Judicial Review and the Democratic Constitution of FourthÂCentury Athens
The Athenians considered the public action against illegal decrees (graphe paranomδn) as a bulwark of the Rule of Law and democracy.[107] [108] The first docuÂmented instance of this procedure dates to 415 bce, and had the aim to safeÂguard the consistency of democratic enactments by repealing new measures contrary to existing decrees and laws alike?5 This procedure is more extensively attested in the fourth century, when the graphe paranomon played the role of judicial review by enforcing the legal principle of the hierarchical superiority of the laws (nomoi) over the decrees (psephismata). Before moving to the analÂysis of the procedures of judicial review, however, it is first necessary to conÂsider the nature of legal reforms and political decision-making at the end of the fifth century. As Hansen has demonstrated in a seminal article, after 403 BCE the AtheÂnians introduced the formal distinction between laws and decrees.[109] [110] [111] The forÂmalisation of this principle was one of the major legal reforms that the AtheÂnians made after the restoration of the democracy. The two categories - nomoi and psephismata - were enshrined in the legal system as completely separated and unambiguous sources of legal authority?7 A nomos was a permanent and general norm enacted by the nomothetai, whereas a psephisma was an ad hoc enactment of the Council or the Assembly?8 This had great implications for the decision-making procedures. A decree could never supersede a law, and could never become a law as the two kinds of enactment were passed through two separate procedures. A decree was first introduced in the Council of Five Hundred, a body selected by lot from all Athenian citizens for a tenure of one year, which set the agenda and drafted motions (probouleumata) for discusÂsion and ratification of the Assembly. The Assembly was attended by all male citizens at least four times a month, during which all major policy issues were debated and voted.[112] Until 403 BCE, all kinds of enactments (also those more akin to those that would be distinguished in the fourth century as nomoi) were passed through this very system with no procedural differences with a decree. After this date, this basic procedure remained valid for passing decrees which were enacted by the Council and the Assembly as enshrined in the decree enactment formula, edoxe tei boulei kai tδi demδi (â€?it is resolved by the Council and by the People'), while a new separate and more elaborate proceÂdure for legislating (nomothesia) was put in place.[113] [114] As a result, a new law was an enactment of the nomothetai: edoxe tois nomothetais (â€?it is resolved by the Lawgivers').21 The procedure moreover prescribed that before enacting a new law, the proÂposer had to make sure to repeal all existing contradictory statutes through the graphe nomon me epitedeion theinai procedure. As Canevaro has convincingly shown in a series of detailed studies on Athenian lawmaking, the procedure of graphe nomon me epitedeion theinai was designed and understood to be a form of constitutional judicial review, used in two manners: within the nomothesia process to repeal contradictory laws; or to indict a law already enacted which was considered not epitedeios (or â€?unsuitable' within the overall system of the laws). The formalisation of the higher-level of the nomoi and the introduction of graphe nomon me epitedeion theinai also changed the original purpose of the graphe paranomδn. In the post-403 democracy, the graphe paranomδn could only be used against decrees contrary to the existing laws. The importance of these institutions has long been recognised in scholarÂship in a series of important studies, but consensus among scholars on the nature of the graphe paranomδn and the graphe nomon me epitedeion theinai as forms of judicial review is elusive. As the following analysis of legal procedure and of the forensic arguments will suggest, the Athenian graphe paranomon and the graphe nomon me epitedeion theinai were indeed forms of democratic judicial review. In an imÂportant essay, Pasquino demonstrates that these legal procedures established, in fourth-century Athens, a â€?divided power' in the constitution, which authorÂised the lawcourts to balance and mediate the deliberative institutions of govÂernment in a way similar to more sophisticated systems of modern constitu- tionalism.[119] [120] [121] The graphe paranomon and the graphe nomon me epitedeion theinai worked as a â€?counter-deliberative' legal tool, which enforced the laws of Athens and preserved the constitution without diminishing the democratic power of the Council and the Assembly. Athenian judicial review nonetheless produced what Pasquino and Ferejohn have labelled, in reference to modern systems of judicial review, â€?deliberative expectations'. Through the graphe paranomon and the graphe nomon me epitedeion theinai, the Athenian judicial system provided institutions that checked the consensus-based policies delibÂerated in the Assembly for adherence to basic requirements of legal predictaÂbility and consistency of the lawcourts, as well as for their compatibility with the overall coherence of the legislation of the city.27 In Classical Athens, the Council and the Assembly usually enacted their deÂcisions by consensus, while the courts applied strict majority rule. Canevaro has recently made a strong case for the widespread practice of consensus deÂliberation in Greek councils and assemblies?8 Through a scrutiny of the epiÂgraphical evidence recording voting figures across the Greek world, Canevaro demonstrates that decrees were usually passed by unanimous or almost unaniÂmous votes.[122] In Athens, bills were passed by diacheirotonia, a vote that alÂlowed for a free discussion open to everyone with several speeches and the possibility to include amendments from the floor. Votes by show of hands were not counted, but only broadly assessed by the proedroi, the presiding officials of the Assembly, who called the vote when wide consensus had coalesced around a proposal. Thus, a majority of the Athenian judges could repeal a deciÂsion of the whole demos in the Assembly. In fact, the graphe paranomon and the graphe nomon me epitedeion theinai introduced a strictly â€?majoritarian’ and â€?counter-deliberative’ practice within a political decision-making process that was generally structured to achieve wide consensus or unanimity. The posturÂing of the court therefore had a significant effect upon Athenian policy, as the system was designed to complement the quotidian deliberations of the demoÂcratic Assembly with the principles embedded in laws of the city. The Council and the Assembly discussed and passed several decrees during each session.