This paper is an attempt to revisit two key aspects of Drakon's legislation. The first is the nature of the legislation, where I want to test the stereotype of Drakon as draconian; the second is the influence of that legislation on the law code of Classical Athens, beyond the usual focus, in place since the Athenaion politeia, on the homicide law. The larger purpose is quite simply to help make a little better sense of Drakon's place in the history of Athenian law and the legal system.

I have nothing to say about Drakon the man.Footnote ¹ Already for Greeks of the Classical period Drakon was a shadowy figure. We get no patronymic, no biography; he simply emerges fully formed as a legislator. He may be wholly or in part a fiction.Footnote ² But for my present purposes Drakon the man is a distraction. We have a date for the legislation, which Ath. pol. 4.1 places in the archonship of Aristaichmos, which is generally taken to be in the region 624–621/620 in our chronology. There is no good reason to reject the dating. Written laws are beginning to emerge across Greece in this period and the dating is unlikely to be far wrong.Footnote ³ The crucial point is that in Athens as elsewhere someone wrote laws down, and we might as well call him (or them) Drakon.

The element of mystery is not just prosopographical. The laws too were (except for homicide) a distant memory for most Athenians by the fifth century. Our references to Drakon from the fifth century (when we first meet the name) are vague and tend toward caricature. We are told by the Ath. pol. (7.1) that after Solon the Athenians ‘no longer used Drakon's laws apart from those on homicide’ (τοῖς δὲ Δράκοντος θεσμοῖς ἐπαύσαντο χρώμενοι πλὴν τῶν φονικῶν). Though we shall see that there is reason to adjust this picture in terms of the amount of Drakonian law absorbed into Solon's legislation, at the level of physical text this is likely to be true; there is every reason to believe that in the Classical period the only valid inscribed texts identified as Drakon's (whether or not they were revised in subsequent ages) were the homicide laws. The standard procedure with invalidated documents in AthensFootnote ⁴ was to discard or recycle the material. It is conceivable that the laws of Drakon which were no longer in use were physically destroyed or (materially) reused. A statement by AnaximenesFootnote ⁵ may imply the continued physical survival of the text of Drakon's laws into the fifth century:

This statement is however entirely intelligible as a comment on the text of the homicide laws alone.Footnote ⁶ But even if the physical text survived, in a society where people (except perhaps logographers) tended to read law mainly if not exclusively for the purposes of specific litigation, there was no incentive to peruse Drakon's defunct laws, even if they existed. It was not until the philosophical and comparative studies of law from Plato and Theophrastos in the fourth century that antiquarian interest in such texts came into being. The key point in all of this is that the Athenians probably relied on oral tradition for all of Drakonian legislation beyond the homicide laws, whether or not the laws were available somewhere in some form. This does not undermine everything we read about Drakon, unless we are to reject oral tradition in its entirety. But the fact that few if any Athenians of the Classical period had direct experience of Drakon's code should make us sceptical of anything we are told about Drakon, unless we can verify or test it, and of any conclusions drawn from it. This applies of course to the present discussion.

I begin with the nature and scope of the legislation as a necessary preliminary to an evaluation of the Athenian narrative on the fate of the laws. The legislation was probably fairly typical of its period in being at once both radical and conservative. It was radical in the very basic sense that the laws have been removed forever from the grasp of a narrow group of officials and located in the central space of the polis; it does not matter that political power still remains concentrated, as it will for another century or more. A vital symbolic statement of collective ownership has been made.Footnote ⁷ But the legislation is probably also conservative in some key aspects of procedure and substance. The narrative in Ath. pol. of Athens as Solon found it indicates that (at least as far as fourth-century writers could reconstruct it) the system after Drakon located judicial authority in the hands of magistrates, as it had been before. This we infer from the fact that it is Solon who institutes the right of appeal to the courts against judicial decisions by officials.Footnote ⁸ These are public officials, not local chieftains such as we find in the Boiotia described by Hesiod.Footnote ⁹ But since we are told that officials at this period were chosen at least in part on grounds of birth,Footnote ¹⁰ evidently no radical change has been made in this respect.

