The legitimacy of a democratic constitutional order is grounded in the people’s authority, and yet popular decision-making is exercised through specific procedures protecting higher and entrenched norms.[1] To protect these constitutional provisions, most modern democracies have adopted systems of judicial review of laws, that is, they have assigned the courts the power to assess the constitutionality of new legislation. As is well known, in fourth-century Athens, all decrees (psēphismata) had to conform to the laws (nomoi) (And. 1.87; Dem. 23.218). This hierarchy was enforced in court by a public action against illegal decrees (graphē paranomōn), while the public action against unsuitable laws (graphē nomon mē epitēdeion theinai) checked the coherence of new laws with the system of the laws. Yet, whether these features of the political order of Classical Athens conformed to any modern standard of constitutionalism or if the Athenians developed (or not) their own model has fascinated and troubled generations of scholars.[2]
In this book, Edwin Carawan aims to bring into ‘better focus’ the long scholarly debate about lawmaking (nomothesia) and judicial review of the Athenian democracy, and, at the same time, to reflect on the debate about constitutionalism in the United States (2). This is an important topic that was as central to the Athenian political community as it is to modern democracies. Through an impressive command of a large bibliography on the topic and a series of preliminary studies, the author builds a twofold case. First, Carawan argues that Athenian fourth-century lawmaking and the procedures for judicial control of legislation changed significantly throughout the fourth century towards a simpler procedure. Second, the author claims that these very procedures did not constitute a genuine system of judicial review. The Athenians did not have any higher legal principles binding popular power that could be resorted to in court (8). As Carawan points out, it was litigants’ appeals to the ethos of the community that determined how the laws were to be applied (246).
In the introduction ‘The People and the Law – Demos and Nomos’, Carawan highlights the difference between the Athenian model and American judicial review and situates his positions within the relevant scholarship, especially vis-à-vis Wolff’s seminal book on ‘Normenkontrolle,’ which showed the prominence of arguments from constitutional principle in Athenian judicial review (9).[3] The core of Carawan’s book consists of nine chapters and a conclusion, organized in three parts: I. ‘Legislative Procedure and Court Control’, II. ‘The Constitutional Window’, and III. ‘The Crown Case and its Antecedents’.
Part I is dedicated to a detailed and erudite, yet often cryptic, discussion of the procedure(s) of lawmaking and the relationship between the lawcourts and legislation (21-95). In chapter 1, Carawan returns to MacDowell’s view that Dem. 20.89 describes a complex ‘old legislation law’ (palaios nomos) and reflects a procedure that was no longer applied after 375 BCE.[4] According to Carawan, a simpler ‘fast track’ procedure, modelled on the standard decree-making procedure, emerged in the 370s (34-38). In a similar fashion, in chapter 2 Carawan argues that the system of appointing the courts changed to be more representative, and he identifies—with very tenuous arguments—the nomothetai in charge of passing the new laws with an assembly of citizens who took the judicial oath. Chapter 3 discusses the infamous Arginousai trial (76-95), in an attempt to demonstrate that paranomia, that is, the offence prosecuted by the graphē paranomōn, had nothing to do with proposing an illegal decree. Carawan argues that paranomon originally meant ‘an abuse of authority by an official who overreaches’ and that ‘it was sometimes synonymous with hybris’ (90-1). It is difficult to agree with Carawan’s claim, since this would mean that the graphē paranomōn could only be used against officials, while we know that anyone proposing an illegal motion could be indicted. Similarly, the alleged synonymy between hybris and paranomia is unsustainable. In graphē paranomōn cases it was always necessary to demonstrate the incompatibility between a decree and specific laws, which were also attached to the written indictment. In order to demonstrate the crime of hybris, it was instead necessary to prove that the defendant’s character disposed him to abuse someone else’s timē (Cf. Dem. 21 and 54).
Part II discusses four of Demosthenes’ most emblematic speeches against illegal decrees and unsuitable laws. Chapter 4 examines the arguments in Demosthenes’ Against Aristocrates (Dem. 23), a case against the decree of Aristocrates which, according to Carawan, granted a special immunity to the general Charidemus. Chapter 5 analyses the legal case in the speech Against Androtion (Dem. 22). Chapter 6 and 7 discuss respectively Demosthenes’ speeches against the laws of Timocrates (Dem. 24) and Leptines (Dem. 20), the only surviving speeches for graphai nomon mē epitēdeion theinai cases.
