THE LEGAL REFORMS AT THE END OF THE fiFTH CENTURY 147

were in any case modest because the reforms did not change the ad hoc nature of jury decision making) were outweighed by the reduction in the respect for and authority of the laws.125

NOMOTHESIA

The process of lawmaking in the fourth century, known as nomothesia, was also designed in part to foster coherence and consistency in the Athenian corpus of laws. It is not clear when the nomothesia procedure was introduced, but it may have been conceived as part of the legal reforms and enacted sometime not long after the revision of the laws of 403–399.126 The three laws concerning nomothesia that are most interesting for our purposes are the “review,” “repeal,” and “inspection” laws.127 The “review law,” quoted in Demosthenes Against Timocrates, provided that each year the Assembly was to reconsider the entire body of laws and vote on whether to retain or reject each law.128 If any law was voted down, anyone who wished could make a proposal to replace the old law. A board of nomothetai (chosen by lot from the jury pool, unlike the one-time board of nomothetai involved in revision of the laws from 403–399) heard arguments and decided whether to accept the new proposal or retain the original law. Under the “repeal law,” any citizen could at any time, on his own initiative, make a proposal to replace an old law with a new one to be considered by the nomothetai.129 The “inspection law” described in Aeschines Against Ctesiphon provided a procedure for eliminating inconsistent laws. Under this measure, the thesmothetai were charged with examining the laws and informing the Assembly “if any written law is contrary to any other law, or if an invalid law is included among the valid ones, or if more than one law has been written on the same subject.”130 In such a case, the Assembly arranged for a board of nomothetai to sort it out.

125The Athenian approach to legal consistency may not be as foreign as might at first appear. In modern legal theory judicial consistency is generally justified either as a requirement of fairness, and thus an end in itself, or merely as a policy that serves to enhance the authority of the law and the predictability of decisions.

126Hansen 1999:165–166. Some scholars have argued that the various surviving laws relating to nomothesia were introduced gradually throughout the fourth century. For discussion, see D. M. MacDowell 1975; Rhodes 1985; cf. Hansen 1985.

127There is some dispute as to whether or not there were additional laws related to nomothesia. See Hansen 1985; MacDowell 1975; Rhodes 1985.

128Dem. 24.20–23.

129Dem. 24.33.

130Aesch. 3.38.

148 LEGAL INSECURITY IN ATHENS

Unlike the revision of the laws, nomothesia remained in force throughout the period of Athenian independence and, in some scholars’ view, had a profound impact on the nature of the Athenian democracy. By taking the power to make laws out of the hands of the popular Assembly, so the argument goes, nomothesia contributed to the transition in the early fourth century from a radical to a more moderate democracy.131 However, the effect of nomothesia on the workings of the legal system was much more limited: although nomothesia fostered some coherence and consistency among the laws,132 this process did nothing to alleviate the uncertainty and inconsistency caused by the highly particularized, ad hoc nature of popular court jury decision making.

It seems that the problems created by legal insecurity, serious though they were, were not troublesome enough to trigger changes in the basic workings of the popular courts. Apparently there was no political will to limit the popular court jury’s discretion in order to create greater legal certainty and to improve the capability of the law to guide conduct. In the next chapter, we will see that in one area of law – maritime suits – the costs associated with contextualized justice outweighed the benefits, and steps were taken to narrow the range of evidence considered relevant to the jury in an effort to enhance the predictability of verdicts.

131 For the argument that the distinction between the nature of fifthand fourth-century Athenian democracy is overdrawn, see Ober 1990:95ff.

132The Athenians were not entirely successful at avoiding inconsistencies: Demosthenes and Aeschines introduce conflicting laws regarding the awarding of honorary crowns. Compare Dem. 18.120–122 with Aesch. 3.32–48. For discussion, see Rhodes 1980:306.