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Although the oligarchic revolutions provided the impetus for reform, the nature of the reforms suggests an attempt to address the longstanding problem of inconsistency and uncertainty in the laws as well. The paucity of our evidence and the difficulties involved in interpreting our literary sources103 make it impossible to determine the precise extent and aims of the legal reforms with any certainty. But the conclusion that the Athenians were striving for coherence, or at least the absence of contradictions, in their legal rules seems beyond doubt. We depart here from a largely synchronic study of the legal system to examine the legal developments of a single decade not because the reforms had an important impact on the functioning of the courts – in fact, we will see that the various reform measures were either short lived or ineffective. Rather, this episode is of interest because in the attempts at reform we can see both a widespread ambivalence about the uncertainty inherent in the legal system, and the limits of Athenian willingness to alter their legal system to reduce legal insecurity.

THE REVISION OF THE LAWS, 410–404 AND 403–399

Soon after the restoration of the democracy in 410, a board of magistrates known as anagrapheis was set up to research and write up the laws. According to Lysias Against Nicomachus, this board, which included Nicomachus, was instructed “to write up the laws of Solon.”104 A separate decree of 409/8 also ordered the anagrapheis to republish Draco’s law of homicide.105 Modern accounts of the legal revisions tend to interpret the evidence in one of two ways.106 For some, the board was charged with collecting and publishing only the laws of Solon and Draco that were

103Our two main literary sources for the reforms are Lysias Against Nicomachus, and Andocides On the Mysteries. Against Nicomachus concerns the prosecution of Nicomachus, who served in 410–404 and again in 403–399 as one of the officials involved in collecting and publishing the laws as part of the reforms. Because this speech accuses Nicomachus of overstepping his powers, it may exaggerate the actions taken by the board on which Nicomachus served, and/or understate the mandate given to this board. On the Mysteries discusses at some length the second phase of the reforms that began in 403. Andocides was involved in a religious scandal in 415, and as a result was barred from attending the Eleusinian Mysteries. In this suit, Andocides is charged with breaking the ban in 400 or 399, and Andocides argues in part that the original provision banning him from participation, along with all other laws passed prior to the reforms of 403, was made invalid by the revision of the laws. It is therefore in his interest to portray the reforms as a sweeping revision of the entire law code.

104Lys. 30.2.

105IG i3 104.5–6.

106Robertson (1990) has proposed a third interpretation, namely that the anagrapheis were appointed to transcribe all the laws for Athens’ new central archive, and did not permanently “publish” the body of laws, but merely, during the second phase of reforms, temporarily posted individual statutes for

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currently in force; that is, the anagrapheis replaced those Solonian or Draconian laws that had been clearly superseded by later legislation,107 but otherwise did not concern themselves with valid laws unrelated to subjects addressed by these ancient lawgivers.108 On this view, the revisions were aimed at collecting the valid laws of Solon and Draco in one place109 and eliminating inconsistencies that had developed in one part of their statute law, but did not include an attempt to publish a single, comprehensive, and coherent body of law.

However, because the phrase “the laws of Solon” is commonly used to refer to the Athenian laws in general, it seems likely that the Lysias passage should be interpreted somewhat more broadly to mean that the anagrapheis were charged with collecting all the laws currently in force and publishing them in a single place.110 This broader account of the mission of the board gains strength from epigraphical evidence suggesting that the anagrapheis did in fact write up recent laws in addition to the laws of Solon and Draco.111 If this interpretation is correct, the legal reforms of 410 were aimed in part at producing a single, consistent code of laws that would foster legal certainty by eliminating obvious inconsistencies among statutes. However, this reform did not address the indeterminacy and inconsistency created by the application of the laws by juries in court cases. The process of revising the laws was terminated six years later when the Thirty Tyrants came to power.

When the democracy was restored in 403, the anagrapheis were reappointed for a second term to continue their work. It seems likely that the revision of the

inspection. This provocative thesis has thus far not won many adherents. See, e.g., Rhodes 1991:91; Todd 1996:128.

107The prosecutor in Lysias 30 states that Nicomachus not only collected and published the laws but also deleted regulations he found in his research (Lys. 30.2). The speaker implies that deleting laws went beyond the mandate of the anagrapheis, but it is more likely that one of the functions of the board was to discard outdated, inconsistent, or redundant laws. For discussion, see Todd 1996:109.

108E.g., K. Clinton 1982.

109Laws were inscribed on stone stelai and generally displayed near the offices of the relevant magistrates (Todd 1993:56 & n.7). As a result, the texts of laws were scattered throughout Athens. Sometime around the end of the fifth century, a public archive was constructed to house copies of the laws (Boegehold

1972).

