|Lawmakers and Ordinary People in Aristotle*
Paul Bullen (1996)
[Pages 229-42 (ch. 12) of Justice v. Law in Greek Political Thought, ed. Leslie G. Rubin (Lanham, Maryland: Rowman & Littlefield, 1997)]
Aristotle says that while it is democratic for all matters to be deliberated upon by all citizens and oligarchic for all matters to be deliberated upon by only some, it is republican or aristocratic (i.e., correct) for some matters to be deliberated upon by some citizens and other matters to be deliberated upon by all.1 Among the matters about which there must be deliberation, Aristotle lists laws and electing and auditing officials.2 In this essay I extrapolate from things Aristotle says to the conclusion that he wants laws to be deliberated about (i.e., framed) by some and legislative officials to be deliberated about (i.e., elected and audited) by all, at least in his second-best ideal.
Aristotle indicates that ekklesiasts (members of the popular assembly) and legislators are not the same people when he says that the decision of the legislator is prospective and universal rather than partial, while the ekklesiast and the dikast [lay judge in popular courts] decide about what is immediately present and definite (Rhet I.1.1354b5-8). He reinforces this position and gives a reason with his statement that it is most proper for correctly-established laws themselves to determine everything to the extent possible and for as little as possible to rest with the ones deciding (hoi krinontes) because, for one thing, it is easier to find one or a few who are prudent and capable at legislating or judging than it is to find many (Rhet I.1.1354a31-b1). If the ones deciding include ekklesiasts (a position I defend in the appendix), this passage tells us that Aristotle expects the assembly to be filled with average people.
Most people, by definition, are average; it is, however, an empirical claim that average people (hoi tychontes) are not given to deep thought, but are empty and vacant of all thoughts and, once stimulated, carried away by impulse.3 Even if Aristotle produced models in which all citizens are good men, this is not an assumption of his realistic thinking. While it is possible for one or a few to be outstanding in virtue, where more are concerned it is [p. 229 precedes, p. 230 follows] difficult for them to be proficient with a view to virtue as a whole (III.7.1279a39-b1). Good birth and virtue exist in few persons . . . . Nowhere are there more than a hundred well-born or good persons (V.1.1301b40-1302a2). It is not possible for a polis to be made up entirely of good persons (spoudaioi).4 Because average people are not virtuous, Aristotle wants their power limited. At least one way he wants it limited is by laws which guide the exercise of their tasks as officials. He wants laws to do this in part because he expects lawmakers to be more prudent than average people.5 We, in turn, can expect that Aristotle would not want the popular assembly to make the laws. This conclusion is possible even if we do not take the ones deciding to include ekklesiasts--as long as we make the safe assumption that, like the popular courts, the assembly includes a preponderance of average people. And Aristotle concludes his most populist chapter (III.11), in which he defends the idea of allowing average people some role in government, by saying that it is especially evident that correctly-established laws should be authoritative and that the official, whether one person or more, should be authoritative only concerning those things about which the laws are completely unable to speak precisely (on account of the difficulty of making clear, universal declarations about everything).6 The timing of this comment suggests to me that he is reassuring his audience that the power of average people will be restricted. Even if average people participate in governance, they are really subordinate to the good men who made the laws.
That the law should be the product of especially prudent people follows from the view that law is or ought to be reason proceeding from a sort of prudence and intellect (logos ôn apo tinos phronêseôs kai nou) (NE X.9.1180a21-22) or, as Aristotle puts it in the Protrepticus, a sort of prudence and reason proceeding from prudence (phronêsis tis kai logos apo phronêseôs estin).7 Law plays a crucial role in Aristotles social theory. Its primary function is not to control vice (i.e., to rule), but to make virtue;8 and it is not the average person (ho tychôn) who can make laws capable of having this effect, but if anyone can it is the one who knows (ho eidôs), that is to say, the one who possesses legislative science and experience.9 If those who deliberate about the laws should be citizens of above average prudence, and if the assembly is to be open to all citizens, a small council of law guardians would be a better place to make laws than an assembly.10
Nicomachean Ethics VI.8 compares the relationship between those who make laws (nomoi) and those who make decrees (psêphismata) to that between master-craftsmen and handicraftsmen (cheirotechnai) (NE VI.8.1141b29), and the relationship between legislative science and practical political science to that between a master craft (architektonikê) and a [p. 231 follows] subordinate craft (1141b25). This suggests that those who make laws and those who make decrees are different people, and that the latter should be subordinate to the former. Legislative science is concerned with universals (laws), while practical political science is concerned with particulars (decrees) (NE VI.7-8.1141b21-28). Although laws rule universally, ekklesiasts must decide in particulars (IV.4.1292a33-4, NE VI.8.1141b25-28, Rhet I.1.1354b7-8).
