NOMO´THETES
NOMO´THETES (
νομοθέτης), legislator, is a word which may be applied to any
person who causes laws to be enacted (
ὁ νόμον
καινὸν εἰσφέρων, Schol. on Dem.
Olynth. iii.
p. 31.10). Thus, Pericles and Themistocles are called
νομοθέται, movers or proposers of laws (Lys.
c.
Nichom. § 28;
c. Phil. § 27,
etc.). It is, however, more commonly given to those eminent men whose laws
have been celebrated for their intrinsic merit, or for the important
influence which they exercised over the destinies of their country. Such
were Minos of Crete (Plat.
Min. p. 318 C);
Zaleucus at Locri; Charondas at Catana, whose laws were adopted by the
Chalcidian cities in Sicily and Italy (Arist.
Pol. 2.9 [12 B.], 8, praises his laws as superior to all others
of his time in accuracy of definition and fineness of discrimination; they
were sung
παρ᾽ οἶνον Κατάνησι,
Philologus, v. p. 421, i. e. at Catana, not
Ἀθήνησι, the usual text in
Athen. p. 619 b); Draco at Athens
(Dem.
c. Tim. p. 765.211); Pittacus of Lesbos; Androdamas of
Rhegium (Arist.
Pol. 2.9 [12 B.], 9), etc. But
the name of
νομοθέτης is given
κατ᾽ ἐξοχὴν to Lycurgus and Solon; for they
were also founders of
constitutions (
πολιτεῖαι, Arist.
Pol. 2.9 [12 B.], 1). So high was the esteem in which Solon was
held by the Athenians as the founder of their social polity, that although
many important reforms were effected at various periods, he still continued
to be regarded as
the lawgiver, and the whole body
of laws passed under his name (Meier,
de Bon. Damn. p. 2).
As pointed out in
NOMOS Solon did
not endeavour to secure fixity and finality for his laws. Zaleucus (Dem.
c. Tim. p. 744.139;
Plb.
12.16) discouraged changes in his laws by the regulation that he who
proposed a new law had to bring the matter before the council with a cord
about his neck, and was to be put to death if his proposal was negatived
(
Diod. 12.17 ascribes this regulation to
Charondas). When Lycurgus went on his last journey from which he never
returned (so the story runs), he bound his countrymen by an oath to observe
all his laws till his return (
Plut. Lyc. 29).
Solon exacted a similar oath of the Athenians for ten years only (
Hdt. 1.29; for a century,
Plut. Sol. 25), and devised certain formalities for repealing an
existing law and enacting a new one (Dem.
c. Lept. p. 484.89
f., p. 485.93; Aeschin.
c. Ctes. § 38 ascribes them
τῷ νομοθέτῃ τῷ τὴν δημοκρατίαν
καταστήσαντι). Grote (
Hist. of Gr. iii. p. 123
f.) doubts whether Solon made any such provisions (as we find in operation
in the time of Demosthenes), and refers “to post-Solonian matters in
the supposed Solonian law, e. g. to the regulation (Dem.
c.
Tim. p. 707.23) that the proposer had to put up his project of
law before the Eponymi.” Of course this regulation cannot have
proceeded from Solon, but the existence of such post-Solonian matters may be
admitted without giving up the main point, viz. that it was Solon who laid
down the principle of periodical revision of the laws (Schömann,
Verfassungsgesch. Ath. p. 57).
1
[p. 2.242]
The method of procedure at the
ἐπιχειροτονία
νόμων was as follows:--At the first assembly of the first
prytany, i. e. on the eleventh of Hecatombaeon, after speeches recommending
new laws and defending the old ones had been delivered, the question was put
to the vote (
χειροτονία) whether the laws
should be confirmed as they stood or be revised. The laws were submitted in
groups, according to Dem.
c. Tim. p. 706.20,
lex: first
οἱ
βουλευτικοί, i. e. those concerning the
βουλή; secondly,
οἱ
κοινοί, then
οἳ κεῖνται τοῖς ἐννέα
ἄρχουσι, and
οἱ τῶν ἄλλων
ὰρχῶν--evidently arranged according to the different magistrates
who had to administer them, though the term
οἱ
κοινοὶ νόμοι is not clear in this connexion. If a revision
of one or more groups of the laws was voted for, in the third assembly
following, the appointment of
νομοθέται was
taken into consideration (
σκέψασθαι καθ᾽ ὅ τι τοὺς
νομοθέτας καθιεῖτε,
l.c. p. 707.25), viz. their number and the length of
their session, and how their pay was to be provided. In the interval those
who wished to propose a new law had to put up a copy of it before the
statues of the Eponymi (
l.c. p. 705.18; p. 708.25;
p. 711.36), that every one might have an opportunity of seeing it; and to
give it still further publicity, they had to hand a copy to the secretary of
the senate to have it read out at the intervening assemblies (Dem.
c.
