MIRKO CANEVARO

HONORARY DECREES AND :

ON IG II3 1 327; 355; 452

Isbn 9788828803034

Estratto dal volume:

DIKE
ESSAYS ON GREEK LAW IN HONOR
OF ALBERTO MAFFI
edited by
LORENZO GAGLIARDI and LAURA PEPE

2019
 MIRKO CANEVARO
HONORARY DECREES AND ΝΟΜΟΙ ἘΠ᾽ ἈΝ∆ΡΙ:
ON IG II3 1 327; 355; 452

1. Introduction.
Three Athenian inscriptions, from 336/365 (IG II3 1 327), 335/334 (IG II3
1 452) and 329/328 (IG II3 1 355), have long puzzled scholars. They are all
related to honours granted by the Athenian Assembly to benefactors, the last
two reporting individual decrees and the first reporting three decrees (one of
the Council and two of the Assembly) concerning the same benefactor, part of
the same process to enact the relevant honours. The first inscription reports the
honorary decrees voted for Phyleus son of Pausanias of Oinoe, secretary of the
Council and of the Assembly, and for two of his colleagues; the second the
honorary decree for Peisitheides son of Peisitheides of Delos; the third that for
a commission of ten (which includes Lycurgus and Demades) elected to
organise the agonistic festival of Amphiaraus.
These are, to all purposes, rather ordinary honorary decrees: the first in-
scription, for Phyleus and for his two colleagues, grants them golden crowns worth
1,000 drachmas each and prescribes that the decrees should be inscribed on the
Acropolis (at a cost plausibly restored at twenty drachmas each); the second
decrees that Peisitheides should become an Athenian citizen (after a necessary
further vote in the next Assembly meeting, see below pp. 84-85), that the decree
should be inscribed on a stele (at a cost of thirty drachmas), and that Peisitheides
should receive a pension of one drachma per day during his Athenian exile; the
third stipulates that the ten elected commissioners should receive a golden crown
worth 1,000 drachmas, 100 drachmas for a sacrifice, and that the decree should
be inscribed in the sanctuary of Amphiaraus (at a cost of thirty drachmas).
All the funds to be spent must come, as normal at this time, from the dis-
cretionary fund for the decrees (ἐ̓κ τµν κατὰ ψηφίσµατα ˜ναλισκοµένων τµι
δήµωι) managed by the ταµίας το¯ δήµου (1). What is puzzling, however, is that
in these inscriptions particular sums (and not others) — the 1,000 drachmas for
the crown in the first, the daily one-drachma pension in the second, the 100
drachmas for the sacrifice in the third — are only advanced by the ταµίας το¯

(1) See below pp. 72-73 and RHODES 2013, 216-224 for the development of Athenian
financial allocations.
72 MIRKO CANEVARO

δήµου, but they must actually come from elsewhere (and not ἐ̓κ τµν κατὰ
ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι): they are special sums that the ˜ποδέκται
must allocate to the ταµίας το¯ δήµου especially and specifically to cover these
particular items of expenditure. While, for instance, the twenty or thirty drachmas
for inscribing the decree, and even (as it appears) the 1,000 drachmas for the
golden crown for the commissioners of the festival of Amphiaraus, come from the
existing funds allocated to the ταµίας το¯ δήµου, these are instead additional sums.
It is clear then that in these three cases (and only in these three cases) the
Assembly does not have the authority to order the transfer of these additional
sums. For the transfer to be approved it is necessary to hold a vote of the νοµοθέται:
IG II3 1 355 (ll. 39-40), for instance, orders that, in the first available session of
the νοµοθέται (2), the proposal for the transfer of the relevant sum to the ταµίας
το¯ δήµου should be submitted to them, and, likewise, the other two inscriptions
order that the πρόεδροι and the ™πιστάτης at the relevant session of the νοµοθέται
should put the special allocations of funds requested to the vote (3). Why is that?
In the fourth century the Athenians replaced the fifth-century practice of
having the ˜ποδέκται pay all the income of the city into one central treasury (no
longer attested after 404/403), and started to allocate it (µερίσαι) to various
separate funds (which start appearing throughout the fourth century) linked to
particular bodies or magistrates. In a given day of each prytany the ˜ποδέκται
received the income due to the city and distributed it to the various funds — on
the next day they presented the accounts of the allocation to the Council, where
they could be accused of mismanagement (4). This allocation of the money to
the different funds was not discussed (in the Council and the Assembly) on a
monthly or yearly basis, but was enshrined into law — the allocation was
fixed (5). This is attested as soon as the year 386/5, when a decree (IG II2 29 =
RO 19 ll. 18-22) states: µερίσαι δK τN ˜ργύριον τN εœρηµένον τõς ˜ποδέκτας ™κ
τµν καταβαλλοµένων χρηµά[τ]ων, ™πειδὰν τὰ ™κ τµν νüµων µερ[ίσωσι]. Laws
(νόµοι) in the fourth century, following the creation of the procedure of
νοµοθεσία after the restoration of democracy, were distinguished from decrees
(ψηφίσµατα) as higher-order rules enacted, though a different and more com-
plex procedure (νοµοθεσία) by the νοµοθέται, while ψηφίσµατα were enacted

