate their agreements, via the use of en-
trenched. trenchment clauses. Although Athens' allies must have
The final case of financial entrenchment is one that known that the possibility of abrogation remained-
was actually abrogated. At the beginning of the war, that entrenchment was "only words," given the absence
around 431, the Athenians enacted a decree preserving of penalties-the presence of entrenchment clauses in
a special fund of 1,000 talents from the money in the certain key cases suggests that they were meaningful
Acropolis and 100 superior triremes, which were to be both to Athenians and to the allies as an emphasis on
used only in case of an enemy attack by sea on Athens. their intention, given the Athenian tendency toward in-
The decree prescribed the death penalty for anyone constancy. The Athenians also may have feared abuse
by demagogues, and entrenching the punishment en-
abled them to affirm the severity of the crime. Great
ease of legislation could render them vulnerable by per-
14 Traditionally, the decree has been understood as stating that those
who propose to use foreign coins are liable to the death penalty. mitting the depletion of necessary resources, especially
However, Lewis repeatedly argued that the death penalty instead in the face of foreign threats.
applied to proposals against the fund (most notably, in Lewis 1997, Although the Athenians believed that their strength
116-30); his reading is probably to be trusted. The dating is also
derived in no small part from their ability to confront
controversial, because of the use of the three-bar sigma, but the later
dates (425/4 or before 414, instead of 450-446) seem have foundcontingency with innovative solutions, their tendency
adherents recently. to change law could have lethal consequences. The
317
capacity to reverse course tookThe

a 30famously tragicwere
men,15 known as syngrapheis,16 form
elected
in 406, at the trial of the generals for
at least in part to draw the battle
up proposals derived from at
Arginusae. The Athenians had amassed
the laws what
of Solon-demonstrating the remained
force of the ap-
of their resources, 10 generals
pealand 150 ships,
to the "ancient constitution" to rescue
(patrios politeia)-
their fleet at Samos, which had been
which captured
was perceived in the
as the true form har-
of Athenian
bor of Mytilene. However, the rescuers,
government prior to itshaving
corruption by stopped
fifth-century
at the Arginusae islands forlegislation dinner, (Ostwaldwere
1986, 371).met by were
The proposals the
Peloponnesian fleet, and the presented Atheniansto the Assembly,were heroically
which had been gathered in
victorious in the ensuing battle. Despite
Colonus, about an hour and a the victory,
half outside of Athens,
some ships had been lost, and and so bytwo
surrounded generals
armed guards. The distance fromand
47 ships had been left behind the toturbulence
collect of Athens
the could have served to insu-
shipwrecked
sailors, while the remaining late generals
the assemblyand shipsofheaded
from pressure the people as a
to Mytilene to rescue the fleet. whole orA storm
to allow secrecy;derailed
in any case, thebothlower classes
missions: The eight generals would informed
have been unlikely the to Council and 1993,
travel this far (Meier
the Assembly that they had been unsuccessful,
557; Ostwald 1986, 374). However, and the
the presence of the
two generals left at Arginusae returned
guards to Athens.
could have served both to protect The the assembly
eight generals were immediately and to recalled to Athens
ensure the performance for the lat-
of their duties,
the process of euthynai. ter thereby constituting an implicit threat. The remote
A probouleuma was called for locationan alsoimmediate
freed them from vote having toon address the
the guilt of the generals, in violation of decrees
pragmatic concerns of an unstable govern-
city. Toward that
ing due process, specifyingend, thatperhaps,each accused
the graphe paranomon, person
the charge that
was to defend himself separately one had proposedand an that a trial
illegal decree, be-
was immediately
fore a jury court was required. suspended Despite
