There is a lot of talk about “draconian” laws at the moment, which got me thinking about Draco.
As I understand it, Draco produced the first written constitution of Athens, which stood for about 30 years, before being substantially repealed (or replaced) by Solon.
While the punishments in the code were quite severe (it seems likely that the only punishments in the code are death or banishment), as far as I can tell the system it replaced was blood feuds and personal vengeance. Were the punishments in the newly codified law more severe than that?
Aristotle says, in The Athenian Constitution, about the law before Draco:
The Council of Areopagus had the official function of guarding the laws, but actually it administered the greatest number and the most important of the affairs of state, inflicting penalties and fines upon offenders against public order without appeal [...]
So it seems like before the law was codified, it was essentially whatever the Aristocracy said it was. (Draco was a member of that Aristocracy, so the code still heavily favoured them.)
In Politics, Aristotle seems to imply that Draco’s laws were merely the existing laws written down:
There are laws of Draco, but he legislated for an existing constitution, and there is nothing peculiar in his laws that is worthy of mention, except their severity in imposing heavy punishment
(Note: While this appears to answer the question, saying that they are peculiar in imposing heavy punishment, Politics is primarily a work of philosophy, and I think the broader passage here is more of a categorisation of different laws, not intended as a history per se. So my read on this passage is “Draco codified the existing law. That law is unremarkable except for the fact that it imposes heavy punishments.” But I haven’t found any more modern works discussing this.)
When Plutarch wrote about Solon repealing the code he said:
Therefore Demades, in later times, made a hit when he said that Draco's laws were written not with ink, but blood. And Draco himself, they say, being asked why he made death the penalty for most offences, replied that in his opinion the lesser ones deserved it, and for the greater ones no heavier penalty could be found
But this doesn’t sound to me like he actually thinks this is true, more like he is relaying what “they” say about Draco. He is also writing hundreds of years later.
Did Draco just have the thankless job of writing down the laws of an unjust society, or is there any reason to believe that his laws were unusually “draconian” compared to the situation they replaced, as in Plutarch’s anecdote? Was a petty thief more, or less likely to be killed for it after the code was introduced?