How should people fit to be legislators be determined? Though laws are a deliberative matter, Aristotle would call the members of small councils of deliberators officials. He speaks, for example, of circumstances under which it might be advantageous to allow all to advise, but have the officials deliberate.11 The possible criteria for choosing officials from some special persons are property, family, virtue, or some other such thing (IV.15. 1300a16-17). Of these, Aristotle would prefer (relevant) virtue: prudence, justice, ability, political virtue, political capacity--or generally speaking, merit.12 As we saw, electing and auditing officials is also on the list of matters for deliberation.13 While lawmaking is best handled by some (i.e., some kind of small council of wealthy or talented citizens; IV.14.1298a40-b5, 15.1301a13-15), electing and auditing legislative officials is best handled by all (i.e., a popular assembly).
In III.11 Aristotle says that having the multitude of citizens [, namely,] . . . whoever is not wealthy and has no claim at all deriving from virtue . . . participate in the highest offices is not safe; for through unjust character they would necessarily act unjustly, and through lack of prudence they would necessarily make mistakes (III.11.1281b23-28). Yet he says that denying all participation to the dêmos is risky. To exclude them completely is likely to make the polis filled with enemies (III.11.1281b30). What is left, then, is for them to participate in deliberation (bouleuesthai) and decision (krinein) (III.11.1281b31). The wording is similar to the definition of a citizen as one who has the right to participate in deliberative (bouleuetikê) or decisional (kritikê) office.14 In III.11, as an example of deliberation and decision, Aristotle immediately mentions, in connection with Solon and certain other legislators, electing and auditing officials (1281b31-38). In II.12 he had already approvingly said that Solon seems . . . to have granted only the most necessary power to the dêmos, that of electing to office and auditing; for if the dêmos does not even have authority over this they would be enslaved and an enemy (II.12.1274a15-18). If laws should be in the hands of some, the electing and the auditing of officials should be in the hands of all.15
Aristotle describes the best form of democracy, the one closest to a republic, as based on farmers. He particularly likes them because they are [p. 232 follows] too busy to assemble frequently. Whatever interest they may have in honor rather than profit is satisfied if they are allowed to elect and to audit officials (VI.4.1318b6-22). It is both advantageous to and customary for such a democracy to have all elect to offices and audit and judge (dikazein), but for persons elected on the basis of assessments to hold offices (and the greater offices from the greater assessments), or else to elect none on the basis of assessments, but rather those capable of bearing the burdens associated with holding office, viz., the wealthy (1318b27-32; see IV.4.1291a36ff, V.8.1309a6ff, II.11.1273a24ff, Rhet. ad Alex 2.1424a12-20, 38.1446b21-23).
In addition to the stability that controlled popular participation brings,16 electing officials is a task potentially suited to an assembly because under the right conditions people who are not themselves prudent can discern prudence in others. Aristotle approves of Hesiods division of people into three kinds: He who understands everything himself is best of all; he is worthy who also listens to one who has spoken well; but he who neither understands it himself, nor takes to heart what he hears is a useless man.17 Aristotle shares a belief in this capacity of average people with Plato, who wrote that
the many are not as deficient in their judgment about who among the rest are wicked or good as they are in the possession of virtue themselves; for there is a certain divine shrewdness even in bad persons (kakoi), such that very many even of those who are very bad can distinguish well . . . better humans from worse. (Laws 950b-c)
So, even if it is the dêmos that is doing it, voting can be an aristocratic method of selection.18
Still, certain conditions must obtain. Most important, participation must be collective. Solon and the other legislators, after all, do not allow [average persons] to hold office alone (III.11.1281b34). It is only when each average person has only marginal influence that average persons as a group can make good decisions.19 Also, the polis should not surpass a certain size because to distribute offices according to merit, each citizen must know what sorts of people the other citizens are; but where it turns out that they do not know this, then what pertains to offices . . . must go badly (VII.4. 1326b14-18).