for the duration the presence
of the meeting at Colonus
of these laws, "the masses shouted (Thucydides 1996, that it
8.67.2). Thewasrationalemon-for the sus-
strous for anyone not to let the people do whatever
pension was a return to the ideology of innovation,
they wanted," which was to summarily or perhaps an appeal execute
to deliberationthe forgen-
informational
erals (Xenophon, Hellenica, purposes, 1.7.12; trans.
in contrast, intoOstwald
perhaps, the political wrangling
1986, 444). Although the Assembly was temporarily
of the late fifth century.
persuaded to try the generalsThe separately,
Assembly ratified after all of the an ob-which
proposals,
jection was raised by one member, they changed their
were generally oligarchic. They included the abolition
minds and executed the generals. of paymentIn for part, it the
public service, was this
election of archons
tension on the part of the Athenians-on with an appointed Council the
of 400,one
and the hand,
limitation of
to enact whatever they wished whenever
the franchise to 5,000 citizens they chose
(Thucydides 1996,8.67.3).
and, on the other, to restrain After themselves
a final proposal for the from
appointment theirof 100 ana-
worst impulses-that the revision of laws
grapheis (publishers of laws) at Colonus
(Aristotle 1996, 30.1),17
was intended to resolve.
the Assembly was then dissolved. After the support of
the proposals at Colonus, mercenary foreign hoplites
policed the streets of Athens, and the Council of 400
REVISION OF THE LAWS needed weapons to evict the democratic Council; thus,
it appears that the measures did not enjoy popular sup-
The series of revisions began in 411 following the deci-port, but whether that was a cause or an effect, or nei-
sion (under compulsion) by the Assembly to turnther, the of the remote location of the meeting is unknown.
democracy over to oligarchs, which Aristotle (1996, After the overthrow of the oligarchy and the return
29.2) claims was intended to win the support ofofdemocracy in the spring of 410, the Athenians em-
Persia. Despite the pressures that the Athenians were barked upon a comprehensive restoration of the laws,
conducted by appointed anagrapheis. Given the lati-
under, it is unsurprising that they might wish to stabilize
tude that this board would have in determining the
the laws, given the turbulence of the late fifth century.
The reason for the choice to inscribe the centuries-old content of these laws, and the subsequent importance
laws of Dracon and Solon, rather than drafting new
laws, is less obvious, although, again, both oligarchs
'5 Although Thucydides writes of only 10 syngrapheis (8.67), which
and democrats were in agreement that their rules con- Meier (1993, 557) follows. Aristotle's account of the 30 men is con-
stituted the ancient constitution (Hansen 1991, 162).sidered to be more reliable, as by Ostwald (1986, 369).
Inasmuch as there was debate between the democrats 16 Syngrapheis is derived from the verb syngraphein, which means
"to compose in writing." Ostwald (1986) writes that "we should,
and the oligarchs over the content of these laws, for
therefore, expect a syngrapheus to collect facts and materials from
both informational and ideological reasons, it is rea-
various quarters and then weld them into a coherent whole in his
sonably clear that the motivation for the use of these
written report, and what little we know of the activities of syngrapheis
laws was less their prescriptions than the legitimizing
confirms this" (415-16).
force that references to the "ancient constitution" pro-
17 Anagrapheis is derived from anagraphein, or "to write up for dis-
vided. For the oligarchs, the ancient constitution was play
an in public," and Ostwald (1986) suggests that their responsibility
was to prepare the final texts of laws and publish them; moreover, it
explicitly conservative institution, designed to return
appears they had considerable discretion (416-18). Harrison (1955)
Athens to its state before the "populism" of the late fifth
notes that although anagraphein means "to publish," it does not nec-
century. essarily mean "engrave on stone" (30).
318
Athenians would have