We can also detect a degree of conservatism in the area of substance and procedure. Here we move on to still thinner ice. If we ask how Drakon set about determining what the law should say, we have a suggestive answer if we look at key areas where we can get some sense of before and after. One of these is moicheia. We know from classical sources that the law of Athens in the fifth and fourth centuries allowed a man considerable rights of self-help when he caught another male in a sexually compromising position (ἐπ’ αὐτοφόρωι) with at least certain classes of females under his control. The issue has been discussed repeatedly and at length and needs no further treatment here. Though much has been made of the right to kill, the one I wish to stress here is the right to imprison. We are told by our sources that the aggrieved kyrios could hold the offender in custody pending the payment of a ransom, or release him on the cognisance of a third party who guaranteed the payment of the ransom agreed. All are attested in [Demosthenes] 59.65:

We could construct a good case for making this law originate with Solon or with Drakon. A good reason to ascribe it to neither is that the procedure is identical to the one implied in the narrative of Ares and Aphrodite in Odyssey 8.329–48:

Here Hephaistos catches his wife and her lover in flagrante. He imprisons Ares (together with Aphrodite) with the device of the net. To secure Ares' freedom (λῦσον 347) Poseidon guarantees (ὑπίσχομαι) payment of the moichagria (8.332), which evidently means ‘payment for the catching of a moichos’.Footnote ¹² The impression that we are in a legal context of some sort is increased by the verb ὀφέλλει in 332. The features of the later Athenian system are already in place – imprisonment, the need for a guarantor to secure release, release conditional upon payment of a ransom. It is highly probable (no more can be claimed) that Drakon has simply ratified in epigraphic form a practice which was permitted in the Athenian system prior to the arrival of written law.

At this point we hit a snag. There is a genuine and general methodological problem in the use of the judicial procedures found in the Homeric poems as the basis for the reconstruction of a history of Greek juridical practice and prescription. This is the enduring question of the historicity of Homeric society, a question which interests political historians but which legal historians almost universally sidestep in their understandable desire to extract at least some conclusions for early Greek law from the abysmally limited evidence available.Footnote ¹³ Scholars divide on the question whether the Homeric poems depict a historical society and (for those who are inclined to see it as a broadly factual account of an historical Greek society) on the precise period represented.Footnote ¹⁴ My own view is that the Homeric world is a poetic amalgam drawing together elements of poetic and folk tradition, contemporary and past historical experience and material culture, and imagination. But on any attempt to make sense of the society depicted in the text, we have an element of fictionalisation, which is an obstacle to any attempt to reconstruct a historical reality from socio-political features we meet in the poems. Where we can identify (using comparative evidence) real features of Greek practice, they are in the Homeric text deracinated from any local context and presented as part of a panhellenising socio-political construction. Thus, though Homeric sacrifice contains many of the features we find in (some) later cult activity, the poems contain none of the local variation which we know to have been the case in historical Greece; we have a single homogeneous ritual throughout the poems. And the gods worshipped, even within individual Homeric poleis, come without the cult titles which distinguished local worship. Again, though we know that individual Greek cities differed in the specifics of their political systems throughout Greek history, the poems present us with a homogeneous model.Footnote ¹⁵ This element of imaginative (re)construction is an obstacle to any attempt to use the text as a transparent historical source, if such a thing exists.

However, the nature of this fiction is as much an advantage as a problem. We must simply adjust our notion of historical value. Recent scholars have rightly insistedFootnote ¹⁶ on panhellenic diffusion as part of both of the goal and of the appeal of the Homeric text. The absence of local colouring is a deep feature of the epic text which allows it to speak throughout the Greek world. This aspect of the relationship between text and context gives us an important insight into the process of Homer's fictive law-building. In a text designed to speak to an audience across Greece, it is likely that aspects of legal practice in evidence would be recognisable in outline in at least some, and perhaps many, though certainly not all, Greek states in the early archaic period, even if not in identical form.Footnote ¹⁷

We can in fact test the approach propounded above in this particular area of law on the basis of a combination of epigraphy and anecdote. I begin with epigraphy. The law code of Gortyn speaks matter-of-factly of the capture of an adulterer and also includes the element of ransom found both in Homer and in classical Athens (though here in the form of a tariff):Footnote ¹⁸