Lept. p. 485.94), probably together with the old law which it
was intended to replace (
παραναγνούς, Dem.
c. Tim. p. 712.38). The popular assembly was thus enabled
to form an opinion as to the extent and nature of the revision, and
accordingly to fix the number of the
νομοθέται to be selected by lot from among the heliasts, and to
determine their term of office; for the nomothetae were not a standing
committee of the heliasts with their own
ἐπιστάτης and
προέδροι
(Fränkel,
d. Att. Geschworengerichte, p. 23 f.), but
were chosen
ad hoc, and their number was
probably not uniform (a thousand, as Pollux, 8.101, says), but seems to have
varied according to the importance of the laws under consideration. The
number of nomothetae given in Dem.
c. Tim. p. 708.27, is
1001; in Andoc.
de Myst. § 84, it is 500 (Blass
reads here
ἡ βουλὴ οἱ πεντακόσιοι καὶ οἱ
νομοθέται instead of
ἡ βουλὴ καὶ οἱ
νομοθέται οἱ πεντακόσιοι). At the same time as the
nomothetae (not at the first assembly, Dem.
c. Tim. p.
707.23) five
συνήγοροι (
l.c. p. 711.36; Dem.
c. Lept. ed. Wolf,
Proleg. p. 145) were chosen to argue in defence of the
laws which it was proposed to repeal (not five
συνήγοροι for each law, as the Schol. on Dem.
c.
Tim. p. 707.23, says). Before the nomothetae were called upon to
give their final decision, the proposed laws were examined by the senate
(
συννομοθετεῖν δὲ καὶ τὴν βουλήν
(
l.c. p. 708.27,
psephisma); cf. [Xen.]
de Rep. Athen. 3.2,
τὴν δὲ βουλὴν βουλεύεσθαι (
δεῖ) . . .
πολλὰ . . .
περὶ νόμων θέσεως, and Pollux, 8.101,
τοὺς γὰρ νέους (sc.
νόμους)
ἐδοκίμαζεν ἡ βουλή,
etc.); and if we may take the revision of laws in B.C. 403 as an. example,
the senate performed this duty by themselves, not in conjunction with the
nomothetae. The meetings of the nomothetae resembled the assemblies of the
people: the prytanes convened them;
προέδροι presided over them, probably appointed in the same way,
viz. by lot one from each of the non-presiding tribes, and their
ἐπιστάτης chosen by lot from among themselves.
The statement that the
προέδροι put the
question to the nomothetae (Dem.
c. Tim. p. 710.33; p.
723.71) is not “a blunder on the part of the compiler;” they
are mentioned in
C. I. A. ii. No. 115b,
ἐν δὲ τοῖς νομοθέταις τοὺς προέδρους οἳ
ἂν προεδρεύωσιν καὶ τὸν ἐπιστάτην προσνομοθετῆσαι,
etc. The law in favour of which the nomothetae voted, whether the
established law or the proposed one, was
κύριος.
Besides this, the thesmothetae (
καλοῦνται δὲ οὕτως,
ὅτι τῶν νόμων τὴν ἐπιμέλειαν εἶχον, Harpocr. s. v.)
of each year were directed to examine the whole code of laws (
διόρθωσις τῶν νόμων), and to see if there were
any laws contradictory or useless (Aeschin.
c. Ctes.
§ 38; Dem.
c. Lept. p. 484.90; Harpocr. and Photius,
s. v.). If they found such, they had to put up copies of them before the
statues of the Eponymi, the prytanes had to, convene an assembly of the
people for the appointment of nomothetae (
ἐπιγράψαντες νομοθέτας), and the
ἐπιστάτης τῶν προέδρων had to submit the laws to the
decision of the nomothetae. The usual text of the last clause is
τὸν δ᾽ἐπιστάτην τῶν προέδρων διαχειροτονίαν διδόναι
τῷ δήμῳ:
τῷ δήμῳ is,
however, wrongly repeated from the previous paragraph. It is clear from what
follows,
τῶν δὲ πρυτάνεων ἀποδόντων τοῖς
νομοθέταις ἀνῄρητ᾽ ἂν ὁ ἕτερος τῶν νόμων, that the
nomothetae, not the assembly of the people, would have repealed the law.
(Höffler,
de nomothes. Att. p. 10, connecting this
passage with Photius' explanation of
νομοθέται, strangely supposes that the whole people when engaged
in the revision of the laws might be called
νομοθέται.) The proceedings in the
ἐπιχειροτονία τῶν νόμων and in the
διόρθωσις are therefore only different in this respect, that
in the former any citizen so disposed, in the latter the thesmothetae in
their official capacity, proposed the repeal of a law.