of these laws, the accountability ofpermanently entrenched their
the anagrapheis w
essential, and as a result,inscribed
they laws.were
But they did not, and the to
subject commitment
the retr
to pragmaticThe
spective review of euthyna.18 innovation
jobagainof
provides
the the reason.
anagraph
was originally intended to take only four months,
the project quickly expanded from INSTITUTIONS
FOURTH-CENTURY the republication o
the Solonic laws still in force and Dracon's homicide
law to a broader investigation of laws in force which
A distinction between nomoi and psephismata shaped
were perceived as part of the "ancient constitution."
the fourth-century legislative process, called nomothe-
As a result, the revision and the inscription of the laws
sia, by which laws were both enacted and amended. An-
on the Stoa Basileios ("the portico of the king archon"
docides reports a law separating nomoi, or general and
in the Agora [Hansen 1991, 163]) took until 404, when time-unlimited laws, from psephismata, decrees that
a second oligarchic interlude took them out of force. were specific, and/or of limited duration: "No decree
In 403, a final revision specified that the laws were
of the Council or Assembly shall prevail over a law"
again to be in accordance with Solon and Dracon but (Antiphon and Andocides 1998, 1.87). Nomoi were
noted that "anyone who wishes" may suggest revi-higher norms in hierarchical relation to decrees. A
sions; this may remind us of the suspension of graphe psephisma could never contradict an existing nomos,
paranomon prior to the meeting at Colonus. Both the and in fact a psephisma was automatically repealed if
generally oligarchic Assembly in the earlier revision it conflicted with a new nomos (Hansen 1978, 324); the
and the democrats engaged in the later process feared proposer of a new psephisma, if it contradicted a nomos,
that the institution of graphe paranomon quashed the would be subject to graphe paranomon.
ability to improve one's institutions, although even The procedures for creating and changing nomoi
the apparently conservative institution of the graphe were distinct from those governing psephismata. A po-
paranomon enabled the democracy-as embodied tential in psephisma was put forward by probouleuma by
the jury courts-to reconsider the decisions that the the Council (as seen in the fifth century), and the As-
democracy-as embodied in the Assembly-had en-
sembly had the choice of altering, rejecting, or accept-
acted (Ober 1996, 119). Innovation had an ambiguous ing the psephisma.'19 Nomoi were subject to a more
position during this period, as the rhetoric of the "an-cumbersome procedure, in which the Assembly had,
cient constitution," and the desire to preserve the lawsin essence, only an originating role. Moreover, the cre-
of Solon and Dracon, was conservative in the restora-
ation of nomoi always took the form of amending the
tive sense. However, a call for "good suggestions" in the
existing code. The modification of a given law, then, was
decree enabling the revision had the clear purpose of
not considered a piecemeal adjustment, but a change
introducing new institutional alternatives into the poolto the body of legislation as a whole, with the implica-
of available mechanisms. tion that even a small amendment altered in a way the
Two elected bodies were in charge of the revision; nature of the corpus.
the Assembly had no role whatsoever in the creationFirst, a proposal was made by ho boulomenos, any-
of the law which was to be in force subsequently one in who wished, to modify the code, and the Assembly
Athens (Hansen 1991, 163; Ostwald 1986, 512-13). The decided whether a revision might be necessary. If so,
laws were to be inscribed and an uninscribed law had five defenders of the law, who would argue that the
no force, as the decree cited in Andocides, On the Mys- law was adequate as written, would be selected. The
teries, makes clear: "A law which has not been inscribedinstitutional bias is conservative, with a strong aversion
shall not be employed by officials on any matter whatso-to novelty in legislation; this is reflected both in the
ever" (Antiphon and Andocides 1998, 1.87). But afterepigraphical evidence and in the political thought of
Andocides, there are no more references to the Stoathe time. However, the conservatism was tempered by
Basileios; instead, when a source for a law is cited, it is the progressiveness of the mechanism; a law mandated
either a stele or a state archive. Hansen (1991) writesthat one who proposed amending an existing law was
that "the explanation is no doubt that the new revised required to simultaneously suggest an alternative pro-
corpus of laws did not stay unchanged for many years posal (Demosthenes 1935, 24.44).20 Although the pref-
after 400, and corrections became so extensive that the erence was against change, the mechanism encouraged
Athenians had to give up continually republishing themthe introduction of competing solutions.
on stone. The original laws were, thereafter, written Once accepted by the Assembly, the proposal was
on papyrus and kept in the archive; some were alsoposted before the statues of the heroes in the Agora,
copied and published on stone, but the idea of a law-publicizing the measure and allowing ho boulomenos to
code stable enough to be worth engraving in marble say what he wished. The Council exercised its agenda-
was abandoned" (164). setting power to fix the program at the Assembly, in-
Although the process became more complicated,
cluding the submission of a probouleuma, at which a
the ability to change law was retained. Given the ar-
duousness of the revision process that the Athenians
had just undertaken, one might have expected that the 19 Comprehensive discussions of these procedures can be found in
Sealey 1982, passim, and in Hansen 1991, 165-77, especially. Good
primary sources include Demosthenes' (1935) Against Timocrates
(24.21, 24.33) and Aeschines (2000) 3.38-3.39.
18 Harrison (1995, 30) seems to imply that this is yearly, but Ostwald
(1986, 417) argues that the yearly euthyna was suspended for 20ana-
In the classical literature, this is known as the "repeal law"; see
grapheis and were reviewed only when their job was finished. Hansen 1991, 166, and MacDowell 1975, 64.
319
meeting
decision to set up nomothetai of the Boule and one meeting
(law-makers), of the Ekklesia