αἴ κα τὰν ἐλευθέραν

μοικίν αἰλεθι ἐν πατρὸς ἐν ἀ-

δελπι ἐν τ ἀνδρός, ἐκατὸν

στατρανς καταστασεῖ· αἰ δέ κ' ἐ-

ν ἄλ, πεντκοντα· αἰ δέ κα τὰν

τ ἀπεταίρ, δέκα· αἰ δέ κ' ὀ δλος [τὰ]-

ν ἐλευθέραν, διπλι καταστασε

ῖ· αἰ δέ κα δλος δλ, πέν-

τε. προϝειπάτ δὲ ἀντὶ μαιτ-

ύρν τριν τοῖς καδεσταῖ-

ς τ ἐναιλεθέντος ἀλλύεθ-

θαι ἐν ταῖς πέντ' ἀμέραις·

Now for the anecdote. Aristotle in his Constitution of Tenedos mentioned the violent self-help available for the man who catches a seducer in early Tenedos.Footnote ¹⁹ This forms the basis of a story pattern which recurs in the case of Zaleukos.Footnote ²⁰ Though the recurrence indicates that we are dealing with a floating myth rather than a nugget of historical fact, the important point here is the way in which capture in the act is taken for granted as a defining feature in some cases of moicheia. A fragment of Hipponax (fr. 31)Footnote ²¹ also speaks of the capture of the moichos; the passage as we have it is unspecific about penalties but it is quite clear that we have here an element of self-help in Ephesos or Klazomenai comparable in outline with what we have met in our other sources. Not all of the features are reproduced across our examples (as far as the evidence allows us to judge) but the recurrence of capture in the act and self-help of different sorts suggests that we have in Od. 8 an aspect of procedure on seduction which would be recognisable in many parts of the Greek world, and by extension we can probably see in the similarity between Classical Athenian and Homeric practice in this area a continuity which bridges not only Drakon but also Solon and Classical Athens. I shall return to this last point below but for now we can deduce with some plausibility that what Drakon is doing in this area and probably more generally is giving inscriptional form to existing practice. There is nothing remotely new about this suggestion; but it is useful to be able to give a little substance to the view. On this basis much of Drakon is not legislation in any creative sense but a process of making visible and explicit; in this respect it prefigures the work of the anagrapheis who reinscribed the laws at the end of the fifth century. The same applies in the case of homicide. Some aspects of Athenian law in the Classical period explicitly ascribed to Drakon show a pronounced affinity with homicide procedures as depicted in Homer, specifically the emphasis on the family both to pursue and to pardon. So Ajax says at Iliad 9.629–33:

Though Athens never formalised the receipt of blood money, unlike sharia law,Footnote ²² and in this respect differs from the process of compensation envisaged by Ajax in Iliad 9 Athens like Ajax recognised the right of the family both to pursue and in some circumstances not to pursue (IG 1³ 104. 10–16):

πρῶτος ἄχσον.

καὶ ἐὰμ μὲ 'κ ἐκ [π]ρονοί[α]ς [κ]τ[ένει τίς

τινα, φεύγ]ε[ν· δ]ικάζεν δὲ τὸς βασιλέας αἴτιο[ν] φόν[ο] . . . . [β]ολ-

εύσαντα· τὸς δὲ ἐφέτας διαγν[]ν[α]ι. [αἰδέσασθαι δ' ἐὰμ μὲν πατὲ]ρ -

ι ἀδελφὸ[ς] ἒ hυος, hάπαντ[α]ς, τὸν κο[λύοντα κρατν· ἐὰν δὲ μὲ] hοῦ-

τοι σι, μέχρ' ἀνεφ[σι]ότετος καὶ [ἀνεφσι, ἐὰν hάπαντες αἰδέσ]ασ-

θαι ἐθέλοσι, τὸν κο[λύ]οντα [κ]ρα[τν·

All this suggests that much of Drakon's job was publication. This continuity between Drakon and what went before is an issue to which we shall return below.