(2) For the importance of this provision for our understanding of the procedure of
nomothesia, see CANEVARO 2013a, 84; 2013b, 140; 2018a, 90-99, pace HANSEN 2016, which restates
the position of HANSEN 1985. In reality, the nomothetai could be summoned at any point of the
year, pending a preliminary vote.
(3) The πρόεδροι and the ™πιστάτης are not specific to the νοµοθέται, but are the normal
officers running the Council and the Assembly, as argued in HANSEN 1978a, whose arguments are
strengthened by CANEVARO 2013a, 118-120. Hansen later changed his mind (in HANSEN 1979-1980,
103 n. 17), and agreed with RHODES 1972, 28 and MACDOWELL 1975, 63 that these were different
πρόεδροι and ™πιστάτης.
(4) See RHODES 2013 for an up-to-date and useful discussion of these developments.
(5) On this law, see RHODES 1972, 50 n. 1, 103; HANSEN 1978b; CANEVARO 2013a, 104-112.
 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 73

through normal procedures by the Council and the Assembly (6). One of the
relevant laws, quoted at And. 1.89, Dem. 23.218, 24.30 and Hyp. Ath. 5.22,
stated that “no decree, neither of the Council nor of the Assembly, is to have
more authority than a law” (7). This is the reason for which the Athenians had
to submit the transfer to the νοµοθέται: the Assembly had full discretion on how
to use the money ἐ̓κ τµν κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι, but, in
order to transfer more money than originally allocated to that fund, a decree
was not enough, because no decree could override a νόµος, and the financial
allocation (normally called by scholars µερισµός) was enshrined in law (8).
This much is clear. The problem — the puzzle — is that, strictly speaking,
for the νοµοθέται to enact such laws — small modifications of the µερισµός for
the purpose of funding particular honours for particular individuals — should
have been illegal, because another law (enacted after the restoration of democ-
racy) stated that µηδK νόµον ™π᾽ ˜νδρM ™ξε¦ναι θε¦ναι, ™ὰν µL τNν αžτNν ™φ᾽
Qπασιν Ἀθηναίοις (Dem. 23.86, 218; 24.18, 59, 116, 159, 188; 46.12; And. 1.89).
This law defined the nature of a νόµος — a general rule — as opposed to a

(6) For the reconstruction of this procedure see now CANEVARO 2013a, 80-94; 2013b;
2016a, 12-32; 2016b, strengthened in CANEVARO 2018a, and superseding previous reconstructions:
MACDOWELL 1975; HANSEN 1979-1980; RHODES 1985; HANSEN 1985 (restated in HANSEN 2016). For
the distinction between νόµοι and ψηφίσµατα see the classic articles HANSEN 1978b; 1979; and
now also CANEVARO 2015.
(7) See CANEVARO, HARRIS 2012, 116-119; CANEVARO 2015; 2017, 215-216 for this law.
(8) It is unclear from the inscriptions why some particular sums needed to be additionally
allocated through a specific law modifying the µερισµός, while others were simply payed ἐ̓κ τµν
κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι. WELSER 2011: chs. 2.2.3 and 3 hypothesises (without
enthusiasm) that money from this fund could be used only for specific purposes or in specific
ways, so expenses for other purposes (or non-standard) had to be drawn from other funds
through modifications of the µερισµός (SCHWENK 1985, 102 suggests that these are all permanent
increases of the allocation, whether the expense that triggered them was recurrent or not). As
there is no sign in the extant evidence that the µερισµός, in addition to allocating money to
particular funds (connected to particular bodies or magistrates, and therefore, roughly, to
particular functions), also defined in detail the uses allowed, it is equally, if not more, likely that
particular sums were requested through modifications of the µερισµός simply because of
budgetary constraints: the ταµίας το¯ δήµου and the Athenians certainly knew how much money
was available ἐ̓κ τµν κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι, and therefore knew that
occasionally (at particular times, after particularly big expenses, and beyond a certain level of
expenditure) they would need ad hoc transfers to afford granting particular honours. HANSEN
(2016, 275-276) wonders how the Assembly could be sure that the the νοµοθέται would oblige
and simply ‘rubberstamp’ their request — he rightly believes that the νοµοθέται must have had
the right to turn the request down. My own guess is that they could be comfortably sure that the
request would be upheld because the νοµοθέται were in fact none other than a special session of
the Assembly itself (as argued already by PIÉRART 2000), and so the Assembly must have been
confident that, in a special session, they would confirm what they had already approved. I make
the point that there is no evidence that they were drawn from those who had sworn the Judicial
Oath in CANEVARO 2016b, and make a fuller argument for their identification with a special session
of the Assembly in CANEVARO 2018a and CANEVARO, ESU 2018.
74 MIRKO CANEVARO

ψήφισµα — an ad hoc order addressed to a particular problem or individual —

by forbidding the enactment of νόµοι ™π᾽ ˜νδρί. Hansen has long ago demon-
strated in two pioneering articles that this rule was followed zealously through-
out the fourth century BCE (with the only possible exceptions connected to the
emergency of the war against Philip) (9). General rules were always enacted by
the νοµοθέται, and νόµοι enacted by the νοµοθέται were always general in scope.
Yet the modifications to the µερισµός that the three inscriptions we are
discussing require the πρόεδροι and the ™πιστάτης to submit to the νοµοθέται,
to be enacted as νόµοι, are aimed at honours for individuals, and therefore (it
would appear) are in breach of the prohibition on νόµοι ™π᾽ ˜νδρί.
Scholars have proposed two main solutions to this puzzle. Hansen pro-
posed that these “borderline cases” can be explained thanks to a particular rule
found in one document (And. 1.87) that seems to qualify the prohibition on
νόµοι ™π᾽ ˜νδρί with the further provision ἐ̓ὰν µL ἑ̔ξακισχιλίοις δόξῃ κρύβδην
ψηφιζοµένοις: the modifications to the µερισµός were to be approved as νόµοι
™π᾽ ˜νδρί, expressly authorised with a preliminary secret vote with a quorum of
6,000 (10). Rhodes, on the other hand, argued that “what the nomothetai are
asked in the three decrees to do is not to ratify the decree but simply to revise
the merismos, and I see no reason to believe that these revisions would count as
νόµοι ἐ̓π’ ἀ̓νδρί” (11). His interpretation has been restated with further argu-
ments by myself and Harris. Not only have we argued that these modifications
to the µερισµός were by no means — were not intended to be — νόµοι ἐ̓π’
ἀ̓νδρί; we have also argued that the document at And. 1.87, where we find the
qualification to the prohibition on νόµοι ™π᾽ ˜νδρί on which Hansen’s case rests,
is a forgery, and that qualification never existed (12). Hansen has recently
restated his own case, bringing further arguments in its favour and countering
the arguments made by Rhodes, Harris and myself (13). In this contribution, as
a means to celebrate the life-work of another legal historian — Alberto Maffi —
who has never shied away from forceful scholarly debate, I examine Hansen’s
new arguments and argue, in Section 2, that Hansen’s objections to my
assessment of the authenticity of And. 1.87 are without merit, and that no
qualification on the prohibition on νόµοι ἐ̓π’ ἀ̓νδρί ever existed. In Section 3 I
make the argument that IG II3 1 327, 355 and 452 do not introduce modifi-