Aristotle suggests the need for keeping ones eyes on the specific institutional arrangement of election when he says that traditional democracies can turn into extreme ones because of the wrong way of letting the dêmos elect officials: Where offices are 1) elected to [as opposed to being assigned by lot] 2) by the dêmos 3) without assessments, those seeking office establish the dêmos as having authority over the laws in order to make themselves popular. This can be obviated or minimized by having election [p. 233 follows] take place by tribe (phylê) (V.5.1305a29-34). Aristotle is less prone to make specific policy recommendations, but Plato suggests a number of ways this electing could be done. Here is one, for choosing euthynoi:
Each year . . . the entire polis should assemble . . . to present to God three men from among them. Each is to propose a man of not less than fifty years of age whom he considers to be the best in every way . . . . They pick out the half of the nominees who receive the most votes . . . . They are to judge among the rest by voting again, until three are left. In the first year they are to elect twelve such auditors (euthynoi), until each has attained the age of seventy-five, and afterwards three are to be added each year. (Laws 945e-946c; see also one of the methods for electing law guardians at 753b-d)
I do not want to assert that Aristotle would endorse this or that particular arrangement, as much as indicate his desire to adjust the mechanisms to achieve the right results.20
Even with these precautions, Aristotle expresses doubt that collective prudence can exist in the case of every dêmos and every multitude, although nothing prevents what was said from being true of a certain kind of multitude (III.11.1281b15-21), one that is not overly slavish (1282a 15-16). One wants him who can listen to one who has spoken well to vote, not him who neither understands it himself, nor takes to heart what he hears. Aristotle recommends, then, excluding from citi-zenship artisans and laborers and possibly merchants and farmers (I.13.1260a36-b2, III.5.1277b33-1278a26, VII.9.1328b33-1329a7, 1329a19-39), not to mention women, natural slaves, perioikoi (subordinate peoples, who are not slaves), and non-Greeks in general.
In his best polis, the multitude of citizens consists of men who have served as hoplites (heavy infantrymen) in their youth and are now supported by land farmed by slaves or perioikoi (VII.9.1329a2-26, 10.-1330a23-33, II.9.1269a34-35). Under these conditions there need be no legal limit on which citizens can be nominated for legislative office, and the assembly should have the power to veto legislation (cf. IV.14.1298b32-1299a1). However, in the more likely situation that some unideal people are citizens, there should be an assessment required for higher office: All the offices established by Solon were to be chosen from among the notables (gnôrimoi) and well-off persons (euporoi)--from the first three classes; the fourth class, the laborers (thêtes), had no part in any office (II.12.1274a18-21), although they were allowed in the assembly and in the popular courts.
The multitude can also act as a check on those in higher office. Generalizing from the benefits of end-of-term audits (euthynai) in farmer democracies,[p. 234 follows] Aristotle says that
to be left hanging (epanakremasthai), to be unable to do whatever comes to mind, has its advantages. The right (exousia) to do anything one wishes leaves [the political community] defenseless against what is base in each human. So [with checks] there necessarily results that most desirable of conditions in a constitution: good people (epieikeis) rule without falling into error, while the multitude (plêthos) is not deprived. (VI.4.1318b38-1319a4)
Even good people need limits to keep them from falling into the error of exploiting the multitude.21
This two-way policy of excellent men making laws which control ordinary men and ordinary men electing and putting a check on the excellent could perhaps be called aristocracy with the approval of the multitude.22 It is supported by Aristotles recommendation that oligarchies convince members of the dêmos to participate in the deliberations of the assembly, while also limiting the power of that assembly by establishing a separate body of preliminary councilors or law guardians, for in this way the dêmos will participate in deliberation but will not be able to undo anything to do with the constitution (IV.14.1298b30). The assembly would only vote on decrees prepared by the preliminary council, or possibly even do no more than give advice (1298b26-1299a1). In republics the opposite happens with decrees (the few have veto-power only). I would contend that with respect to laws it would be the assembly that has only veto power.