including
their number and salary, was made.
was enough On
to abolish the day
any existing of fun-
law, however
damental, selected
the hearing, the nomothetai were or to make a newby one,
lothowever
from drastic, was
one of the
among the 6,000 who had taken thingsoath
the which had
of made revolutionfor
jurors easy in
404. What
that year (the "Heliastic Oath," as itwas is
needed was a moreby
known careful check on
classi-
cists, in which the jurors promised legal changes before they took effect"
to render verdicts(48). Although
in keeping with nomoi andtoo-frequent psephismata, changes wereor, if destabilizing,
certainly none not
existed, with their own sense even of
Platojustice)
argued that legislation
(Hansen ought to remain un-
1991,
357; MacDowell 1978, 64). The changed. Given the of
number comprehensive
nomothetai revision of laws
appears to have varied with the that had just been completed,
importance of the the Athenians
mat- might
ter: either 501, 1,001, or 1,501, well have wished to forbid (Hansen
at least their laws to be amended.
1991,
168). The process was turbulent, begun by oligarchs and in-
At a trial-like meeting chaired by a nine-person terrupted via another coup, and the Athenians must
board (proedroi and a foreman, known as epistates have relished its conclusion. Nevertheless, they chose
ton proedron), the law was interrogated. The pro- to preserve the ability to modify their laws, and the
poser speaks first, followed by the five defenders, and commitment to flexibility in the fourth century again
the nomothetai vote on the measure. Thus, whereas derives from the concern that law ought to be able to
psephismata begin with the phrase, "It was decided by contend with changing circumstances.
the people" or "It was decided by the council and the The belief that law ought to be flexible on the grounds
people" (Hansen 1991, 167),21 nomoi have instead, "It of improvability (and overgenerality) is not simply im-
was decided [resolved] by the nomothetai." plicit institutionally but is addressed explicitly in the
With the new distinction between law and decree in philosophical accounts of law in this period. Although
the fourth century came a separation of the procedures Plato and Aristotle both reject regular modifications
for the charges of "unconstitutionality." The graphe on "legitimacy" grounds, each defends the capacity
paranomon was used exclusively for proposers of de- to change law, although in general Plato is far more
crees, in the case that a decree contradicted a law or its skeptical than Aristotle about the advantages of law.
enactment was procedurally invalid; the graphe nomon Ideally, for Plato ([1957] 1992), as argued in Statesman,
me epitedeion theinai addressed proposers of laws, in the true statesman rules without a need for law, but
the case that the law violated substantive legislative given the difficulty of finding such a person, the second-
principles or its enactment violated proper procedures. best option is rule by good laws in the form of a written
Both sorts of accusations could also address concerns code or by "laws that are unwritten but embody ances-
about the broader democratic character of the law. The tral customs" (295a, 297e). The dissatisfaction with law
punishment for graphe paranomon for those convicted derives from its necessarily wide scope, and its con-
was a fine, which could lead to atimia, or loss of citizen-sequent inability to properly specify what is best for
rights. The punishment for conviction of graphe nomoneach member of the community (294a-b). Moreover,
me epitedeion theinai was even more severe; in one the unstable nature of human existence is at odds with
case from Demosthenes (1935, 24.138), the penalty was permanent rules (294b). This does not mean, however,
death. that the laws should keep apace with these changes, or
The rectitude and continued validity of the laws were that anyone who wishes ought to be able to persuade
affirmed at regular intervals by two laws, known as the the city to adopt new laws: The penalty for acts contrary
"inspection law" and the "review law." The inspection to the laws, or for modification of these laws, ought to
law, cited by Aeschines 2000 (3.38-3.40) in Againstbe death or other severe penalties (297e). The change
Ctesiphon (Hansen 1991, 166) requires that the thes-of the laws weakens the force of the laws as a whole
mothetai, a board of six archons, review the law an- and, as such, is a step toward vice.
nually to determine whether there are inconsistencies, The Athenian Stranger offers a scathing satire of de-
duplications, or invalid laws in force and, if so, to post cision making under the Athenian Assembly, in which
them for the people, who may call nomothetai to rectify a rule is made permitting anyone who wishes to advise
the situation. Under the review law, at the first Assem- the Assembly on navigation and medicine, two typical
bly meeting of the year, the entire law-code was putPlatonic examples of spheres in which expertise is cru-
forward for evaluation. If the people chose to rejectcial. The decrees that the Assembly enacts with respect
any section, any citizen could propose a change, and to these matters are to be inscribed, "and some of the
the mechanism for nomothesia, with the appointmentrules so resolved are ordained as unwritten ancestral
of nomothetai, operated as above. The review law, in customs" (Plato [1957] 1992, 298e), perhaps a jibe at
contrast to the institution of the defenders of the law, the efforts by democrats and oligarchs alike to high-
is strikingly progressive. By opening the laws to whole- light certain preferred provisions as part of the ancient
sale revision on a yearly basis, and piecemeal revision constitution. Further, each year magistrates are chosen
as needed, the Athenians reaffirmed their commitment by lot to navigate and tend to the ill and, at the end
to legal flexibility. of the term, are subject to euthyna, or the obligation
MacDowell (1978) notes, "Presumably it was felt that to render accounts (299a). Young Socrates is properly
the old method, by which a simple majority vote at one horrified at the picture before him, and as a result the
Athenian Stranger suggests that instead laws against
21 The formulation in Harding 1985 is "Resolved by ...." inquiring into the legislator's laws and influencing
320
people against the laws ought