This of course risks understating the importance of what is happening. Though I have stressed the continuity in the area of content, the placing of the laws in the public domain is a radical change. What before was known only by tradition or to a few is now fixed in form and openly available to all. And despite the argument for broad conservatism offered above, common sense suggests that the act of writing down will have drawn attention to lacunae and inconsistencies, with the consequent need for amendment or supplementation. My purpose, however, is not the ideology or effects of written laws; I wish simply to look at what Drakon's laws said. Which takes me to the question of the scope of the legislation. It has often been suggested that Drakon's legislation dealt only with homicide.Footnote ²³ There is nothing inherently implausible in the suggestion. The problem is that it requires us to ignore several pieces of evidence in a context where we have very little to go on anyway.

The first of these is the explicit statement of the Ath. pol. that Solon revoked all of Drakon's laws except for those dealing with homicide. The statement makes no sense unless we suppose other, suppressed, laws. We can if we wish rationalise this away by arguing that subsequent ages mistook the existence of Drakonian homicide laws and no other Drakonian legislation as indicating that this was a fragment surviving from a larger code which never in reality existed. This, however, is to ignore the corroborative evidence for non-homicide legislation. For the second piece of evidence is the tradition from the Classical period that there were specific enactments of Drakon on areas beyond homicide. Most important, for all its probable rhetorical exaggeration, it is the reference in a lost speech of Lysias (fr. 40b) to a law of Drakon on idleness:

There is of course some discrepancy in our sources about the origin of the law on idleness;Footnote ²⁴ Herodotos (2.177) has Solon import it to Athens from Egypt and Theophrastos (Plutarch Solon 21) ascribes it to Peisistratos. The testimony of Herodotos is suspect, given the mythologisation of Solon's travels, Herodotos' fondness for imitation as a means of explaining political and cultural similarity and the tendency in the anecdotological tradition to bring famous names together.Footnote ²⁵ Theophrastos is more difficult to dismiss. But the fact that Pollux, who seems to have been well briefed on early Athenian law, favours the attribution to Drakon, while the striking difference in the presentation of the law by Pollux and Lysias seems to rule out dependence of the former on the latter.Footnote ²⁶ It has been suggestedFootnote ²⁷ that this belongs to homicide law. What we might have is a defence allowed under the prescription for legally permitted killing. In a conservative agrarian society a man with no visible means of earning a living can be presumed to live by theft; so the absence of work may be advanced in support of the killing. This is superficially attractive. The fundamental weakness is that this would be not a legal prescription but a hypothetical argument from probability. Nothing in what survives of homicide law in inscriptional or literary sources suggests that it included such additional clauses; lawful killing was addressed solely in terms of immediate attendant circumstances.Footnote ²⁸ So our source is telling us (rightly or wrongly) that Drakon legislated on idleness and imposed a severe penalty.

Also important is the tradition found in Plutarch that the penalty for theft under Drakon was death (Solon 17). Here too it can be suggested that what we have is a reference to homicide law, which allowed a defence of justified killing in the case of some thieves at least.Footnote ²⁹ This is not, however, what Plutarch's wording suggests; it points rather to the existence of specific enactments in relation to theft. It is also difficult to fit a comprehensive right of legitimate killing against thieves into homicide law, which appears never to have given blanket indemnity for the killing of thieves, only in cases where theft was accompanied by aggravating circumstances. Finally, we have seen reason to believe that Drakon's legislation included provision for moicheia. We do know that a man found with certain categories of female relative could be killed with impunity and that this included those who would be classed as moichoi. But the provision discussed above was not for killing but for imprisonment for ransom. So if we are correct to suppose that Drakon's legislation acknowledged the right to take non-lethal action against a moichos, this cannot have been incorporated in homicide law but must have been dealt with separately.