Aristotle says that to be a citizen is to be entitled to participate in an office that deliberates or makes decisions concerning the affairs of the polis. However, this definition may mislead since the extent of participation in deliberation and decision-making is not stated. What issues is one necessarily entitled to deliberate about? How much influence is one necessarily entitled to have in their resolution? The answer to both questions seems to be not much. The content of citizenship is not quantified because the definition does not say who ought to be awarded citizenship in the first place. The appropriate extent of citizen power will depend on who is allowed to be a citizen. The baser the dêmos, the narrower and weaker Aristotle would want their influence to be. Perhaps the right account is that one can be a citizen in different degrees. One has the quality of being a citizen to the extent of ones right to participate in office. As a practical matter, the minimum standard of citizenship is the right to vote in an assembly which elects and audits at least some of the poliss officials. Aristotle wants some average people to be citizens--but attenuated ones--so they will do no harm and do some good. Collectively they can make good decisions about some things, and they can act as check on the political power of others. Although [p. 235 follows] it is a task for the popular assembly to elect those officials, including the ones who make the laws, and hold them to account, under no realistic circumstance does a minimum definition of a citizen include the right to participate in the drafting of laws.
That Rhetoric I.1.1354a31-1355a3
In the first chapter of the Rhetoric, Aristotle gives three reasons why lawmakers should minimize the discretion of kritai (decision-makers or judges) by being as precise and as comprehensive as possible in the laws they make (Rhet I.1.1354a31-b16). It is usually assumed that the kritai are dikasts. I want to argue that Aristotle is consistently referring to ekklesiasts as well. One reason readers may not see this possibility is that in the discussion leading up to the three reasons Aristotle is in fact talking about issues related to judicial rhetoric in particular. Another reason is that throughout the presentation of the three reasons he uses the words kritês, krinein, and krisis, which can be, and usually are, translated as judge, judging, and judgment, respectively. This encourages the impression that the topic is still exclusively judicial.
Yet these words can have a broader application. (To avoid confusion, I will translate kritês as decision-maker, krinein as deciding, and krisis as decision.) When distinguishing the three types of oratory, Aristotle says that those who listen to ceremonial speeches are thêatai (spectators), while both dikasts and ekklesiasts, who listen to judicial and deliberative speeches respectively, are kritai.23 Officials are said to engage in deliberation, decision (krinai), and command (Pol V.15.1299a 25-28). The deliberative element of the constitution is said to make kriseis in five areas (Pol IV.14.1298a8; see also VII.8.1328b14-15). It is only when Aristotle uses dikastês, dikazein, and dikê that we can be fairly sure than he means judge, judging, and judgment (or trial) in the specifically judicial sense. Having made a case that these words can have a broader use, let me show why I think they actually do in Rhetoric I.1.
The Rhetoric opens with a discussion of the nature of rhetoric and the tendency of previous manual writers to emphasize secondary, non-rational matters (Rhet I.1.1354a11-18). This, we are told, is because in many courts irrelevant talk is allowed (1354a18-26) and previous writers have focused on judicial rhetoric at the expense of the more noble political kind (1354b22-[p. 236 follows] 1355a3). Aristotle recommends that such speech be made illegal, as it had been for the Council of the Areopagos. If it were, litigants would have
nothing to do outside showing that something is or is not the case or did or did not happen. Concerning [an acts] importance or triviality, justice or injustice, insofar as the legislator has not already determined this, the dikast should [come to] know this on his own, and not learn it from the litigants. (Rhet I.1.1354a26-31)
The only issue that should be of concern to the litigants is that of fact, mainly past fact.
Not only should procedural law leave litigants with little to do, but substantive law should do the same for dikasts. Anticipated where Aristotle said insofar as the legislator has not already determined (1354-a29-30), Aristotle makes this latter point clear in the next sentence, saying that it is most proper for correctly-established laws themselves to determine everything to the extent possible and for as little as possible to rest with the ones deciding (hoi krinontes) (Rhet I.1.1354a31-33; see Plato, Laws 876). It is the ones deciding and cognate words in the next sentence that I take to include ekklesiasts as well as dikasts. Although Aristotle brings up the importance of detailed laws from a consideration of the problems of popular law courts (and not of assemblies or of magistracies), he expands his subject matter to include the effect of laws on ekklesiasts. Although this is not made explicit until the third of the three points, it is hinted at in the second. The first, however, gives no clue of the broader application.