[123] [124] [125] [126] These psephismata had to conform to the nomoi, otherwise a graphe paranomon could be initiated at any moment by any Athenian citizen or metic (ho boulomenos)?1 Every year, 6,000 Athenians selected by lot took the Heliastic oath in order to serve in the lawcourts, whereas the trial took place before a panel of at least 501 dikastai.32 A decree was charged during the disÂcussion at the probouleutic stage in the Council, during the discussion in AsÂsembly, or after it had been passed by the Council and the Assembly.33 The accuser had to take an oath (hypomosia), swearing that the indicted decree was illegal. The accuser then had to present a formal written document (called graphe) with evidence for the illegality of the decree to the thesmothetai who were in charge of introducing the case to court.[127] At this point the case could still be dropped but the accuser would face a fine of up to 1,000 drachmas and lost the right to bring other graphai in the future. Here the judges could either uphold the decree or repeal it, if the decree was already enacted by the AssemÂbly; but if the court upheld a decree not yet enacted by the Assembly, it was to be sent back to the Assembly for formal enactment[128] [129] In case of a successful charge when under a year had elapsed between the approval of the decree and the presentation of the charge (prothesmia), not only was the decree rescinded but the proposer of the decree was punished with penalties ranging from a fine to atimia or death.3β The preliminary stages of the procedure, before the action made its way into court, are as follows. First, after swearing the hypomosia, the accuser brought the indictment to the relevant magistrates, the thesmothetai. The graphe beÂcame a key document for the understanding of the graphe paranomon (as well as Athenian trials in general). The judicial hearing properly commenced during the second stage of a graphe paranomδn in court and lasted for an entire day. Litigants were not alÂlowed to interact with each other or with the court. Both litigants were to adÂdress the specific legal issue and to demonstrate, through speeches and the presentation of legal evidence, that the decree in question had or had not broÂken the laws, or that a law was or was not constitutional. The judges were unÂable to deliberate among themselves and could not ask questions of the litiÂgants; their job was to take in the speeches and the evidence before casting a secret vote through ballots.[139] A majority result provided for a solution with no compromise or scope for appeal. These particular aspects of judicial procedure reveal that, when considering cases of graphe paranomon and graphe nomon me epitedeion theinai, the court was not acting as a â€?second legislative chamber', as the design of the legal proÂcedure did not foster a compromise on public policies or a revision of what the Assembly had passed. Formal procedural rules (pertaining, for example, to the voting system, the format of debates, the number of participants, and more) along with the discursive protocols of the actors (pertaining, for example, to the behavioural norms of litigants inhibiting what they could or could not say before the judges) were unique to trials for illegal decrees and unsuitable laws, and did not apply to the Assembly[140] The graphe paranomon and the parallel institution the graphe nomon me epitedeion theinai thus introduced a strong majoritarian counterbalance to the deliberative and legislative politics of Classical Athens. This is seen, for examÂple, in the scholia on Aeschines, in 363/2 B.c., which shows a decree of Aristo- phon of Azenia indicted with a graphe paranomon and repealed by a court with a majority of only two votes?[141] One should not interpret this as in opposiÂtion to a deliberative democracy. The â€?schizophrenic' practice between the AsÂsembly's decision-making and the lawcourts is only superficial. This clear-cut division between the majoritarian judicial review in the lawcourts and the consensus-based deliberation of the Council and the Assembly were underÂpinned by the same fundamental value: obeisance to the rule of law[142] If a decree was illegal, there could be no compromise or deliberation, and the court was compelled to rule it out. The importance of combining institutions that uphold the supremacy of the laws and democracy is abundantly attested in the Attic Orators. A meaningful example, which highlights the work of the graphe paranomδn, is to be found in the Demosthenic speech Against Theo- crines, in which the speaker emphatically affirms that: â€?when the graphai paranomδn are cancelled, it is the end of the democracy’.[143] [144] [145] This is also conÂsistent with a passage from Aristotle’s Politics 4 in which the Stagirite, when criticising a type of radical democracy in which decrees rules over the laws, states that â€?it would seem to be a reasonable criticism to say that such a deÂmocracy is not a constitution at all; for where the laws do not govern there is no constitution’^1 (transl. Rackham). Thus, the majoritarian principle of the graphe paranomδn is explained as a mechanism enhancing the superiority of the laws without altering the consenÂsus-based deliberation of the Athenian democracy^2 Decisions were made to go through different deliberative and judicial bodies, with no â€?repetition’ beÂtween the Council, the Assembly, and the law courts, for every institution addÂed its own expertise and distinctive institutional ideology to the process of implementing and interpreting law and policy. Through the graphe paranomδn and the graphe nomon me epitedeion theinai, the courts performed an imporÂtant constitutional role in the deliberative and legislative processes by moniÂtoring the consistency and predictability of enactments promulgated by the Council and the Assembly. In this way, different institutions interacted and supplemented each other with their expertise and institutional values. This division of power in the constitution created a mutually productive relationship that introduced civic consensus into the work of the Council and the AssemÂbly, while placing checks on the guarantees of the majoritarian lawcourts. 2