The volume by Alberto Esu is an innovative contribution to our understanding of ancient Greek political systems. The notion of “divided power”, as opposed to the concept of “sovereignty”, was first brought into the discussion by Pasquale Pasquino in an analysis of decision-making in the Athenian democracy of the fourth century.[1] Pasquino emphasized its moderate constitutional design where “it was important to organize institutions able to protect the demos from the demos” (29) and where “a court or a court-like body…acts as a check upon the legislative … agencies (12)”. Esu’s book represents the first attempt to make use of such a notion on a broader scale, by focusing not only on the interplay between institutions in the decree-making of classical Athens but also on the deliberative procedures of other Greek cities (and federations), thus ultimately making a case for the “substantial unity of Greek constitutional law” (214). The theoretical framework is provided by the “historical institutionalism”, a strand of “New Institutionalism” stressing the role of institutions as “a set of rules, norms and practices that structure social relations” (32) over an extended time frame (see the concepts of path dependence, conversion and drift at 33–34, 117–131). Esu’s contention is that Greek deliberative procedures were based on a complex system of interaction and delegation among several institutions (councils, assemblies, magistrates, lawcourts), in which each body contributed to the decision-making process by virtue of its specific expertise, its rules and the values it embodied.
The book consists of an Introduction, six chapters in which the workings of divided power are retraced from the evidence for decision-making both at Athens and in a number of Classical and Hellenistic poleis and federal states (i.e. Mytilene, Eresus, Megalopolis, Sparta, Demetrias, Mylasa, Priene, the Achaean League), and an Epilogue. A vast Bibliography, an Index locorum and a General index complete the volume.
In the challenging Introduction, Esu lucidly sets forth the conceptual and analytical foundations of his work. He underlines that the concept of “divided power” differs from the notion of “separation of powers”, in that the former concerns the existence of a polyarchy within the legislative function, and he proceeds to define it as encompassing both the proposal and implementation of decrees shared by different bodies (12–13) and a variety of forms of judicial review over decree- and lawmaking (24–26). A section on the mixed constitution in Greek political theory from Plato to Polybius is followed by an overview of the approaches to the study of Greek institutions from August Boeckh to the “New Institutionalism”.
Chapter 2 focuses on the role of the boule in the deliberation process at Athens. Esu underlines the substantial, not merely rhetorical, implications of the bouleutic oath as a pledge to enforce the rule of law, as shown by Lysias’ dokimasia speeches where references to the oath resurface time and again in the legal arguments. He refutes the scholarly “myth” that political participation in Athens was amateurish and persuasively emphasizes the notion of “horizontal expertise” referring to “a kind of expertise that was generated … by the direct involvement of citizens in the democratic institutions and dispersed across society” (56). Being a councillor entailed involvement in a variety of areas of public administration (decree-making, religion, finances, diplomacy, public contracts) which inevitably led to acquiring technical knowledge and expertise. Crucially for Esu’s plea for “an interactive system of political decision-making” (61), specific probouleumata, resulting from preliminary deliberation in the council, were often unanimously ratified in the procheirotonia without the need for discussion in the assembly. The core of the chapter is dedicated to cases where the ekklesia, while enacting a decree, gave the boule full authority to integrate whatever provisions were necessary for its implementation. Esu offers a systematic analysis of all decrees where the “delegation clause” occurs making the council autokrator (in the fifth century) or kyrios (in the fourth century) to carry out such task. Among the documents examined, IG I3 136 on the cult of Bendis (65–67) and IG II3 1, 292 on the sacred orgas (75–84) especially offer valuable insights into the mechanisms of divided power through the agency of the ekklesia, the boule and various magistrates.
Chapter 3 confronts the same practice of delegation by considering the evidence from outside Athens. A case in point is provided by Mytilene at the end of the fourth century when, probably following a royal edict by Alexander, a democratic regime was set up and a reconciliation agreement enabled political exiles to be re-integrated in the civic body. Such events are documented by two inscriptions, the “decree on concord” and the “reconciliation decree” (RO 85A–B). Esu shows that the decree restoring democracy was an enactment of the assembly following a probouleuma of the council, whereas the “reconciliation decree” reflects bi-directional interplay between the two institutions: the assembly approved the motion proposed by the council (B, 38–39) but in turn delegated the council to complement the decree by adding further regulations (B, 37–38). Doubts remain concerning the text of the restored lines, which cannot, unfortunately, be dispelled by the parallel of an even more fragmentary contemporary decree from Eresus, according to which the council could strikingly propose a motion, enact a decree of its own, or modify previous regulations (RO 83, vi, 4–5). While in this case delegation to the council, like in Athens, is to be placed in a democratic context, a different pattern is mirrored by a late Hellenistic decree from Megalopolis where the kyrios-clause is functional to transferring power to an élite council.
Chapter 4 shifts the attention to Spartan decision-making. Esu agrees with Massimo Nafissi that the Great Rhetra is “a piece of retrospective history” reflecting “the moment of institutionalization of the Spartan community between the seventh century and the sixth century”.[2] He argues that Spartan decision-making was the result of the interaction between the gerousia and the ephors, who shared the function of probouleusis, on the one hand, and the damos, on the other. The gerousia (membership of which was connected to merit and arete; cf. SEG 46.400)[3] moreover performed nomophylakia, having the power to exercise legal control over the enactments voted by the assembly. Esu reconstructs the mechanisms of Spartan deliberation based on Plut. Agis 8–11, to the effect that, if a motion was unanimously approved by the gerousia, it just needed ratification by the assembly, whereas if the gerousia was not unanimous, or there was no agreement between the elders and the ephors, the ephors could still introduce the probouleuma before the damos, pending a majority vote of the gerousia should the assembly approve. Esu stresses that the requirement of unanimity or majority at the two different stages of deliberation resulted from the different functions (probouleusis, nomophylakia) performed by the gerousia. Through the mechanisms of divided power the ideal of a balance between legal stability and popular will was thus achieved.