The first argument is that it is easier to find one or a few who are prudent and capable at legislating or judging (dikazein) than it is to find many (1354a33-b1). Here, Aristotle really does only mention the functions of adjudicating (dikazein) and legislating, which would legitimately encourage the belief that his concern is only with dikasts. There is no reason for the first-time reader to think that he is considering political deliberation too. It is what he says later that indicates that the subject has already broadened and that even this statement should or could be taken to include ekklesiasts.
Aristotles second point is that legislation comes from having thought over much time, while decisions (kriseis) are made offhand; so it is difficult for the ones deciding (hoi krinontes) to render well what is just and what is advantageous (Rhet I.1.1354b4). The juxtaposition of what is just (to dikaion) and what is advantageous (to sympheron) suggests that both judicial and deliberative circumstances are being talked about since Aristotle says that advantage is the end in deliberative rhetoric, aimed at ekklesiasts, while justice is the end in judicial rhetoric, aimed at dikasts (Rhet I.3.1358b20-29; see also b30-37; I.10.1368b3ff).[p. 237 follows]
In the third reason Aristotle is explicit. He says that the foremost reason that it is most proper for correctly-established laws themselves to determine everything to the extent possible, and for as little as possible to rest with decision-makers, is that
the legislators decision (krisis) is prospective and universal rather than partial, while the ekklesiast and the dikast decide what is immediately present and definite. For them friendship, animosity, and private advantage are often entangled [with decision-making], with the result that they are unable to see the truth adequately: personal pleasure or pain clouds their decision-making (Rhet I.1.1354b4-11)
Aristotle here mentions ekklesiasts explicitly for the first time in Rhetoric I.1, and speaks of him as a kritês, making kriseis. Not only does he speak of the ekklesiasts deciding, but he even speaks of the legislators doing so.
In the next passage Aristotle adds to the earlier list of past and present fact (that something is or is not the case or did or did not happen [1354a28]), future fact:
As we say, then, the decision-maker (kritês) ought to be made authoritative over the fewest [or: least important, elachista] other things possible: whether something did or did not happen [dikast] or will or will not happen [ekklesiast] or is or is not the case-these it is necessary to leave resting with the decision-makers (kritai). For the legislator is unable to foresee them. (Rhet I.1.1354b11-16, emphasis added)
As mentioned, future fact is a concern of deliberative rhetoric aimed at the ekklesiast: An ekklesiast makes decisions about what will happen (Rhet I.3. 1358b4; see also 1358b3-4, 20-24), while a dikast makes decisions about past fact. Since Aristotle draws the same basic conclusion here, after having introduced ekklesiasts, as he did before his three reasons (It is most proper for correctly-established laws themselves to determine everything to the extent possible and for as little as possible to be left with the ones deciding [1354a 31-33]), I think we can read back into the earlier statements an applicability to deliberative rhetoric and ekklesiasts.
A bit later in the same chapter Aristotle uses kritai to mean only ekklesiasts when he says that in the assembly the decision-makers (kritai) themselves adequately guard against being misled by irrelevant emotional appeals (Rhet I.1.1354b31-1355a3). In conclusion, then, the arguments presented in Rhetoric I.1 concerning the need for exact laws to minimize the discretion of decision-makers apply to ekklesiasts as well as dikasts. An important part of the rule of law for Aristotle is its rule over the assembled dêmos.24 [p. 238 follows]
*I would like to thank Russell Hardin, Richard Kraut, Bernard Manin, and Fred Miller, Jr. for their comments. This paper is dedicated to the late Arthur W. H. Adkins. [back to beginning of article.]