Part III concludes the survey of graphē paranomōn speeches delivered in the final part of the fourth century. Chapter 8 examines the fragments of Hyperides’ speeches against illegal decrees and introduces Aeschines’ case against Ctesiphon’s proposal to award a crown to Demosthenes and to have this honour announced in the theatre, which Carawan analyses in more detail in chapter 9.[5] The conclusion summarizes the main thesis of the book, that is, that there is a stark difference between the Athenian and the modern understandings of constitutional control and that the Athenians looked at the law in a way such that ‘there was no higher principle than the roles and rules they lived by’ (247).
Carawan offers a rich argumentation that deserves a much longer treatment than this review allows. I will therefore concentrate on some reflections about the book’s methodology and the overall argument. The book’s chief merit is that it studies Athenian legislation and the system of control of the laws, starting from the formal design of the relevant institutions and proceeding with an analysis of all the relevant forensic speeches. However, despite these valuable premises, Carawan ultimately provides a disappointing picture of Athenian legislation, and of its relevant institutions, ideology, and discourse.
More generally, Carawan’s evolutionary take on the history of Athenian lawmaking appears to be grounded on the virtually undemonstrated assumption that the Athenian demos was unable to respect the obligations required by the constitutional constraints that it had imposed upon itself. Carawan sketches a picture in which, even when the Athenians designed sophisticated procedures to keep legislative consistency and coherence, their political practices rarely complied with the normative expectations of these institutions. The assumption of a misalignment between normative principles and institutional practice is an underlying motif throughout the book, and this premise has methodologically problematic implications in the interpretation of the sources for the reconstruction of lawmaking procedures. Consequently, the overall picture is one according to which the Athenians had a very limited understanding of their own legal order and their safeguards of individuals’ prerogatives.
For example, Carawan’s reconstruction of the nomothesia is supported by a confusing use of the documentary evidence. While Carawan accepts the inauthenticity of the documents in the speeches of the Attic orators which purports to describe Athenian lawmaking (Andoc. 1.83-84; Dem. 24.20-23, 33), he nevertheless uses some of the information found in them to reconstruct fourth-century nomothesia.[6] Similar problems are found in Carawan’s at times puzzling use of inscribed laws. Carawan’s contention that the law concerning silver coinage (RO 25) was passed in 375/4 through the so-called ‘fast track’ procedure, whereas the Grain-Tax law (Stroud 1998) was passed in the following year according to a complex older legislative procedure, is in fact supported by no inscribed record of significant procedural differences. As Canevaro demonstrates, both the inscriptions and the accounts in Dem. 20; 24 and Aeschin. 3.38-40 are consistent in reconstructing a single lawmaking procedure, in force until 322 BCE.[7]
This problematic understanding of the workings and nature of Athenian judicial review and lawmaking inevitably leads the author to dubious interpretations of the oratorical arguments regarding illegal decrees and unsuitable laws in parts II and III of the book. Carawan regularly downplays the significance of discussion of the laws and the clear evidence for constitutional reasoning in the speeches in favour of interpretations emphasizing the primacy of political and ethical considerations. Postulating such a dichotomy is not a novelty in scholarship, yet the arguments used to support this contention are very tenuous. Carawan argues, for example, that, in the graphē paranomōn case against the decree for Charidemus (Dem. 23), the second part of the speech, dealing with Charidemus’ career as mercenary, outweighed the first part of the speech, which discusses the laws and decrees in detail (‘litany of provisions’, p. 100). However, as Carawan admits, the Against Aristocrates shows to a remarkable extent how ‘constitutional review was supposed to work’ (p. 120). Euthycles in fact cites eleven laws violated by the decree that made the killer of Charidemus subject to extradition to Athens, and he connects them with the intent of the lawgiver and with higher-level norms, such as the general right to a fair trial in court (Dem. 23.22-25). The second part of the speech builds on these interpretations of specific laws (cf. Dem. 23.100-101) to show that an honorary decree cannot be enacted for an individual who does not abide by the principles embedded in the laws themselves. As Lambert shows, this practice is consistent with the fourth-century epigraphical record displaying the Athenian commitment to inscribe decrees in accordance with the laws.[8]
Similarly, central to Carawan’s argument is also the passage in Demosthenes’ Against Leptines accusing the law of Leptines of being incompatible with the ethos of the city (20.13). Carawan argues that the case of Leptines shows that the Athenian courts did not judge according to the laws and constitutional principles, but on the basis of ‘the shared values and characteristic practices that frame the body politic’ (191). Yet, Demosthenes stresses that Leptines’ law abolishing all the exceptions from liturgies is inconsistent with the ethos of the Athenians, who reward the benefactors of the city, which emerges first and foremost from the interpretation of the relevant laws, such as the law forbidding people to lie in the agora (20.9) and the law against deception (20.128-45). The ethos of the city is reconstructed from the shared ethos of specific laws. The law of Leptines is unsuitable because it contradicts these laws and the higher constitutional principles of reciprocal obligations, along with the refusal to deceive benefactors enshrined in them.