(V.10,to be established,
1137b12-23). with
The problem with law is that it is
strict penalties.22 overly broad and, therefore, likely to err in its applica-
This is not to say that changes
tion tomay not
specific cases.be
Thisintroduced.
is not a default of law, nor
However, they may only be enacted
does by the
it imply the fallibility legislator
of the legislator, but rather a
or by a similarly enlightened small
problem group
due to the (asbetween
disjunction no large the particular-
group is capable of acquiring
ity ofany art)
practical matters(Plato [1957] of rules. As
and the universality
1992, 300d-e). The laws area result,
improvable,
where correction as the for
is needed legis-
the sake of eq-
lator takes into account new uity,
information
a modification ofor
the "changing
law is required, by reference
winds" (295d), but only the enlightened
to the will
legislator's intention, if hebe able
would have known
to discern the correct legislative response.
of the particular To rule
case.23 In Politics, a (1998b)
Aristotle
mass of people, then, the second-best course
offers a similar point, of it
noting that action
is inadvisable to
is rigid law, modifiable whenleave
necessary
written laws only by because
unchanged, a legis-whereas law is
lator; ideally, though, flexible and with
concerned specific guidance
generality, by
"actions are concerned with
a true statesman is the preferred solution.
particulars" (11.8, 1269a5).
In Laws, the Athenian Stranger refines
In the fifth century, the the argu-
Athenians ruled mostly by
ment, reiterating that the generality of
particular decrees, legislation
rather will
than general laws, which Aris-
leave certain gaps in the law, which
totle (1998b) the
describes administra-
as the worst kind of democracy
tors of the law ought to repair, with
(IV.4, 1292a). the these
Moreover, assistance
decrees were ofin some
the original legislator, if he is entrenched
cases alive (Plato and then1980,
abrogated,772b-
in what might
c). Experience will demonstratebe viewedwhere these
as Aristotle's holes
worst-case ex-as in the
scenario,
ist, and the administrators caseshould settle
of the 1,000 these
talents. matters
Yet neither Plato nor Aris-
totle(For
yearly, until they are satisfied. rules out the modification
matters of laws; in Statesman,
of sacrifices
and dances, the Athenian Stranger
although theresuggests that to
is a strong preference this
leave laws by
period of experimentation-the tinkering
an enlightened with law
legislator untouched, to
modifications are
ensure a good fit-might be 10 years
ultimately permitted. [772b-c].) After
Although the legal institutions of
this point, the law ought to thebe considered
fourth immutable,
century also reflect a commitment on the part
but the Athenian Stranger cannot entirely
of the Athenians eliminate
to stable the
law, by permitting modifica-
possibility for change. If the
tions"force of
to occur, the circumstances"
Athenians reaffirmed their prefer-
is compelling enough, the enceadministrators
for flexibility, althoughmust con-
in a fashion distinct from
sult the officials, the citizens, and the
the simple-majority oracles
changes of the
of the fifth century. This
gods, and if the verdict is point
unanimous,
is often neglectedthen amend-
in favor of the "sovereignty of
ment is permitted (772d). Thus, specification
law" conception of the
of the fourth century. Sealey (1986),
laws ought to take place and, in fact,
in particular, argues is
thatencouraged
demokratia meant "rule of
to occur by the regularity of law," the
rather process, but only
than "popular sovereignty" in
(146-48).24 Yet
the first few years. After that as Obertime,
argues, if
the the
conceptstate of the
of sovereignty is anachro-
world changes profoundly,nistic laws may
in the be
ancient modified,
world, and in any caseifought not
by a cumbersome process, to to be keep up with
viewed simply circum-
as the institutional locus of legal
stances.
power. Instead, Ober (1996) argues, "The concept of
In Politics, Aristotle emphasizes his concernsovereignty
that can usefully be applied to democracy only
laws not be changed too regularly. Weighing the by ad-
replacing the idea of 'sovereignty as located in insti-
vantages of small improvements over the risks tutions'
of ha- with 'sovereignty as the ability to change insti-