The third factor which supports the existence of a corpus that extended beyond homicide is the evidence that we have (largely from archaic poetic texts) for the existence of legislation (if unwritten) in a wide range of areas which were subsequently covered by legislation in the Greek cities. We have already encountered homicide and moicheia in Homer and we have seen further evidence for procedures against moicheia in a number of Greek cities. But we also find procedures for dealing with inheritance disputes in Hesiod,Footnote ³⁰ and for theft in the Hymn to Hermes, where the god is arrested in possession of the loot by what we would call a procedure of self-help.Footnote ³¹ This falls far short of direct evidence for the reconstruction of the Athenian law code in the late seventh century. But since these are areas of importance,Footnote ³² and areas on which the Athenians continued to legislate, the existence of comparable enactments elsewhere makes it on the whole likely that seventh-century Athens too had a substantial body of unwritten laws in existence prior to the advent of written law late in the century. Drakon had a substantial corpus on which to draw. It is also worth noting here the content of the earliest inscribed law we have, from Dreros in the seventh century,Footnote ³³ which deals with constitutional matters. Dreros is not Athens; but this example confirms that there is nothing inherently implausible in the ancient claims for a body of Drakonian law beyond homicide.

Here we need to bear in mind the evidence of Ath. pol. for the existence of written judgments prior to Drakon.Footnote ³⁴ Though we tend to focus on homicide against the background of continuing unrest and (some) political violence in the seventh century, there must have been areas for instance in the area of private litigation and property matters where judgment had given rise to principles rather like the emergence of the English common law system; our source indicates that these were preserved for the exclusive use of the thesmothetai and so were not widely available. In a context in which the creation of written law probably reflects an attempt to increase control over magistrates, a clarification of their powers may also have figured in the written prescripts. Here the example of Dreros is again relevant. Homicide was not the only area in which clarification would be of value. There is also another dimension to these thesmia. Their existence would add to the material available to Drakon in creating a written text. He was not creating written law in a vacuum; some at least of the work had been done. Again none of this establishes beyond doubt the existence of a body of law which goes beyond homicide; but it does establish the potential value of such a code in its historical context and the feasibility of its existence.

This does not of course indicate that the corpus of inscribed law was at this stage comprehensive. Rosalind Thomas has suggested recently that the early written codes focused on areas deemed to be particularly important rather than attempting to cover all areas of dispute and misconduct.Footnote ³⁵ The suggestion is inherently plausible. It is borne out by the code of Gortyn and the Twelve Tables in Rome, also by the nature of Athenian law in the Classical period, which left some areas of activity either unregulated or with minimal or partial legislative intervention; for instance contract, buying and selling. Only philosophers ever wanted a comprehensive law code. This, however, takes me to the most difficult aspect of legal cover. Ruschenbusch in a magisterial paper suggested that Drakon's laws covered only delictual litigation.Footnote ³⁶ This cannot be refuted absolutely. However, there is one important hint that pre-Solonian law was wider than Ruschenbusch suggests. We have a law text cited which explicitly enacts the right to make wills. The law cited at [Demosthenes] 46.14 says:

Even if the status of this document is questioned, the broad content and some specifics of wording are confirmed both by the summary which follows in the speech and (if we distrust that) the text is independently confirmed by the speaker at [Demosthenes] 44.68:

It gives that right to ‘all who were not adopted when Solon entered his office’. My interest here is in the restrictive clause excluding adopted sons from testamentary freedom, which explicitly takes us to the period before Solon. It appears to indicate that the law before Solon allowed for formal adoption. We can also infer that the law which preceded Solon made no allowance for free disposal of property or at least limited it. All this suggests that Drakon's law also included rules on succession. Given the importance of succession, this does not surprise. How much prescription was included in this area is irrecoverable and for my present purposes irrelevant. The important point is that the text suggests that Drakon's legislation was not simply delictual, as Ruschenbusch supposed.