1. Pol IV.14.1298a9-11, 34-35, b5-8. References are to the Politics and, unless otherwise indicated, to works by Aristotle, using the following abbreviations: NE = Nicomachean Ethics, Rhet = Rhetoric, Rhet ad Alex = Rhetoric to Alexander, Ath Pol = Constitution of the Athenians [published version mistakenly has Athenian Constitution]. In this chapter prudence represents phronêsis (often represented by practical wisdom). At IV.14.1298a7-9 Aristotle says that the responsibility for making decisions (kriseis) about these subjects must be distributed such that either a) all citizens are entitled to decide about all of them or b) only some citizens decide all of them, or c) some citizens decide some of them while all citizens decide the others. Option (b) is subdivided into either (i) one group of some deciding all matters, or (ii) one group of some decide some matters, with one or more other groups of some deciding the rest of the matters, with no matters being decided by all citizens. Aristotle indicates (IV.14.1298b5-13) a preference for at least some of the decision-making being carried out by the citizenry as a whole. Thus, he prefers option (c) to a variant option (ii) of (b) in which all citizens participate in decision-making but with no one area in which they all share. [back to source of footnote 1]
2. According to IV.14.1298a3-7, the deliberative element (to bouleuomenon) has authority concerning war and peace, alliances and their dissolution, laws (nomoi), [cases involving] death, exile, or confiscation, and the election and the auditing of officials. According to Rhetoric I.4.1359b19-24 the important subjects on which people deliberate (bouleuontai) and on which deliberative orators (hoi symbouleuontes) give advice are basically (schedon) five in number: finances, war and peace, protection of the countryside (chôra), imports and exports, and legislation (nomothesia). The main difference between the two lists is that the Rhetoric includes economic matters and does not mention capital cases or electing and auditing officials. According to the pseudo-Aristotelian Rhetoric to Alexander, the subjects of public speeches are seven in number; for our deliberations and speeches addressed to the council or to the dêmos necessarily deal with either sacred rites or laws or the constitution (politikês kataskeuês) or alliances and agreements with other poleis or war or peace or finance (2.1423a21-26). [back to source of footnote 2]
3. Div. Somm 2.464a21-24. On ho tychôn, see Ath. Pol 27.4-5, Pol II.8.1269a-6, II.9.1270b29, II.10.1272a30, II.11.1272b36, V.8.1308a33, 1309a9, Xenophon, Memorabilia III.9.10. Based on the Greek word for chance or fate (tychê), ho tychon could be translated any chance person, first comer, man on the Clapham Omnibus,ordinary person, person off the street, etc. [back to source of footnote 3]
4. III.4.1276b37-38. This statement is part of a conditional sentence, but I take to express Aristotles belief. [back to source of footnote 4]
5. Concerning Spartan ephors, Aristotle says that although they are just average people (tychontes) they have authority in the most important decisions. Hence it would be better if they did not decide (krinein) according to their own opinion but according to what is written, that is to say, according to the laws (II.9.1270b28-31). See also II.10.1272a37-39, b5-7. [back to source of footnote 5] [p. 239 follows]
6. III.11.1282b1-6. The laws rule ekklesiasts by making them liable to prosecution, should they propose decrees that could be construed as in conflict with the laws; see Demosthenes XXIII (Against Aristocrates) 87, 218 on Athenian constitutional law: No decree of the council or of the dêmos shall have more authority than a law. See also, Demosthenes XXIV (Against Timocrates) 30, Andocides I (On the Mysteries) 87 [11-12]. Cf. VII.2.1324b5-6. [back to source of footnote 6]
7. Iamblichus, Protrepticus 6 (37. 22-41. 5 Pistelli) in Aristotle, Fragmenta Selecta, ed. W. D. Ross (Oxford: Clarendon, 1955), 33. English translations can be found at Anton-Hermann Chroust, Aristotle: Protrepticus (Notre Dame, Ind.: University of Notre Dame Press, 1964), 15, 64-5; and at The Complete Works of Aristotle: The Revised Oxford Translation, ed. Jonathan Barnes (Princeton, N.J., Princeton University Press, 1984), 2408. Aristotle makes similar comments in other places, though not in his own voice. [back to source of footnote 7]
