When the Athenians reintroduced democracy in 403 the aspiration was to return to the ‘ancestral constitution’ – the lost golden age of Solon and Dracon (Hansen, 1999, p.175) – democracy type one in Aristotelian parlance. Fifth-century democracy had allowed the people’s judgment to be corrupted by demagogues in the Assembly, hence the wish to recover respect for the laws:
In 403 the Athenians returned to the idea that the laws, not the people, must be the highest power and that the laws must be stable, even if not wholly entrenched. (p.174)
Henceforth the powers of the Assembly would be limited to issuing temporary/specific decrees (psephisma), whereas any change to general/permanent laws (nomos) would be subject to trial by a jury of nomothetai. These were to be composed of persons selected randomly from the group of 6,000 older male citizens who had sworn the Heliastic Oath. The main purpose of the nomothetai was the overtly conservative one of ensuring that proposed changes were consistent with past laws – only if ‘there is no [relevant] law I will give judgment in consonance with my sense of what is most just’ (Heliastic Oath, quoted on p.170).
The role of the fourth-century Assembly was primarily to issue decrees (including treaties), elect magistrates and summon People’s Courts and nomothetai into being. Legislative courts had no power of initiative and the role of jurors was limited to listening to advocates for and against the proposal, deliberating within and then determining the outcome by secret vote. The power of initiative was:
(a) in the Assembly, or (b) by any citizen, or (c) by magistrates, namely the thesmothetai . . . the Council is involved in the legislative procedure in so far as it calls and fixes the day’s programme for the Assembly meetings which will prepare the setting-up of nomothetai, and brings the proposal for the new law before the Assembly (p.168-9)
That’s not to say that the Council had purely an administrative role, as ‘in every case the legislative procedure must have involved one or more (open) probouleumata’. Nevertheless the legislative initiative was in the hands of the assembly of the people and any citizen could put up a ‘repeal’ law (p.166) and ‘it is the Assembly that decides whether a revision of the code is needed’ (p.168). The Assembly ‘retained the initiative in legislation’ (p.153).
The restored democracy also placed a greater reliance on electing key magistrates (100 in total): ‘It was in fact these elected financial magistrates who were more or less responsible for the revival of Athens after the defeats.’ (p.160)
Whilst there is no reason for modern proposals for sortition to be overly constrained by ancient practice, we should acknowledge that we are standing on the shoulders of giants. The restored democracy lasted for eighty-two years and was only destroyed by the overwhelming military power of Philip of Macedon. It’s no coincidence that the principal survivor of Athenian practice is the trial jury, and there is a strong case for reinstating it for the trial of legislation. Those, however, who wish to propose an entirely new model for a legislature, in which allotted bodies are handed unprecedented new powers need to provide a convincing rationale for the decision to depart from ancient practice in such a radical fashion.
M.H. Hansen (1999), The Athenian Democracy In the Age of Demosthenes (Bristol Classical Press).