So much then for scope. I turn now to the spirit of the laws. The best-known feature of Drakon's laws was their severity. Drakon was – well – draconian. This view of Drakon has occasionally been contested in passing. But in general it simply sits unquestioned in the scholarly tradition. There is no suggestion of gratuitous cruelty. Alongside the tradition of severe punishment, there survives a tradition of Drakon as a figure of integrity, as Schlesinger demonstrated long ago. He is the Cato of ancient Athens.Footnote ³⁷ The tradition of severity may have begun quite early. We first encounter it in a pun attributed to Herodikos in the fifth century cited in Aristotle's Rhetoric;Footnote ³⁸ even if we are sceptical of the attribution, we can certainly take the tradition to the beginning of the fourth century. In Lysias fr. 40b (cited above) we are told that Solon changed the penalty in the law on idleness from death under Drakon to a fine of 100 drachmas for the first offence to loss of citizen rights on three convictions. We shall return below to what this means in practice. The key point at this stage of our discussion is that when we first encounter him as a person rather than the name of a code, Drakon is presented as more severe than Solon. Aristotle twice refers to the severity of the laws, on one occasion dismissing them as noteworthy only for their harshness.Footnote ³⁹ Demades famously said of Drakon that his laws were written not in ink but in blood.Footnote ⁴⁰ By the time of Plutarch this tradition has been elaborated with anecdote. Allegedly Drakon was asked why he set the penalty at death for so many offences and his response was that he felt that the smaller offences deserved death and he had no more severe penalty for the larger offences. The anecdote is suspect. But the point here is not the historicity of the anecdote but the continuity of the tradition of Drakon's severity.

In some key points the tradition is likely to be sound. We are informed that he set the penalty for theft at death irrespective of the value of the article stolen. Plutarch's testimony on this point is echoed by Aulus Gellius.Footnote ⁴¹ There is no good reason to doubt this. As far as we know, the Athenian law of theft in the Classical period did not persistently use value as a criterion for determining the penalty in cases of theft. Cohen has argued persuasively that the key differentiator is the circumstance of commission or detection.Footnote ⁴² Value of the stolen object is used intermittently in legislation in use in the Classical period but there is no coherent scale of values and in some cases no reference at all in the law to value. So it is plausible that value played little or even no role in Drakon's treatment of theft.

Severity is also underlined by the statement of Pollux that the law of idleness under Drakon imposed atimia, while Solon brought in a ‘three strikes’ rule, that atimia resulted from three convictions. Given the state of our evidence it is impossible to determine with confidence which is the more reliable source. Though superficial considerations of chronology seem to demand that we accept the statement of Lysias that Drakon set death as the penalty for idleness at face value, the issue is not so simple. Firstly, Pollux is generally a good source for Drakon. Much of what we know about Drakon's homicide procedure comes from Pollux. He has a source which knows something about Drakon. Secondly, where Pollux is simply relaying useful information, Lysias is arguing a case. And it is striking that the case in question is a prosecution for idleness. With an ulterior motive (jurisprudence in the orators is rarely objective), the orator may be less reliable here than the grammarian.

But it is possible that both are telling us the same story in different terminology. The current consensus is that atimia in the archaic period meant outlawry. If this is correct (and I confess I am not entirely sure), the atimos was outside the protection of the law, with death as a real prospect for anyone who did not flee into exile.Footnote ⁴³ So the two sources are not widely separated. There is still a complication to note. It has been arguedFootnote ⁴⁴ that the terms atimos and atimia appear to mean the same thing in Solon's laws as in Drakon's. If so, though the gap between the two legislators is narrowed, Solon's law certainly emerges as more lenient than Drakon's. Solon has also significantly increased the flexibility available.

But there is reason to hesitate before acquiescing too readily in the undifferentiated picture of Drakon as draconian. The antithesis between Drakon and Solonian legislation is created by ignoring a key feature of Athenian legislation of the Classical period, its procedural flexibility.Footnote ⁴⁵ Though attempts have been made recently to adjust the picture of comprehensive flexibility which has enjoyed widespread popularity recently,Footnote ⁴⁶ it remains the case that Athens often had more than one procedure operational in a given area and that in some circumstances at least the prosecutor had a choice between different procedures, with different consequences for himself in terms of kind and scale of satisfaction or compensation and for the accused in terms of scale and nature of punishment. In Classical Athens, a thief who could not be apprehended on the spot could only be tried through a private suit, with compensation going to the victim. But a thief at night could be killed with impunity and other kinds of property theft exposed the thief to summary arrest with the prospect of execution on confession or conviction. The neat, implied contrast between Drakon and Athenian law of the Classical period is created by selective treatment of the evidence. Fifth- and fourth-century Athenians were happy to execute for theft, even of small sums. Plutarch may also be influenced by Roman law on theft, which was more lenient than Athenian law even at the date of the Twelve Tables and by the time of the Principate prescribed pecuniary compensation for all categories of theft.Footnote ⁴⁷