(9) For this rule, see, once again, HANSEN 1978 and 1979, as well as CANEVARO 2015 and
2017, 215-216 for its implications.
(10) HANSEN 1979-1980, 90-99; 1985, 360-362.
(11) RHODES 1985, 59.
(12) CANEVARO, HARRIS 2012, 116-119; more extensively in CANEVARO 2013, 145-150. We
are not the first to consider that document a forgery: cf. WAYTE 1882, 137; LEPRI SORGE 1979, 316.
And, even among the editors that have accepted the document as authentic, the majority (Schäfer,
Lipsius, Taylor, Dindorf) expunge the qualification ἐ̓ὰν µL ἑ̔ξακισχιλίοις δόξῃ κρύβδην
ψηφιζοµένοις as spurious.
(13) HANSEN 2017.
 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 75

cations to the µερισµός as νόµοι ™π᾽ ˜νδρί, and do not make use of any ad hoc
rule that (allegedly) allowed enacting νόµοι ™π᾽ ˜νδρί in certain circumstances.
I leave open the wider issue of how, within the institutional structures that
governed this process, this practice of modifying the µερισµός through ad hoc
laws may have come about and become established — I plan to discuss this in
a further contribution.

2. Were νόµοι ™π᾽ ˜νδρί ever allowed?

We know for certain that one of the laws enacted after the restoration of
democracy, in the same context in which the procedure of νοµοθεσία was
created, stated that µηδK νόµον ™π᾽ ˜νδρM ™ξε¦ναι θε¦ναι, ™ὰν µL τNν αžτNν ™φ᾽
Qπασιν Ἀθηναίοις, because this provision is quoted and discussed at various
points in the corpus of the Attic orators (Dem. 23.86, 218; 24.18, 59, 116,
159,188; 46.12; And. 1.89) (14). Not once in these passages this provision is
qualified by a special rule allowing the enactment of νόµοι ™π᾽ ˜νδρί with a
special procedure — it is not qualified by any such rule also in the document
found at Dem. 23.86, in a speech whose documents are normally reliable, and
likely to be authentic (15). The rule is always treated by the orators as absolute.
Yet in two documents found at And. 1.87 and at Dem. 24.59 this rule is
found qualified by a further clause, mentioning a vote by secret ballot with a
quorum of 6,000. The clause is in fact found in two different versions in the two
documents, and the formulation of Dem. 24.59 does not make any sense —
Hansen agrees about this, and chooses therefore to take it out of the pic-
ture (16). Harris and I have argued that these documents are not in fact reliable,
and that a special procedure to provide a derogation to the prohibition on νόµοι
™π᾽ ˜νδρί never existed. The relevant provision is very short, found at the end
of the documents (while the first part of both documents reproduces verbatim
the prohibition on νόµοι ™π᾽ ˜νδρί as we find it in the orators), so no arguments
based on epigraphical parallels and further direct evidence on it can be made in
this instance — it is just not attested elsewhere (17). For these reasons,
arguments for or against its authenticity can only trade in probabilities.
Hansen does not, strictly speaking, bring any specific evidence to bear on the
issue of the authenticity of the provision. His case is built, first, on the argument
that IG II3 1 327, 355 and 452 are examples of the use of the procedure described
in the relevant clause — I demonstrate in the next section that these decrees did
not follow any special procedure, whether such a procedure existed or not. Sec-

(14) See above p. 73-74.

(15) See CANEVARO 2013a, 37-76, and 74-75 about this particular document.
(16) HANSEN 2017, 278. Hansen believes that the document at Dem. 24.59 should be
emended into authenticity, and made to match the contents of that at And. 1.87.
(17) On such arguments see CANEVARO 2013a, 34-35 and now CANEVARO 2018a.
76 MIRKO CANEVARO

