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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it, Draco produced the first written constitution of Athens, which stood for about 30 years, before being substantially repealed (or replaced) by Solon.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?

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    it doesn’t seem like the “severe” negates the “existing constitution” The point here is that Draco codified existing laws, but made all the punishments harsher. That why it was the peculiar part. There's nothing peculiar at all if he just wrote down all the laws that already existed without changing anything.
    – Semaphore
    Sep 10 '20 at 18:14
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In tradition, yes, in contemporary times likely no

First of all, we must establish that the original text of Draconian constitution is lost to us. All we have are some fragments and anecdotal evidence of them being very severe as mentioned by Aristotle, Plutarch and others. What did remain of them in later Athenian laws (like Solonian constitution) are parts about killing specifically. In fact, as we can see, they were republished at a later date. Interestingly enough, they do not appear to be so harsh - punishment for killing without forethought was not death but exile, and the killer himself had certain protection under the law. About the person of Draco himself we also have very little knowledge. Except being Athenian and most likely noble, everything else is a matter of legends, even the manner of his death.

What we do know with some certainty is that Draco's laws were used as a sort of bogeyman by latter lawgivers. Something like, if you complain about harshness and inequality under the law, you would be reminded that our elders endured even harsher laws. The Solonian constitution is remembered as the one replacing Draco's laws, and although again we do have only fragments of it, it is supposed to be more lenient. Note that ancient writers like Aristotle use Draco as a symbol of severity, and do that as already established fact. This show that the tradition about Draco's draconian laws already existed a few hundred years after his death (Draco supposedly lived 650-600 BC, Aristotle 384–322 BC, Solon 630–560 BC). This also establishes that Draconian laws in their original form didn't last long.

This now leaves us with the question, why did Athenians even accepted such harsh laws? When we dig a little deeper, and of course if we accept that such laws actually existed outside of legends, we conclude that the severity of the law was aimed at lower classes. Supposed death penalty for stealing cabbage, but would a noble steal cabbage? Debtor forced into slavery, but only if of a lower status then creditor. On the other hand, the killing of a low status person could be deemed "accidental" and end in exile (even that could be later solved by "reconciliation" or pardon by ten members of the phratry ) . If Draco's laws ever existed, they were likely a codification of exiting practice with established inequality, rather then something new and revolutionary. As such, they only became draconian when Athenian society started moving towards democracy, and that did start in the time of Solon.

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    Ah, I hadn't found out about the republishing, that's a good tip. I was wondering because Demosthenes implies that he read them on a stone slab in one of his speeches. I was wondering if this was literal or rhetorical. This also help me see that the reason that "Draco and Solon" are used together as "wise" and "just" lawgivers in the 4th century BC, may be similar to the way that rhetorically, more recent laws or amendments are sometimes ascribed to "The Founding Fathers".
    – Ben Murphy
    Sep 17 '20 at 8:44

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