8. Pol III.9.1280b8-12; NE II.1.1103a17ff, b4, 3.1104b13-16, III.5.1113b23-1114a3, V.1.1129b19-25, 2.1130b22-24, X.9.1179a33-1181b2. [back to source of footnote 8]
9. NE X.9.1180b23ff. Aristotle contrasts ho tychôn with ho politikos anêr at V.8.1308a33-34. [back to source of footnote 9]
10. Aristotle generalizes that among boards of deliberative officials, the council (boulê) is democratic, the preliminary council (proboulê) is oligarchic, and law guardians (nomophylakes) are aristocratic (IV.14.1298b26-1299a1, 1299b30-1300a4; VI.8.1323a6-9). This, of course, depends on what one means by council etc. On the Council of the Areopagus as a guardian of the laws, see Ath. Pol 3.6, 4.4, 8.4, Isocrates, VII (Areopagiticus) 37-42, Aeschylus, Eumenides 680-710. See also Xenophon, Oeconomicus VI.14-19; Plato, Laws 752d-755e, 762d-e, 766b, 767e, 770a-c, 772a-c, 775b, 779c-d, 828b, 835a-b, 840e, 847c-d, 855c-d, 871c, 957c-b, 961a-b; Cicero, de Legibus III.20.46-47. It would be equally correct if we substituted for the Greek words Rule of the Many, Rule of the Few the expressions Rule by the Assembly, Rule by the Council (J. W. Headlam, Election by Lot, 92, as cited in Leonard Whibley, Greek Oligarchies: Their Character and Organization [Chicago: Ares, 1975 (1896)], 157n). [back to source of footnote 10]
11. IV.14. 1298b33-34. In Aristotles way of speaking it is quite possible to have deliberative officials (see IV.14.1298a8-9, 22-23, 26-27, 30-31, b6-7, 27-30, 32-34, 35-38, 38-1299a1, 1300b4-5, IV.15.1299a25-28, b30ff, VI.2 passim, VI.8.1322b12-17, 36-37, 39, 1323a6-9, III.1.1275a26-33; Plato, Laws 767a-b), even though he appears to make the deliberative and official functions of the constitution mutually exclusive: there are three parts in all constitutions . . . . [namely,] the part that deliberates about common matters, the part concerned with offices, . . . and third, the adjudicative part (IV.14.1297b37-1298a3). [back to source of footnote 11]
12. On political virtue, which includes prudence, as a basis for office, see III.1.1301a38-b1, 9.1281a4-8, 12.1283a21 (I take political and not military virtue to be intended here; cf. V.11.1314b22), III.13.1284a3-11, V.1.1301a38b1, VII.3.1325b10, III.17.1288a9. [back to source of footnote 12]
13. On electing and auditing officials, see II.12.1271a16-18, III.11.1281b33, 1282a26-27, IV.14.1298a6-7, VI.1.1317a5, 8, VI.3.1318a10, VI.4.1318b21-1319a4. [back to source of footnote 13]
14. III.1.1275b17-19; III.5.1277b37-38. According to the corrected definition, which appears at the end of III.1 (1275b13-19), these offices can be either definite (for a limited time) or indefinite (like regular ekklesiasts or dikasts). Apostle and Gerson are not only unliteral but interpretively incorrect in their translation of III.1.1275b17-20: A citizen of a state is said to be a man who has the right to participate in legislative or judicial office of that state (Aristotle's Politics, trans. Hippocrates G. Apostle and Lloyd P. Gerson [Grinnell, Iowa: Peripatetic Press, 1986], 73-74). Judicial as a translation of kritikê is perhaps understandable, but there is no justification for translating bouleuetikê as legislative. [back to source of footnote 14]
15. Aristotle mentions electing and auditing officials again at III.11.1281b33, 1282a1, 13-14, 26. Cf. VI.1.1317a8 vs. IV.14.1298a1. See also VI.4.1318b21-30. [back to source of footnote 15]
16. While Cretes ten cosmoi and Spartas similar five ephors both unfortunately consist of average people (tychontes) (II.10.1272a30), the Cretan constitution does not engender the solidarity as the Spartan does, because cosmoi are not elected from all the people, but only from certain families; and the elders are elected from among cosmoi (II.10.1272a31-34). In Sparta the people keep quiet because they share in the greatest office by being legally eligible for [p. 240 follows] election to the ephorate (II.9.1270b18-19). The [Spartan] dêmos shares in the greatest office and hence wishes the constitution to continue (II.10.1272a31-33). [back to source of footnote 16]