ond, he contends that my own case against the document relies on a method-
ological principle that I apply inconsistently. He quotes two passages that should
summarise this methodological principle. In the first I state: “the documents
should not contradict the information found in their close paraphrases, and
should contain all the features there summarized. Sometimes, however, the docu-
ments also contain details and provisions absent from their summary. This is often
understood as automatic evidence for their authenticity” (18). In the second I
observe: “the presence in a document of details and provisions that are not men-
tioned by the orator in his paraphrase are not automatically evidence of authen-
ticity. They could be and often are the product of the forger’s imagination” (19).
Even at a cursory reading, it is clear that my points here are: (1) that scholars that
consider the presence in a document of a provision not mentioned in the para-
phrase a priori evidence of authenticity are mistaken, because we have plenty of
examples of such provisions that are transparently forgeries, the product of the
forger’s imagination (for instance from documents found in Dem. 18 that ev-
eryone considers forgeries) (20). (2) That such provisions should be carefully
assessed against what we know from other texts, because they may be found to
be evidence of authenticity, but may equally be (and often are) found to be the
most egregious signs of forgery.
Hansen, however, somehow takes these two passages to mean that one of
my methodological principles is that when we find in a document a provision
which is not found in the paraphrase, this is a priori evidence that the document
is a forgery. He summarises my argument as follows: “Andokides’ omission in
his paraphrase at 89 of the exemption clause in the document at 87 about
passing a nomos ep’ andri if allowed by a quorum of 6000 is an example of a
provision in a document not mentioned by the orator in his summary of the
content of a document he has had read out to the jurors, and accordingly
Canevaro rejects the exemption clause as a late forgery (146)” (21). This sleight
of hand allows Hansen to declare my approach inconsistent, and he points to
my discussion of Diocles’ law at Dem. 24.42 (which I consider authentic despite
the fact that it contains provisions not found in the paraphrase) (22) as evidence
that I do not always stick to my own principle. But this is a strawman argument
— the principle that I allegedly apply inconsistently is Hansen’s own invention.
As explained above, the relevant methodological principle is not that provisions
found in the documents but not in the paraphrases are a priori evidence of
forgery. It is rather that they are not, as Hansen and others have often taken
them to be, a priori evidence of authenticity. Such provisions can be evidence

(18) CANEVARO 2013a, 32.

(19) CANEVARO 2013a, 146.
(20) See CANEVARO 2013a, 237-318 passim.
(21) HANSEN 2017, 279.
(22) CANEVARO 2013a, 121-127.
 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 77

of either, and one has to look for parallels to confirm or refute their contents,
and examine whether their rationale makes sense and whether necessary
information is missing from the provision.
In this instance, as observed by Rhodes and reiterated by myself, the
possibility of enacting a νόµος ™π᾽ ˜νδρί goes against the very principle on which
νοµοθεσία was founded in the fourth century, that of the differentiation
between νόµοι and ψηφίσµατα in terms of procedure and range of application.
Ad hominem measures are invariably enacted as ψηφίσµατα, and IG II3 1 327,
355 and 452 are no exception, as I shall argue in Section 3. The possibility of
enacting νόµοι ™π᾽ ˜νδρί would have undermined the whole legal framework
behind this distinction, and blurred the boundary between νόµοι and
ψηφίσµατα — a blurring of boundaries that is simply not reflected in the
available sources, oratorical and epigraphic (23). To this argument, one should
add a more technical one: in the other two known instances in which the
Athenians used secret ballot with a quorum of 6,000 — eδεια and naturalisation
grants — we know that the relevant laws carefully specified in what body the
secret vote with quorum of 6,000 was meant to occur, and whether this vote was
meant to be one of ratification (as in naturalisation grants) or of authorization
(as in eδεια). The provision at in the document at And. 1.87 leaves the reader
(and the judge!) wholly in the dark (24).
As for checking the provision against relevant parallels, this is difficult to do
in this instance, for the obvious reason that the relevant provision, stating that
enacting a νόµος ™π᾽ ˜νδρί is allowed if previously authorised with vote of the
Assembly by secret ballot and with a quorum of 6,000, is never found anywhere
else in our sources. My argument, in this respect, is that the way the law
prohibiting the enactment of νόµοι ™π᾽ ˜νδρί is used by the orators in their legal
arguments implies that the prohibition is absolute — those arguments would
make no sense if a route had existed to pass such laws (25). Hansen, content
with refuting a spurious argument that I never made, does not address this issue
at all. To summarise my point, Demosthenes’ argument in the context in which
the law was quoted at Dem. 24.56 is that the law of Timocrates had been drafted
with specific individuals in mind (Androtion, Glaucetes, and Melanopus), and
that therefore, given that this law prohibits enacting νόµοι ™π᾽ ˜νδρί,
Timocrates’ law must be illegal. He adds that, apart from Timocrates’ intent, the
law explicitly singles out tax farmers, lessees, and their sureties, so it is ad
hominem. In my original analysis, I pointed out that the argument is very weak
as it is — that Timocrates’ intent was ad hominem is Demosthenes’ speculation,

(23) See RHODES 1984, 59; 1991, 97-98; CANEVARO 2013a, 148-149. Rhodes does not
question the authenticity of the provision, but because it makes no sense in the context of what
we know of legislation in the fourth century, he is convinced that it must have been dead letter.
(24) CANEVARO 2013a, 149. HANSEN 2017 does not reply to these points.
(25) CANEVARO 2013a, 148-149.
78 MIRKO CANEVARO