If, after the repeal of an old law by the nomothetae, it was found that the
law proposed in its stead was not expedient (
οὐκ
ἐπιτήδειος) for the Athenian people, or was contrary to any
of the established laws (
lex in Dem.
c.
Tim. p. 710.33), the proposer was within the limit of a year
liable to prosecution (Dem.
c. Lept. p. 501.144;
argumentum, p. 543). (Schöll,
Ueber
attische Gesetzgebung, Sitzungsber. Akad. München,
1886.) [
PARANOMON
GRAPHE]
These regulations for the revision of laws were not always observed; e. g.
Demosthenes (
Olynth. iii. p. 31.10 f.) recommended the
appointment
[p. 2.243]of nomothetae for the special purpose
of repealing the laws concerning the theoric fund; one of the charges
against Timocrates was that he induced the people to appoint nomothetae out
of the usual time, viz. on the day following the first assembly of the year
(p. 706.18; p. 708.26; cf.
c. Lept. p. 488.91). The practice
had grown up of passing legislative measures in the shape of decrees,
dispensing with the regular course of law. The mere resolution of the people
in assembly was a
ψήφισμα; such decrees
were originally measures of government, relating to individuals, or to
particular occasions, e. g. for the despatch of an embassy. They had indeed
the force of laws so far as regarded the obedience due to them, and
sometimes
νόμος and
ψήφισμα seem to be used indiscriminately, e. g. Ps.
Plut. Vitt. X. Oratt. p. 481
E f., and Aelian,
Ael. VH 13.24
(Schömann,
de Comit. p. 249), but one
psephisma might be set aside at any time by another. It was ordained by a
decree of the people that no free Athenian could be put to torture, but
Peisander urged the Athenians to set it aside (
λύειν
τὸ ἐπὶ Σκαμανδρίου ψήφισμα, Andoc.
de
Myst. § 43: cf. [Dem.]
c. Aristog. i. p.
784.47
Att. Process, ed. Lipsius, p. 896, n. 372).
Andocides quotes the law:
ψήφισμα μηδὲν μήτε βουλῆς
μήτε δήμου νόμου κυριώτερον εἶναι (
de
Myst. § § 87, 89; cf. Dem.
c.
Aristocr. p. 694.87;
c. Tim. p. 709.30); as long as
this law was observed, the democracy was one of the kind in which (as
Aristotle,
Pol. vi. [iv. B.], 4, 3, says)
κύριος ἦν ὁ νόμος, ἀλλ᾽ οὐ τὸ
πλῆθος: but later on things changed:
κύριον ἦν τὸ πλῆθος, ἀλλ᾽ οὐχ ὁ νόμος,--a change
brought about
ὅταν τὰ ψηφίσματα κύρια ᾖ ἀλλὰ
μὴ ὁ νόμος, συμβαίνει δὲ τοῦτο διὰ τοὺς δημαγώγους
(cf. Dem.
c. Lept. p. 485.92,
ψηφισμάτων δ᾽οὐδ᾽ ὁτιοῦν διαφέρουσιν οἱ νόμοι: Xen.
Hellen. i 7, 12,
τὸ
δὲ πλῆθος ἐβόα δεινὸν εἶναι εἰ μή τις ἐάσει τὸν δῆμον
πράττειν ὃ ἂν βούληται: [Dem.]
c. Neaer.
p. 1375.88,
ὁ γὰρ δῆμος ὁ Ἀθηναίων κυριώτατος
ὢν τῶν ἐν τῇ πόλει ἁπάντων καὶ ἐξὸν αὐτῷ ποιεῖν ὅ τι
ἂν βούληται, etc.; Hermann,
Griech.
Staatsalt. § 67, n. 8). Like other despotic sovereigns, the
Athenian people claimed “a dispensing power” of overriding the
law upon occasion; and their advisers, the professional statesmen and
orators, were as such the “keepers of the royal conscience,”
and liable to severe punishment if their master's conscience consequently
reproached him with what he had done at their bidding (Dem.
c.
Androt. et Tim. ed. Wayte, Introd. p. xxxiv.). The same
Athenians who declared it intolerable that the people should not be allowed
to do as it pleased them, repented soon of their decree and directed a
prosecution of those who had advised it. However, proposing decrees paid the
ῥήτορες well and was worth some risk:
Demosthenes and Demades are said to have made more than 60 talents each
ἀπ᾽ αὐτῶν τῶν ἐν τῇ πόλει ψηφισμάτων καὶ
προξενιῶν (Hyper.
c. Dem. col. 23: cf.
Dinarch.
c. Dem. § 41 ff.).
[
C.R.K] [
H.H]