Chapter 5 takes us back to Athens and concentrates on adeia, “immunity from prosecution”, indicating a procedure that, in a legal system where the laws were ideologically conceived as immutable, suspended the validity of an entrenched norm authorizing legislation on the matter. In Esu’s view, adeia was a first incomplete step toward nomothesia as institutionalized with the re-establishment of democracy in 403. What makes adeia relevant for the argument is that it was authorized in a two-step procedure, combining a preliminary vote by ballot (psephophoria) granting immunity for ad hoc legal change, with approval of the proposal in the assembly by show of hands (cheirotonia). Esu’s claim is that voting systems are not just technical devices but rather enshrine precise ideological implications. Psephophoria was the voting method used in the lawcourts and resonated with the values of the rule of law, thus “providing a strong legal framework for discussion of the relevant decree” (170).
Chapter 6 reconnects with Pasquino’s views on the role of the lawcourts in a graphe paranomon as a form of divided power. Esu first reconstructs the procedure when a decree was indicted for being “against the laws” and argues, against scholars stressing its political nature, that the graphe paranomon was a participative form of judicial review meant to safeguard the rule of law. The lawcourts therefore did not act as a “third deliberative forum besides the council and the assembly” (180). In his view, this is clearly shown by the voting procedure: while deliberation in the council and in the ekklesia was aimed at creating consensus, the lawcourts applied majority rule and were not meant to seek a compromise. As a result, decision-making in fourth-century Athenian democracy was a multi-layered system where the majoritarian principle of the graphe paranomon acted as “a counterbalance mechanism enhancing the superiority of the laws without altering the consensus-based deliberation” (196) in the council and the assembly. The second part of the chapter shows that judicial review was to be found also in other cities of post-Classical Greece (Demetrias, Mylasa, Priene) where, notably, it was performed by foreign judges.
The detailed Epilogue highlights the merits of an institutionalist approach that aims to bridge the gap between “the formal reconstruction of constitutional procedure” and political discourse and ideology, and underlines once more the inapplicability of the concept of “sovereignty” to Greek decision-making. Esu also examines some episodes of conflict in Greek history, beginning with the stasis at Corcyra and the Mytilene debate, where the mechanisms of divided power failed, thus reading them from a new interesting view angle.
Divided power in ancient Greece succeeds in casting new, refreshing light on Greek institutions by using models from political sciences. One of the most significant merits of the book is the combination of political theory with a philological approach based on a careful scrutiny of the sources and constant attention to their language and terminology. Throughout the book, one finds useful treatments of the meaning of terms such as epitedeios (50–51, 210–211), autokrator (62–65), diagramma (114–115), synedrion (115–117), apopsephizo (146–147), adeia and other words expressing “fear” (156–163), that enrich Esu’s analysis and make it solid and convincing.
Esu’s argument is built on a series of assumptions with which not all scholars will presumably agree: for instance, the rule of law as the ideological principle shaping deliberation “in different kinds of constitutional systems, in democracies such as Classical Athens and also in oligarchies such as Sparta” (195); and the idea that decision-making in the boule and, especially, in the ekklesia in democratic Athens was consensus-driven and not based on majority rule (186–187). This point has an important role in his demonstration but remains controversial.[4] Esu, moreover, provides stimulating insights into the practice of delegation, whereby both at Athens and elsewhere, the council was empowered to complement the provisions of a decree voted by the assembly, should anything prove to be “missing”. From a formal point of view, his case is strong. It is one of the important advances in the scholarly debate offered by the book. At the same time, given that only a limited number of attestations of this practice exist in Attic epigraphy, one wonders how frequent it effectively was.
In sum, Alberto Esu’s book is an important, theoretically engaged contribution to the study of Greek political systems and institutions. As with every ground-breaking book, some elements in the argument will no doubt generate further debate, but “divided power” is henceforth a concept all Greek historians will need to take into consideration, and not only with reference to the Athenian democracy.
Notes
[1] Pasquale Pasquino, “Democracy ancient and modern: divided power”, in Mogens Herman Hansen (ed.), Démocratie athénienne – démocratie moderne: tradition et influences, Vandœuvres-Genève 2010.
[2] Massimo Nafissi, “The Great Rhetra (Plut. Lyc. 6): A retrospective and intentional construct?”, in Lin Foxhall, Hans-Joachim Gehrke, and Nino Luraghi (eds), Intentional history: spinning the time in ancient history, Stuttgart 2010.
[3] See Nicole Lanérès, “La dédicace du “trône” d’Aléa SEG 46,400, nouvelle lecture”, in REG 125, 2012, 715–725.
[4] Compare Mirko Canevaro, “Majority rule vs. consensus: the practice of democratic deliberation in the Greek poleis”, in Mirko Canevaro, Andrew Erskine, Benjamin Gray, and Josiah Ober (eds), Ancient Greek history and contemporary social sciences, Edinburgh 2018 with Alberto Maffi, in Dike 22, 2019, 167–180.