and singling out generic categories of individuals (as laws do all the time) is not
the same as passing a νόµος ™π᾽ ˜νδρί. But, if the actual law read out by the
secretary (and possibly brought up by Timocrates) had actually stated that νόµοι
™π᾽ ˜νδρί are in fact allowed with a certain procedure, the argument would not
have simply been weak; it would have been absurd. Demosthenes’ argument is
built on the force of what is presented as inderogable principle. If an exception
had existed, all that Demosthenes could have argued would be that there was
no vote by secret ballot with a quorum of 6,000 in this instance. Yet he does
not (26). He makes a general case that νόµοι ™π᾽ ˜νδρί are forbidden absolutely.
My case can be strengthened by a brief discussion of other mentions of the
law in other passages in the orators — the relevant law is also cited and
discussed at Dem. 23.86, 218, at Dem. 24.18, 116, 159; 188, at Dem. 46.12, and
at And. 1.89. In all these instances, the law is presented as an absolute command
— νόµοι ™π᾽ ˜νδρί are always forbidden. At Dem. 24.18 Demosthenes states the
law ™πM π@σι τNν αžτNν νόµον τιθέναι κελεύει. At Dem. 24.116 Demosthenes
combines in a powerful formulation the absolute requirement for laws to be
general with the requirement for them to be prospective, and not retroactive:
“yet I thought the lawgiver should legislate about the future, the kind of things
one should do and how they should be done, and the sort of punishments
appropriate for each offense. This is what it means for the laws to be the same
for all citizens. To propose laws about the past is not legislating, but protecting
criminals” (trans. Harris). At Dem. 24.159 Demosthenes reiterates: “I am quite
amazed at the shamelessness of both men [Androtion and Timocrates], the
former for asking for his help, the latter for coming forward and joining in his
defense. All of you will have clear testimony that this was his aim in passing the
law and that he did not pass one that was the same for all” (trans. Harris). Once
again, if an exception to the prohibition on νόµοι ™π᾽ ˜νδρί had existed, the
problem with Timocrates’ law (even assuming that it was ™π᾽ ˜νδρί) would have
been purely procedural: no secret vote with a quorum of 6,000 had been held.
But this is not the argument that Demosthenes makes; he argues instead that
enacting a νόµος ™π᾽ ˜νδρί is wrong and shameful in absolute terms. And the
same reasoning applies to Dem. 24.188: “if you agree that you enacted the law
for the benefit of men who you allege have acted correctly, on the same
principle you clearly should be convicted because you should not have enacted
a law unless it was the same for all citizens; this is stated by the laws in effect,
in accordance with which these men have sworn to give judgment” (trans.
Harris). The judges have sworn to judge according to the laws, which — the
argument goes — state that νόµοι ™π᾽ ˜νδρί are simply not allowed. Likewise,

(26) Note that Demosthenes (speciously) brings up such an argument in connection with
the law on eδεια at Dem. 24.45, specifically in connection with the requirements of that law (see
CANEVARO 2018a, 90-94), but there is no trace of any such argument here, in connection with the
law on νόµοι ™π᾽ ˜νδρί.
 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 79

the rationale for the prohibition on νόµοι ™π᾽ ˜νδρί as presented at Dem. 23.86
(recalled at Dem. 23.218) is incompatible with the possibility to enact a νόµος
™π᾽ ˜νδρί through a special procedure; it is absolute: “just as each man has an
equal share in the rest of political life, the man who made this law thought that
all must have an equal share in the laws. For this reason he wrote, ‘It is not
permitted to enact a law about an individual unless it is the same for all
Athenians’” (trans. Harris). There is no room in this formulation for any
exception (27).
To sum up, the evidence points to the conclusion that no special procedure
for enacting a νόµος ™π᾽ ˜νδρί ever existed in Athens. My argument is not, as
suggested by Hansen, that the provision with this special procedure is found in
one document (and in an unacceptable formulation in another) but not in the
relevant paraphrases, and therefore must be spurious. My argument is rather,
first, that the existence of such a provision makes no sense within the fourth-
century framework of νοµοθεσία, and undermines the very principle around
which it was structured. Second, that whenever the relevant law is discussed, the
orators do not simply fail to mention the possibility of enacting a νόµος ™π᾽
˜νδρί through a special procedure, but they explicitly present the prohibition
on νόµοι ™π᾽ ˜νδρί as absolute, and their arguments make no sense whatsoever
if such a procedure actually existed. Hansen does not address these arguments
and does not examine any of the relevant passages. His case is solely built on the
belief that IG II3 1 327, 355 and 452 presuppose and use a procedure for
enacting νόµοι ™π᾽ ˜νδρί. In the next section I show that they do not.

3. Were the modifications of the µερισµός in IG II3 1 327, 355 and 452
understood as νόµοι ™π᾽ ˜νδρί.
In the previous section I have argued that it is very unlikely that a provision
qualifying the prohibition on νόµοι ™π᾽ ˜νδρί ever existed, that the arguments
made by the orators that are based on the prohibition on νόµοι ™π᾽ ˜νδρί would
become absurd if a procedure existed to enact such νόµοι, and that the
document at And. 1.87 reporting that qualification is very likely to be a later
forgery. In this section I address Hansen’s second key contention: that IG II3 1
327, 355 and 452 propose modifications of the µερισµός to be enacted as νόµοι
™π᾽ ˜νδρί through a special procedure. My argument is that these modifications
are not presented as νόµοι ™π᾽ ˜νδρί, and that the decrees prescribe their
enactment through the normal νοµοθεσία procedure. These decrees are not
evidence that a special procedure existed to enact νόµοι ™π᾽ ˜νδρί. They are
evidence that the practice of enacting ad hoc modifications of the µερισµός,
phrased as general transfers of money to particular funds, became consolidated

(27) The mentions of this law at And. 1.87 and Dem. 46.12 are so cursory that nothing can
be reconstructured from them about whether there was room for exceptions or not.
80 MIRKO CANEVARO