bitual modification, which may lead to disobedience,
tutions" (121). Drawing on Ober's insight, the logic of
he argues that small errors should probably be left
pragmatic innovation is able to provide a foundation
alone. The strength of the law, Aristotle (1998b) argues,
for democratic agency as directed toward the modifi-
is in the habit of obedience supporting it; whereascationaof laws in light of new technical knowledge or
particular art, like medicine or navigation, may becircumstantial
im- change. The Greek world's relationship
proved without risks-other than a potentially to harm-
Athens in the fourth century, as demonstrated in the
ful outcome if enacted by the unenlightened,use as the
of entrenchment, reflected both the institutional
Athenian Stranger claimed-regular innovation changes
in law in Athens and its enduring commitment to
mutable
serves only to weaken law itself (II.8, 1269a12-a20). Aslaw.
Bernard Yack (1993) explains, "The acceptance of legal
limitations rests more on habit than on instrumental
rationality" (184).
23 This nod toward intentionalism is echoed in Rhetoric at 1374b10.
However, Aristotle (1998a) echoes the Athenian
The distinction between changes made by judges and legislative
Stranger's concerns about the generality of law, as in the
amendment is certainly contested. Judicial lawmaking is in this con-
famous passage on equity in The Nicomachean text
Ethics
read as amendment.
24 Josiah Ober (1989) points out this "constitutional law trap" into
which those seeking an exterior rule of law in Athens tend to fall (22)
The argument here is not designed to capture the understanding of
22 As noted above, in the discussion of Sparta, the Athenian Stranger
law on the part of the Athenians in the fourth century, but only to
in The Laws praised the Spartans for the laws forbidding the point
young
out that the institutions of the Athenians in the fourth century,
from inquiring into the relative merits of the law (Plato [1957] 1992,
and the criticisms offered of legal institutions by elites, may have
634d-e). permitted more flexibility than is ordinarily believed.
321
ENTRENCHMENT IN THE FOURTH later injure the city, and the honor should be a special
CENTURY recognition at a given time (often in the form of a
golden crown).
As in the fifth century, the epigraphic record is some-Laws, in general, do not appear to have been en-
what spotty, and it is somewhat difficult to make general
trenched. A particular good example of this phe-
claims as a result: Whereas there are 488 extantpsephis-
nomenon is a law specifying the procedures for silver
mata -although many are so fragmented as to make in- coinage (Harding 1985, 45, pp. 61-64.), roughly analo-
terpretation difficult-there are only eight nomoi. This
gous to the coinage decree in the fifth century. Unlike
is likely due in part to the infrequent publicationthe
offifth-century coinage decree, which is entrenched,
laws on stone, but Hansen (1991) argues that the cre-
the coinage law is flexible. Note also that it has been
ation of nomoi was substantially less common (176).25
elevated to the status of a nomos and is, therefore, not
This does not make analysis impossible, but it does sug-
subject to the potential abuses of the Assembly. Ad-
gest that great care is needed in drawing conclusions.
ditionally, the law provides, as in accordance with the
This is not solely a problem of nonspecialists; classicists
notion of nomoi as hierarchically superior to psephis-
tend to assume that fourth-century provisions included mata, that "if there is any decree that has been inscribed
entrenchment clauses while citing very few cases in
anywhere on a stele (that is) contrary to this law, let it
which they actually appear (Hansen 1991, 165; Lewis
be destroyed by the secretary of the Boule" (Harding
1974, 88) and identify only one entrenched nomos1985,
at a 45, p. 63). Even Eukrates' law against tyranny of
maximum.
337/6, which held that revolutionaries against the peo-
Alliances continued to be entrenched, in general,ple could be murdered with impunity and prescribed
until the middle of the fourth century, and the cases
disenfranchisement (atimia) for magistrates who de-
in which they do not appear to be are decrees that are