110Sickinger 1999:98. Other, slightly different, accounts that also posit the revision of all the laws then in force include Rhodes 1991 and Hansen 1999:162–163. Presumably the anagrapheis ignored nonce enactments, like honorary decrees, in the process of revision (Rhodes 1991:91–92).

111Inscriptions on stelai that scholars have associated with the anagrapheis’ first term from 410–404 include laws recent enough to mention the trierarchs and the dikastˆerion (Rhodes 1991:90).

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laws was completed fairly soon after reappointment, as the anagrapheis appear to have devoted much of their second term to producing a sacrificial calendar which survives in fragmentary form.112 Our most important source for the second phase of legal reform is Andocides’ speech On the Mysteries. In the course of his defense, Andocides quotes a decree moved by Teisamenos in 403 that outlined which laws were valid in the restored democracy. The decree provided in part that the Athenians should be governed in accordance with tradition, using the “laws of Solon” and “the decrees of Draco which we used in the past.”113 The “laws of Solon” and “decrees of Draco” in this statute probably refer to the revised code of laws collected and published by the anagrapheis.114 The decree also describes a process for vetting new laws: two boards of nomothetai were set up, one, elected by the Council, proposed laws and temporarily displayed them in public, while the second, selected from the demes, voted on whether to ratify each law and add it to the code.115 Andocides claims that all the laws were examined through this process before being included in the new law code, and some scholars have taken him at his word.116 But a straightforward reading of the decree itself (rather than Andocides’ interpretation of the decree) suggests that the laws published by the anagrapheis were automatically included in the new code and only new laws that were deemed necessary additions to the code underwent this examination and ratification procedure.117

Andocides also quotes a series of related laws, two of which are of interest here. “The magistrates shall not use an unwritten law concerning any matter;” and “No decree, whether originating from the Council or the Assembly, can supersede a law.”118 The first law is generally interpreted to mean that magistrates were to enforce only the laws that were written up by the anagrapheis and amendments ratified by the nomothetai; other laws that were not included in the revisions were now void.119 The second law created a distinction between laws (nomoi) of general application included in the new law code, and decrees

112Sickinger 1999:99.

113Andoc. 1.83.

114Rhodes 1991:97.

115Andoc. 1.83–84.

116E.g., Hansen 1999:163.

117MacDowell 1962:194–199.

118Andoc. 1.87.

119E.g., Rhodes 1991:97; Sickinger 1999:100.

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(psˆephismata), which were generally temporary or more specific enactments passed by the assembly and could not contravene a valid law. Taken together these laws indicate that the laws collected and published in the process of legal revision were intended to be an exclusive, authoritative law code that could not be contravened by the assembly alone (the elaborate process for amending a law or creating a new law after the completion of the codification is discussed below). The revision of the laws from 410–399 thus attempted to eliminate inconsistent, outdated, or redundant laws, and to create a single, at least superficially coherent law code.

The codification should have alleviated the legal uncertainty in Athens to some degree by providing a single, authoritative collection of laws in a central location that could be consulted by litigants.120 But the law code is not mentioned again after Andocides’ speech in 400. When litigants do state their source for a law, they mention either the individual stele or the archive where copies of laws were kept.121 I find the interpretations of the revisions put forward by Hansen and Todd most plausible: the Athenians did indeed strive for legal codification in 403 in an attempt to increase consistency and coherence among their body of legal rules, but seem to have abandoned the idea almost immediately.

We cannot know for certain why the Athenians became so quickly disenchanted with codification. It seems likely that the completed code did not remain unchanged for long and required numerous amendments and additions.122 Perhaps the process of constant revision and republication of the laws seemed impractical.123 More attractive is Todd’s speculation that the public process of constant revision of the law code would highlight the reality that the Athenian laws were not, in fact, the unchanging ancestral laws of Solon and Draco, but were in constant flux. Todd suggests that “the Athenians collectively preferred chaos and a sense of continuity to coherence at the price of admitting change.”124 Stated another way, the Athenians may have felt that the authority of the law was diminished rather than enhanced by codification, and that the gains in legal certainty (which

120Some scholars who characterize the legal reforms as a “codification” of the laws nevertheless doubt that all the laws were published on stone in a single location. See, e.g., Rhodes 1991:98–99; cf. Hansen

1999:163–164.

121E.g. Dem. 59.75–76 (stele); Dem. 25.99 (archive); Lyc. 1.66 (archive).

122Hansen 1999:164.

123So Hansen 1999:164. He suggests that once codification was abandoned new laws were kept in the archive on papyrus and that some were also inscribed on individual stone stelai.

124Todd 1996:130.