throughout the fourth century, and the Athenians came to understand such
modifications as not in breach of the prohibition on νόµοι ™π᾽ ˜νδρί.
As summarised above, Rhodes’ argument, restated by Harris and myself, is
that these modifications of the µερισµός prescribed by the decrees did not reach
the νοµοθέται as requests to ratify honorary decrees (by definition ™π᾽ ˜νδρί),
but rather as generic changes to a law — the µερισµός. Hansen counters that,
for instance “in the honorary decree for Phyleus the purpose of the supple-
mentary law to be passed by the nomothetai is explicitly stated: honouring
Phyleus with a golden crown aims to encourage future secretaries to administer
in accordance with the laws and to be of use to the Athenian people (IG II3 1
327 ll. 18-21)” (28). Because of this, according to Hansen, by voting the
supplementary νόµος, the νοµοθέται “endorsed” the measure, and therefore
also its purpose.
It is hard to tell what precisely a debate among the νοµοθέται might have
looked like, and what kind of considerations must have been relevant in that
context — we do not have any evidence for such debates (29). It may be that
simple considerations of how useful the measure was for the city were relevant,
as in the Assembly; or it may be that they dealt with issues of “constitutionality”
and coherence with the existing laws, as in the lawcourts with γραφαM νόµον µL
™πιτήδειον θείναι; perhaps it was a combination of the two (30). Discussion on
such a modification of the µερισµός may have concerned, first, whether the
Assembly had, generally, the constitutional power to grant such honours;
second, whether it was desirable and “constitutional” to honour secretaries of
the Council and the Assembly (in general); and, third, whether there was
enough money available to grant the transfer requested or not. Unless the
modification of the µερισµός itself was phrased, in the law proposal, as an
“honorary” law addressed specifically to that particular honorand, Phyleus,
there is no reason to think that what the Assembly asked the νοµοθέται to
consider was intended, represented and understood explicitly as a νόµος ™π᾽
˜νδρί. And, in fact, in IG II3 1 327, when the modification of the µερισµός to
be submitted to the νοµοθέται comes up (ll. 19-23), we read: τ]οOς προέδρους,
οa lν λάχωσι[ν προεδρεύειν ․․․․9․․․․․ τοO]ς νοµοθέτας προσνοµοθετ‰[σαι περM το¯
˜ναλώµατος, Uπως l]ν καM ο eλλοι ο καθιστάµε[νοι γραµµατε¦ς φιλοτιµµντα]ι
πρüς τε τLν βουλLν καM τNν δ[‰µον, eρχειν κατὰ τοOς νüµου]ς καM εzναι χρήσιµοι
τµι δήµ[ωι τµι Ἀθηναίων, “the presiding committee allotted to preside . . . shall
bring before the lawmakers an amendment to the law about the expenditure so
that others who are appointed [secretaries] may [show love of honour] towards
the Council and the People, [in performing their office according to the law]s

(28) HANSEN 2017, 276.

(29) I plan to discuss these issues in a future book on νοµοθεσία.
(30) For the γραφή νόµον µL ™πιτήδειον θείναι as “constitutional” judicial review, see
CANEVARO 2018b.
 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 81

and in being useful to the Athenian People” (trans. Lambert). Everything in

these lines (which prescribe what should be drafted in the modification
law) (31) is phrased in general terms, with care paid to avoiding any mention of
the particular honorand: the purpose of the change in the µερισµός is explicitly
expressed as that of encouraging civic behaviour in secretaries in general, not of
securing enough money to give Phyleus his golden crown.
Contrast this with ll. 42-46, part of the original decree of the Council
praising Phyleus and starting the whole procedure, and proposing that the
Assembly should do the same: Uπως δ’ lν καM Ž 䉵ος αžτNν τιµήσ]ηι, τοOς
προέδρους, οa lν λ[άχωσι προεδρεύειν εœς τLν πρώτην] ™κκλησίαν, χρηµατίσαι
π[ερM αžτο¯, γνώµην δK ξυµβάλλεσθαι] τ‰ς βουλ‰ς εœς τNν 䉵ον, U[τι δοκε¦ τ‰ι
βουλ‰ι εzναι αžτµι ε]ρέσθαι παρὰ το¯ δήµου ˜γ[αθNν U τι lν δύνηται, “in
order that the People may also honour him, the presiding committee allotted to
preside in the next Assembly shall put his case on the agenda and submit the
opinion of the Council to the People that it seems good to the Council that he
should be permitted to obtain from the People whatever benefit he can” (trans.
Lambert). Here, like at ll. 19-23, we have one body prescribing that a particular
proposal should be submitted by the πρόεδροι to another body (here the
Council to the Assembly; at ll. 19-23 the Assembly to the νοµοθέται). The
difference is that in this instance the proposal to be made is phrased to focus
specifically on Phyleus, while at ll. 19-23 the phrasing remains studiously
general. Likewise, at ll. 53-58, in another connected decree part of the same
inscription, the Assembly prescribes that “the Council shall decide: that [the
presiding committee] allotted to preside in the next Assembly shall bring them
before the People and put their case on the agenda and submit the opinion of
the Council to the People that it seems good to the Council to praise Phyleus
son of Pausanias of Oinoe for his excellence and justice and crown him [with
a gold crown” etc. (trans. Lambert; δεδ[üχθαι τ‰ι βουλ‰ι· τοOς προέδρους, οa lν
λάχωσι προε[δρ]εύε[ι]ν [εœς τLν πρώτην ™κκλησίαν, προσαγα]γε¦ν αžτοOς πρ[Nς
τNν 䉵ον καM χρηµατίσαι, γνώµην δK ξυµβάλ]λεσθαι τ‰ς β[ουλ‰ς εœς τNν 䉵ον,
Uτι δοκε¦ τ‰ι βουλ‰ι ™παινέ]σαι Φυλέα Π[αυσανίου Ϝνα¦ον ˜ρετ‰ς Rνεκα καM
δικαιοσύνης κ]αM στεφαν[µσαι χρυσµι στεφάνωι). Once again, a body (the
Assembly) prescribes what should be submitted to another body (the Council)
and what that body should approve, and the focus is entirely on the individual
honorand. The contrast with ll. 19-23, which studiously keeps the formulation
general, is stark, and strongly suggest that, pace Hansen, the proposal of
modification of the µερισµός, far from being presented and understood as a
νόµος ™π᾽ ˜νδρί, was carefully drafted not to appear like one.

