Edwin Carawan
Athenian lawsuits against laws and decrees are often treated as ancient parallels to the modern remedies against unconstitutional measures: the graphai against unlawful decrees (παρανόμων) and against making law that is “unfitting” (νόμον μὴ ἐπιτήδειον θεῖναι) defended the politeia much as the US federal courts deal with laws and decisions at odds with the Constitution. Of course the Athenians had no foundational document quite like modern constitutions, and their suits against paranoma were grounded in narrow legalities (such as “no crowning before accounting”); but they drew upon a litany of laws to construct constitutional principles, thus to reinforce those formal constraints (Sundahl 2003). The suit against “unfitting” legislation supposedly served the same purpose; indeed, for much of the 19th century the two were considered synonymous designations for the same procedure. Then Athēnaiōn Politeia (59.2) was found to list the γραφὴ νόμον μὴ ἐπιτήδειον θεῖναι (=gnmet) as a separate recourse. Scholars grudgingly adapted to the distinction but seem to labor under the old assumption, that mē epitēdeion describes the same kind of violation as paranomon: the targeted measure contradicts the law per se. This paper takes up the neglected question: What did it really mean “to make unfitting law”? Let us reconsider the original context alongside the later cases.
Soon after democracy was restored in 403 BC, the Athenians devised gnmet in the course of reconstructing the corpus of laws and framing new procedures for lawmaking (Wolff 1970, followed by MacDowell 1975, 2009). Unfortunately, most of the evidence comes from Demosthenes’ speeches for gnmet in the 350s, Against Leptines’ Law and Against Timokrates (orations 20 and 24), and there are reasonable doubts about the authenticity of documents inserted in the latter (Canevaro 2013). The early Repeal Law in Dem. 24.33, however, seems to derive from reliable sources, consistent with the orator’s argument but independent of his account, and it includes a singular reference to the original law for gnmet. This Repeal Law ensures the integrity of the corpus: standing laws can be repealed only by nomothetai (jurors empaneled as legislators), and, for new legislation, old laws in conflict must be repealed. Demosthenes cited the Repeal Law in that regard, because Timokrates had not bothered to repeal the statutes in conflict with his measure. But, in its concluding provision, the Repeal Law gives further recourse that is not indicated in Demosthenes’ argument: even if one repeals old laws but introduces a measure that is nonetheless in conflict with others or is “unfitting for the demos,” he can be prosecuted under the law already in place (ὃς κεῖται), “if anyone make unfitting law.” In that application, before the Repeal Law, gnmet targeted laws on some other criterion, not simply to avoid conflicting rules.
Now, in the new framework for lawmaking (post 403), graphē paranomōn could be used against decrees, including those that empaneled nomothetai, but it proved inadequate against measues that were technically defensible yet created financial inequity, as in Lysias’ Against Theozotides (Loomis 1995) and Against Nikomachos (Carawan 2010). Similar issues loom large in Dem. 20 (exemption from liturgies) and 24 (avoiding additional penalties). Moreover, the pattern of usage suggests that “unfitting” nomoi were those that conflict with vital interests of the community beyond what statute prescribes: epitēdeia are constructed from cost-and-benefit or from the “deserving” character of citizens and officers (e.g., Dem. 20.83-9). Subsequent reforms focused on the integrity of the laws as text, but the original distinction was not lost: Thus Demosthenes condemns Timokrates’ measure predictably as “contrary to all the laws,” but also as “unfitting” because it cheats the city of revenue and does the people no good (24.1, 68).
In this respect the charge that a nomos is “unfitting” represents the other side of the debate in modern judicial review, not the defense of supreme statute: it defends the compelling public interest that may outweigh the letter of the law.