liberated during a tyranny-perhaps thereby lending
in generally poor condition (Harding 1985, 43, p. 60)
legitimacy to the tyrants-refrains from entrenching
and, thus, inconclusive. Again, this is a somewhat the democracy.
weaker form of entrenchment, a "for all time" clause,
It may be argued that Demosthenes, in Against Aris-
analogous to the "forever" provision seen in the fifth tocrates, offers evidence of an entrenched law, because
century. But classicists tend to take seriously both "for-
it prescribes atimia for modification of an aforemen-
ever" requirements and specifications that the alliance tioned homicide statute (Hansen 1991, 165). However,
should endure for a particular period; given this, the Lewis (1974, 88) notes that this is actually Drakon's
inclusion of decrees specifying that alliances ought homicide
to law (cited differently, and incompletely, in
endure "for all time" should count as entrenched. The
Fornara 1983) and, as such, perhaps ought not properly
fact that alliances continue to be entrenched is likely to be considered within the scope of fourth-century leg-
attributable to the perception that because alliances islation per se. Moreover, Demosthenes is extremely
were still made by the Assembly and Council, the abil- supportive of unamendable law: Note, for example,
ity for them to commit themselves continued to be Demosthenes' (1935) praise for the Locrians, who
rather shaky. The most famous case of entrenchment in heard arguments for changes of law with a noose
a fourth-century alliance is certainly that of the Second around the proposer's neck (which was tightened if the
Athenian Confederacy (Harding 1985, 35, pp. 48-52.), proposal was defeated), and who thus changed only one
which enabled Athens to become leader of the Greeks.
law in 200 years, is another indicator of his tendency to
The decree provides a penalty for one who proposes reject modification (24.139-143).26
a contrary decree in the form of atimia (loss of civil Despite the sparseness of the evidence, what can we
rights), loss of property, death, and burial neither in make of the possibility that laws, in the fourth century,
Athens nor in allied lands. The remarkably severe form did not include entrenchment clauses, and, moreover,
of entrenchment provided in this decree may empha- that only a single category of decrees, alliances, tended
size the extent to which Athens was perceived as being to use them? The comparatively deliberate procedure
likely to deviate.
of the fourth century might well lend itself to a dimin-
As in the fifth century, honorary decrees remain un- ished usage of these provisions, at least for domestic
entrenched, but the fourth century does offer a non- matters. After all, the procedure for enactment of legis-
Athenian case, from Iasos, of an entrenched honor lation, and for its revision, is lengthy and cumbersome,
(Harding 1985, 114, p. 142). Gorgos and Minnion, sons as shown above. Moreover, the enactment of nomoi
of Theodotus, apparently did good deeds for the city, was a relatively infrequent act. As such, if entrench-
not the least of which was the recovery of an inland lake, ment clauses once served to flag provisions that were
and were rewarded with an exemption from taxation especially crucial, in the context of a single, simple-
and the front seat at public festivals for all time. The majority procedure covering all legislation, the need
presence of such an entrenched honor suggests that the for this sort of identification could be replaced by the
decision to leave honors without entrenchment clauses
use of nomoi. The need for a cooling-off process, simi-
in Athens was intentional; by leaving the honor flexi- larly, was diminished when a slower lawmaking process
ble, it recognizes that the recipient of the honors may
25 An eighth law has been published recently in Stroud (1998). The 26 For example, as seen above, Hansen (1991) argues that Demos-
bulk of the evidence provided in Harding (1985) is overwhelmingly thenes wrongly characterizes the propensity of the Athenians to en-
in the form of decrees, and the general claims derived from decrees act nomoi and marvels at scholars' willingness to "put uncritical trust"
are more reliable. in Demosthenes (176).
322
was developed, as was any possible affords us (Yackdesire for