(31) HANSEN 2017, 276-277 seems to suggest that the νοµοθέται would be asked to ratify
the decree itself, but that is clearly not the case — a specific bill is to be presented to them, in
accordance with the specifications detailed in the decree.
82 MIRKO CANEVARO

Hansen’s other example, IG II3 1 452, once again fails to support his
contention that these modifications of the µερισµός were presented, intended
and understood as νόµοι ™π᾽ ˜νδρί. He states that “in the citizenship decree for
Peisitheides the demos asks the future proedroi of the nomothetai and their
epistates to have a supplementary law passed (prosnomothetesai), and the
content of that nomos is specified in the text: to order the apodektai every year
to transfer the money in question to the tamias tou demou and to order the
tamias to pay out the money to Peisitheides by the prytany. If the proedroi and
their epistates do not put such a supplementary law to the vote, each will be
fined 1000 dr. to be paid to Athena. The reference to the apodektai, the tamias,
and the proedroi of the nomothetai are general aspects of the nomos. But the
supplementary law is a nomos ep’andri in so far as Peisitheides is singled out by
name as the beneficiary of the supplementary nomos” (32). Here Hansen
misunderstands the grammar of the inscription, in reading all that follows ™ν δK
το¦ς νοµοθέταις τ[οOς προέδ]ρους, οa lν προεδρεύωσιν, [καM τNν ™]πιστάτην
προσνοµοθετ‰[σαι at ll. 41-42 as the content of the supplementary νόµος to be
approved by the νοµοθέται — both τN ˜ρ]γύριον το¯το µερίζειν τ[οOς
˜ποδ]έκτας τµι ταµίαι το¯ δήµ[ου εœς τN]ν ™νιαυτNν Rκαστον and the following
Ž δK τ[αµίας ˜π]οδότω Πεισιθείδει κατά [τήν πρυτ]ανείαν Šκάστην. Because this
second provision mentions explicitly Peisitheides, the law to be submitted to the
νοµοθέται must be a νόµος ™π᾽ ˜νδρί.
In fact, the verbal usage in the decree should have alerted Hansen to the fact
that only the first of the two provisions is in fact the object of προσνοµοθετ‰σαι,
not both. All the infinitives that we find in the decree (indicating its provisions),
up to προσνοµοθετ‰σαι, are governed, as normal in decrees from Athens and
elsewhere, by an enactment clause such as δεδόχθαι τµι δήµωι (this is in lacuna
in the inscription, but we know it must have been in the decree). All these in-
finitives are in the aorist (to indicate the punctual act of promulgation)
προσνοµοθετ‰σαι at l. 43 is no exception, but µερίζειν at l. 44 is the only present
infinitive, and is not governed, as the others, by the enactment formula of the
decree, but rather by προσνοµοθετ‰σαι itself. After that, the inscription moves
from infinitives to imperatives (ἀ̓ποδότω at l. 47 and φειλέτω at ll. 50-51), which
can only indicate, as they are found in the decree, direct commands of the decree
(and not indirect commands to be approved elsewhere, hypothetically, in the
future). The move to the imperatives is in fact probably an attempt to avoid
confusion, because further aorist infinitives after προσνοµοθετ‰σαι may have been
misunderstood as objects of προσνοµοθετ‰σαι, and therefore as the contents of
the law still to be approved (by the νοµοθέται), and not of the decree currently
being approved. It is clear therefore that the order expressed by ἀ̓ποδότω at l. 47
is not (as µερίζειν at l. 44 was) part of the law to be approved by the νοµοθέται,

(32) HANSEN 2017, 277.

 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 83

but part of this very decree. And that this is the case is even clearer because of
the second imperative, φειλέτω, at ll. 50-51: the fine prescribed by this imperative
is intended for the πρόεδροι and the ™πιστάτης meant to submit the supplementary
law to the νοµοθέται (if they fail to do so), and can only therefore be part of the
decree itself, not of the supplementary law to be approved — that would be
absurd! To sum up, Hansen’s attempt to argue that the supplementary laws that
these decrees ordered to submit to the νοµοθέται were phrased as νόµοι ™π᾽ ˜νδρί,
with explicit or implicit reference to the actual honorands, is misguided, based
on the misreading of the relevant inscriptions.
Hansen is moreover aware that “none of the three decrees specifies that the
decision to refer the case to the nomothetai must be approved by the majority of
a quorum of 6000 citizens, as prescribed in the law quoted in Andokides”. If these
additional νόµοι were νόµοι ™π᾽ ˜νδρί to be approved with a special procedure
involving a preliminary vote by secret ballot with a quorum of 6,000, we should
expect the decrees to mention this vote. Hansen counters, however, that “similarly
the provision that a citizenship decree must be ratified by a majority of a quorum
of 6000 is not mentioned in any of the citizenship decrees preserved on stone” (33).
This is simply not true: the ratification vote is in fact explicitly mentioned, with
the same formula (τοOς δK πρυτάνεις δο¯ναι περM αžτο¯ τLν ψ‰φον τµι δήµωι εœς
τLν πρώτην ™κκλησίαν), in all 80 extant naturalisation decrees between 385/384
and 229 BCE (34)! The formula does not explicitly state that the vote should be
secret and with a quorum of 6,000, but this was clearly understood — that was
the only form of ratification available for citizenship grants according to the rel-
evant law, discussed at [Dem.] 59.89.
I should add that, also in the other instances in which we know that the
Athenians used a vote by secret ballot with a quorum of 6,000, that vote is
normally mentioned explicitly. This is the case with eδεια, used in the fourth
century to authorise discussion, proposals and votes on matters pertaining
eτιµοι and public debtors, and in the fifth century, for instance, prescribed in
Callias’ decree (IG I3 52 ll. 16-18) (35). In the accounts of the treasurers of
Athena (IG I3 370), when eδεια is needed in accordance with Callias’ decree, it
is explicitly mentioned (ll. 15; 30; 63-64; and possibly elsewhere). Likewise, the
law preserved in a reliable document at Dem. 24.45, to do with eτιµοι and
public debtors, requires a preliminary vote of eδεια and explicitly mentions that
the vote should be secret and with a quorum of 6,000 (36). In fact, even the
decree of Patrocleides about eτιµοι and public debtors, which I believe to be a

(33) HANSEN 2017, 278.