17. NE I.4.1095b10-13. Are average people like the quasi-rational part of the soul which, while not possessing reason itself, is able to obey reason (and hence deserves to be ruled politically, not despotically)? Although Aristotle makes a similar characterization about slaves, it seems to be in some way his view of ordinary free men. See I.5.1254b4-6, III.4.1277a15-17, 1278b28-29, VII.14.1333a16-18; NE I.7.1098a4-5, I.13.1102b28-33; cf. Pol I.13.1260b5-7. [back to source of footnote 17]
18. On election as aristocratic, see II.12.1273b40-41, IV.9.1294b7-13, IV.14.1298a26-28, and IV.15.1300b4-5 (and passim IV.15). Lot, by contrast, is democratic (VI.2.1317b17-38, Rhet I.8.1365b31-32). See also Rhet. ad Alex 2.1424a12-20. Taking his cue from Aristotle (and Guicciardini, Harrington, Montesquieu, and Rousseau), Bernard Manin provides his own reasons why the method of voting has aristocratic effects (Principles of Representative Government [Cambridge: Cambridge University Press, 1997]). [back to source of footnote 18]
19. III.11.1281a39-1288a39. This bears comparison with the jury theorem of the Marquis de Condorcet (1743-94). On matters of truth versus falsity, such as in a trial to determine whether someone is guilty of a particular crime, the average person has a view some fraction guilty and the remaining fraction innocent. Condorcets jury theorem says that, if each person is more likely to be right than wrong, a larger jury is more likely to be right than wrong, a larger jury is more likely to yield the truth than is a smaller jury. Having only a judge yields the worst error rate. With a very large jury the odds of error are vanishing small (Russell Hardin, One for All: The Logic of Group Conflict [Princeton, N.J., Princeton University Press, 1995], 206-7). Aristotle does say that humans have a natural disposition for the true and to a large extent hit on the truth (Rhet I.1.1355a15-17). [back to source of footnote 19]
20. See a criticism of a particular sort of two-stage selection process (electing from those already elected) at II.6.1266a26-27. Aristotle says that the five Spartan ephors should be elected from all, to be sure, but not in the way it is done now, which is utterly childish (II.9.1270b26-28). Cf. II.10.1272a32-35 (Cretan cosmoi elected only from certain families). [back to source of footnote 20]
21. Concerning the Spartan elders (gerousia), Aristotle says that it is better that they not go unaudited, as they do now (II.9.1271a5-6). And of the Cretan elders he says that it is not safe that they should go unaudited (II.10.1272a37). [back to source of footnote 21]
23. Rhet I.3.1358b-4-6, 20-24; see Pol III.15.1286a21-28, VII.8.1328b13-15; cf. VII.8.1328b22-33 (it seems that anankaion should be dikaiôn at VII.9.1329a4). [back to source of footnote 23]
24. Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law: Law, Society, and Politics in Fifth-Century Athens (Berkeley and Los Angeles: University of California, 1986), makes the following observation:
A new social and political order was created that retained the characteristic institutions of the Athenian democracy while subordinating the principle of popular sovereignty to the principle of the sovereignty of law (497).
He also states
[I]t is no exaggeration to say that the reconciliation agreement [between the oligarchs at Athens and the democrats at Piraeus in 403 BC, after the overthrow of the Thirty and before the restoration of democracy], including the amnesty, represents a triumph of nomos not only over arbitrary government but even over the kind of popular sovereignty that found its extreme expression in the clamor of the masses at the Arginusae trial that it would be a terrible thing not to let the dêmos do whatever it pleases (509-10).
Further on, Ostwald concludes
The written law . . . was now officially accepted as having precedence over [p. 241 follows] anything decreed by Council and Assembly to meet a particular situation, and any such decree was declared null and void unless it conformed to the code of written laws. There is evidence that this distinction was observed for most of the fourth century, except for the critical period between 340 and 338 B.C. (523-24). [back to source of footnote 24]
[end of article, p.241]