1993, 18). precom-
The potential risks of le-
mitment. Externally, though, the Athenians
gal flexibility are obviously muchwere still
graver when people's
perceived as untrustworthy democrats, rights and lives are and as Yet
at stake. such
this isthe
no reason to
entrenchment clause continued dismiss to serve
theoretical as grounded
inquiry a means by re-
in historical
which they could signal theirsearch commitment to potential
as dangerously indulgent. Instead, Athens pro-
allies.
vides us with an opportunity to investigate a link be-
Although the legislative procedure became more tween democratic innovation and legal flexibility with
complicated in the fourth century, it is essential to keep some insulation from the language and preconceptions
in mind the enduring commitment to flexibility, which of contemporary debates over constitutionalism. Al-
could easily have been jettisoned after the disasters though we cannot be insulated from the distortions of
of the late fifth century and the subsequent revision our contemporary perceptions, we can at least attempt
of the laws. The reason for why they did not may be to unpack the institutions and ideas enveloping Athens
found in the enduring Athenian commitment to prag- as carefully as possible and, having done so, reevaluate
matic innovation. In the cases in which entrenchment our assumptions in light of our findings.
appears, it appears to derive from the concern that theTwo key insights about democracy result from this
Athenian tendency to adjust its institutions in light of
analytical process. The first is the fact that although
new information may leave both Athens and its allies at least some institutional commitments are certainly
vulnerable.
necessary for democratic agency, the ability to modify
any institutions has long been viewed as the preroga-
tive and as even a defining characteristic of democracy.
DEMOCRACY AND LEGAL CHANGE Since this capacity leaves prospective allies nervous,
however, democracies may occasionally have recourse
The Greeks, we have seen, both envied and feared the to hyperconstraining devices, such as entrenchment, to
Athenian ability to innovate. Although, as Thucydides signal that they at least intend to take seriously a par-
suggests, this quality enabled Athens to succeed inticular commitment. Yet the faith that allies ought to
the military arena, it nevertheless undermined Athens'have in a democracy that views change as fundamen-
ability to create alliances with other city-states and en-tal is, of course, limited, and as a result, a prospective
sure that its choices could be sustained in even the shortally's decision to embark on a particular alliance may
term. Yet by the time of the revision at Colonus, the be made on grounds other than trustworthiness, such
Athenians were well aware of the pernicious potential as the relative power of the partner.
of flexible law and, nevertheless, decided to reaffirm The concern that Athens would amend ostensibly
the use of mutable law, if with some procedural checks. entrenched clauses was not restricted to prospective
Here, I have offered an account of Athens as motivatedallies: The Athenians understood that the law would be
unable to restrain a determined demos. The Athenians'
by the ideology of pragmatic innovation, which initially
appeared to contradict my findings from an analysis ofprescription of death, in certain cases, for proposing an
entrenched law's amendment suggests that they knew
entrenched decrees in fifth- and fourth-century Athens.
The effort at entrenchment should not be viewed gener-well that an effort to change the law might succeed,
ally as an attempt at precommitment, I have suggested,so that an additional, individualized barrier to modi-
fication was necessary. Yet even this constraint could
but as a check on a body with the potential to exploit
informational asymmetries, the fifth-century dema- be overcome, as the discussion of the thousand talents
gogues, and as a sign of seriousness to prospective alliessuggests, in light of changed circumstances. As a conse-
who had little confidence that Athens would be faithful. quence, Athens could not have reasonably anticipated
To all this, however, some political scientists may ask,
that entrenchment would prove an infallible barrier to
Why should the details of Athenian institutions inter- efforts at change; in fact, they could not have believed
est us, other than mere antiquarianism? One reason that any such barrier could possibly exist. Entrench-
is that Athens has occupied a distinctive place in po- ment constituted a concerted effort on the part of the
litical science as the exemplar of classical and "direct"
Athenians to signal both to themselves and to others
democracy. The authors of the Federalist Papers repeat-the importance of a particular norm or treaty but could
edly reflected on the "turbulent democracies of ancientnot credibly have been regarded as an effective means
Greece" (Hamilton, Madison, and Jay [1788] 1961, 14, of self-binding.
101); Madison famously wrote, "Had every Athenian The second implication of the discussion of Athens
citizen been a Socrates, every Athenian assembly wouldis that the use of entrenchment in the contemporary
still have been a mob" (55, 342). Today, we still tend to world may be both more strategic and less effective
project both our aspirations and our misgivings about than constitutional designers and theorists have tended
democracy on Athens, while simultaneously relying onto believe. The most famous use of entrenchment is
our conceptions of Athens to provide us with source the protection of the human dignity clause in the post-
material for normative accounts of democratic decisionWorld War II German Basic Law. However, we should
making. It therefore remains important to try to get not believe that entrenchment can only be used to pro-
Athens right, to accurately portray its institutions andtect individual rights or fundamental institutional ar-
its ideologies, lest it distort our models of democracy. rangements. Rather than shielding these types of laws
A second reason, closely related to the first, is the from modification, entrenchment may serve a narrower
"critical, distance" that reflection on ancient cultures
instrumental purpose, securing instead the outcomes
323
of controversial bargains or even

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325

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Athenian Democracy and Legal Change

Author(s): Melissa Schwartzberg

Athenian Democracy and Legal Change

ecent work on ancient AthensInhas complicated,

overwhelm them; the singleEachcase

for their self-conception?"constitutional One answer provisions,"may

FIFTH-CENTURY ENTRENCHMENT The explanation for the entrenchment of alliances

fearful that the Athenians might violate

Some financial decrees whowere

capacity to reverse course tookThe

Athenians would have

people against the laws ought

was developed, as was any possible affords us (Yackdesire for

of controversial bargains or even

r .er, T. T. B. 1965. Koine Eirene. Thucydides.

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