The book has been nicely produced by JHU Press, and, at its best, has the merit of drawing our attention to major issues of constitutional law and the history of institutions as the basic contexts to understanding the political culture of Athenian democracy. The book raises a number of important questions about Athenian legal discourse as well as the role of law in controlling collective action, and potentially leaves open the question of Athenian influence on later Hellenistic instances of judicial review.[9] While this volume lacks a fuller understanding of Athenian lawmaking and the relevant mechanisms of constitutional control, Carawan’s book will encourage a future study on Athenian legislative institutions, which would be part of an examination of the wider history of ancient Greek constitutionalism.
Notes
[1] P. Dobner and M. Loughlin (eds) The Twilight of Constitutionalism?. Oxford: 47-72.
[2] To name a few: M.H. Hansen (1974), The Sovereignty of the People’s Court in the Fourth Century B.C. and the Public Action against Unconstitutional Proposals. Odense; A. Lanni (2010) ‘Judicial review and the Athenian “constitution”, in M. H. Hansen (ed.), Démocratie athénienne – démocratie moderne. Geneva: 217–235; M. Canevaro (2019) ‘Athenian Constitutionalism: Nomothesia and the graphē nomon mē epitēdeion theinai’, in G. Thür, U. Yiftach-Firanko (eds) Symposion 2017. Vienna: 65-98.
[3] H.J. Wolff (1970) “Normenkontrolle” und Gesetzesbegriff in der attischen Demokratie. Untersuchungen zur graphē paranomōn. Heidelberg.
[4] D. MacDowell (1975) ‘Lawmaking at Athens in the Fourth Century B.C.’, JHS 95: 62-74.
[5] Cf. E.M. Harris (2019) ‘The Crown Trial and Athenian Legal Procedure in Public Cases Against Illegal Decrees’, Dike 22: 88-111.
[6] For an analysis of the relevant documents: M. Canevaro (2013) ‘Nomothesia in Classical Athens: What sources should we believe?’ CQ 63: 139-60; (2018) ‘The authenticity of the document at Dem. 24.20-3, the procedures of nomothesia and the so-called ἐπιχɛιροτονία τῶν νόμων?’, Klio 100.1: 70-124; Against the assumption that the authors of the forged documents found reliable information in Craterus’ work: E.M. Harris (2021) ‘The Work of Craterus and the Documents in the Attic Orators and in the Lives of the “Ten Orators”, Klio 103.2: 1-42.
[7] M. Canevaro (2015) ‘Making and Changing the Laws in Ancient Athens’, in E.M. Harris, M. Canevaro (eds) The Oxford Handbook of Ancient Greek Law. Oxford. Cf. R. Martini (2000) ‘Il decreto di investitura dei nomoteti’, Dike 3: 113-23.
[8] S. Lambert (2017) Inscribed Laws and Decrees in the Age of Demosthenes. Historical Essays, Leiden: 157-70.
[9] Cf. e.g. I.Priene2 119; SEG 58: 1906.