(34) These are items D10 to D89 in OSBORNE 1981-1983, which reports the formula (as A
3) usefully in the checklist at pp. 16-22 of volume I.
(35) On fourth-century eδεια see CANEVARO 2013a, 127-132. On fifth-century eδεια see
ESU forthcoming.
(36) On this law see CANEVARO 2013a, 127-132.
84 MIRKO CANEVARO

forgery but Hansen believes to be authentic, explicitly mentions the preliminary

vote of eδεια by secret ballot and with a quorum of 6,000 (37)! Pace Hansen,
when the Athenians need to hold, or have held, a vote by secret ballot and with
a quorum of 6,000, they say so.
The standard ratification formula for naturalisation decrees (τοOς δK
πρυτάνεις δο¯ναι περM αžτο¯ τLν ψ‰φον τµι δήµωι εœς τLν πρώτην ™κκλησίαν)
which refers to the vote by secret ballot with a quorum of 6,000 at the next
Assembly meeting, is in fact found also in one of the inscriptions discussed in this
article, IG II3 1 452, which grants citizenship to Peisitheides of Delos. The decree
explicitly prescribes that “the πρυτάνεις shall put the vote about him [i.e. about
his citizenship] to the People at the next Assembly” (ll. 24-25: τοOς δK πρ[υτ]άνεις
δο¯ναι περM αžτο¯ τLν ψ[‰φ]ον τµι δήµωι εœς τLν πρώτην ™κκλ[ησ]ίαν). By citing
the vote of ratification, the decree (as all naturalisation decrees!) scrupulously
notes the need for a secret vote of ratification with a quorum of 6,000.
IG II3 1 452 enacted two main separate measures — citizenship, and the
one-drachma pension — both requiring a further step to be conclusively
approved and operative: the ratification of citizenship in the next Assembly
meeting; and the vote of the νοµοθέται on the modification of the µερισµός. If
Hansen were right and the Athenians were in fact using a special procedure for
νόµοι ἐ̓π’ ἀ̓νδρί involving authorisation by secret vote to enact the modification
of the µερισµός, we should expect the drafter of the decree to be as scrupulous
about this side of the procedure as with the naturalisation side, and therefore to
mention that a preliminary secret vote in the Assembly (with a quorum of six
thousand) was necessary before the νοµοθέται could examine the proposal for
the modification of the µερισµός, in the same way as he mentions that a similar
vote is necessary for ratifying the grant of citizenship (38). Yet he does not. On
the contrary — and this is even more decisive — the decree (ll. 48-53)
prescribes that the πρόεδροι and the ™πιστάτης, if they fail to put the request to

(37) CANEVARO, HARRIS 2012, 100-110, with counter arguments in HANSEN 2015. See now
CANEVARO, HARRIS 2017 for a full rebuttal and for additional arguments that strengthen the case
against authenticity.
(38) HANSEN 2017, 277-278 seems to imply that the same secret vote with a quorum of
6,000 meant to ratify the citizenship grant would have also been understood as authorising the
discussion before the νοµοθέται of the νόµος ἐ̓π’ ἀ̓νδρί. This is impossible, for various reasons:
first, these are two separate measures, which could not be conflated — what if the Athenians at
the next Assembly were still happy to ratify the citizenship grant but chose to object to the νόµος
ἐ̓π’ ἀ̓νδρί which modified the µερισµός for the purpose of providing the pension? They would
have to accept or reject both. Second, these are two separate procedures, completely different
from one another — one is a vote ex post integrated in the normal Assembly procedure; the other
a vote ex ante part of the νοµοθεσία procedure. Third, the secret vote with a quorum of 6,000 is
mentioned specifically in the decree in connection with citizenship. The issue of the pension, and
of the procedure to provide the funds for it, comes later, in a completely separate section of the
decree — the two sections are not meant to be connected, but rather to define what was needed
respectively to complete the enactment of the two separate measures.
 HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 85

the vote before the νοµοθέται at the first available session, should be fined 1,000
drachmas each. The prescription is phrased as direct and absolute, not as
conditional on a successful preliminary secret vote with a quorum of 6,000 in
the Assembly, and it would be absurd if the very possibility for the πρόεδροι and
the ™πιστάτης to bring the proposal to the νοµοθέται depended on a preliminary
vote in the Assembly, on which πρόεδροι and ™πιστάτης had no control. It
would be paramount to forcing them to break the law in order to avoid the fine!
To conclude, pace Hansen, IG II3 1 327, 355 and 452 did not prescribe that
the πρόεδροι and the ™πιστάτης should submit modifications of the µερισµός to
the νοµοθέται as νόµοι ™π᾽ ˜νδρί, to be enacted through a special procedure
dedicated to νόµοι ™π᾽ ˜νδρί, and involving a preliminary vote by secret ballot
with a quorum of 6,000. These modifications were instead intended, presented
and understood as general νόµοι, and as such were to be enacted through the
normal procedure of νοµοθεσία. There was no specific rule, in Athenian law,
making an exception to the fundamental rule that νόµοι ™π᾽ ˜νδρί were
forbidden. The solution to the puzzle of these three decrees is not to postulate
a specific rule — a procedure — that made what they proposed acceptable and
legal. We should rather focus on the phenomenon itself: throughout the fourth
century institutional practices connected to νοµοθεσία developed in such a way
as to “normalise” ad hoc modifications of the µερισµός law, without anybody
(apparently) challenging them in court as ad hoc and therefore incompatible
with the status of laws. This is the phenomenon I plan to investigate next (39).

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WELSER 2011 = C. WELSER, Dēmos and Dioikēsis: Public Finance and Democratic Ideology
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