legislation (nomothesia)

Abstract

From the earliest stages, the Greeks understood the distinction between legislation and day-to-day administration. They gave laws a special status and often created specific, separate procedures to enact them. In the Archaic period, specially appointed lawgivers were normally in charge of giving laws to the polis; these laws were intended to be immutable, and their stability secured through entrenchment clauses. Making laws was not considered to be among the normal tasks of the government of the polis, and there were no standard procedures to change the laws once these had been given. Assemblies in Greek city-states often enacted rules that had the force of law, but the legislative changes were not institutionally acknowledged, and the laws enacted by the lawgivers could not be changed. This gave rise to significant problems of legitimacy, and it introduced inconsistencies in the legal system of the polis, a problem that we can observe in 5th-century bce Athens. At the end of the 5th century, the Athenians introduced judicial review to vet new legislation and avoid the introduction of inconsistencies, performed a revision of the laws of the city, and finally institutionalised a distinction between nomoi (“laws,” general permanent norms) and psephismata (“decrees,” ad hoc enactments). They also created a complex new procedure, involving a board of nomothetai, to allow the demos to make new laws and change the existing ones. Similar yet not identical procedures are attested also outside Athens: Hellenistic kings often ordered the appointment of nomothetai or nomographoi to enact rules about political institutions, and nomographoi or nomothetic lawcourts are attested in various cities, with the task of “upgrading” decrees of the demos into laws, and entering them among the laws of the city.