This is symptomatic of a larger process of exaggeration of the severity of Drakon's laws. It is illuminating here to look at the way in which Plutarch represents the relationship between Solon and Drakon. We are told there (Solon 17) that Solon abandoned Drakon's laws because of their severity:Footnote ⁴⁸

The phrase ὀλίγου δεῖν here (‘almost’) may be revealing; unless it is merely a rhetorical flourish to suggest a large hinterland of knowledge behind the specific statement, it may reflect an awareness that the reality was a little more complicated than the myth. Be that as it may, we can be sure that though the first statement came from the Ath. pol., what follows did not, since Ath. pol. notes only the fact of the annulment of Drakon's laws. Like many traditions, this one gathered momentum with time. But since the severity of Drakon is attested by the late fifth century, Plutarch's explanation for Solon's intervention probably reflects an old tradition. The reputation of Solon as a moderate and a man who protects the weak, together with his status as sage, would tend to generate by contrast a Drakon who lacked this moderation. Solon and Drakon become antithetical elements in a binary structure. It is probable (as was suggested to me several years ago by a student questioner in Corfu) that the process started with Solon himself, whose propaganda for his reforms tells a before and after story which was for Greeks of the Classical period the only contemporary fixed account of Athens at the end of the seventh century. The binary opposition was helped by Drakon's name, which is already the source of a pun in Aristotle; ‘Snake’ is not a good name for a legislator. It also fits into a larger tendency to stress the severity of early law codes. We have already seen the story of the anonymous king of Tenedos. The story that Zaleukos allowed the blinding of adulterers caught in the act falls into the same pattern, which is based ultimately on the past/present antithesis (as well as the prevalence of the story pattern of the lawgiver caught by his own law).

The structural antithesis I offer here is in part hypothetical. But it is not just hypothesis. For there is some evidence that Drakon's severity has been exaggerated. The first piece of evidence is the surviving homicide law, which allows for pardon by relatives in restricted cases in the case of unintentional killing,Footnote ⁴⁹ as well as pardon by the victim before dying.Footnote ⁵⁰ It also allows for a person accused of intentional homicide to withdraw unhindered into exile after his first speech instead of waiting for the outcome of the trial. The reasons for these provisions are unlikely to be humanitarian. They almost certainly embody aspects of pre-existing law, inscribing established family rights. If one accepts (as I accept) that homicide law took the issue of pollution seriously, they also note the collective interest in removing a source of pollution and allow this to override the individual and family. By allowing the accused to escape unhindered they impose the severe penalty of exile and prevented feuding from destabilising Athenian society. But my point is not that the laws were humanitarian, simply that death was not inevitable. The Athenians had evidence that Drakon's laws did not unfailingly impose death but they chose to ignore it.

A further (though rather more ambiguous) piece of evidence is the argument in Plutarch for the existence of the Areopagos before Solon, which seems to envisage exile in the pre-Solonian system for offences other than homicide:

The precise interpretation depends on our view of atimia; but what is clear is that the system before Solon allowed for penalties other than death.

There is corroborative evidence in another passage in Pollux (9.61), which speaks of a provision in the law of Drakon for someone to pay a fine or penalty of twenty oxen:

The passage in question is likely to be reliable, because it is not trying to make a point about substantive law; it is commenting only on language, and the word ‘pay’ is not necessary to the argument, only the syntax of the citation. Now twenty oxen is a very high price in a peasant economy. This is a heavy fine or compensation. But fines were regularly heavy (at least in certain contexts) in Classical Athens. So without the context we should refrain from judgement for or against a more severe system in the seventh century. The point that matters however is simply that death is not an option (or at the very least not the only option) here. Drakon is less draconian than his reputation and his legislation is probably more diverse than the later tradition suggests.

Finally, we are told that Solon invented third-party intervention:

It is important to note what this text does not say; Solon significantly adjusted Athenian legal procedures but he did not invent the private suit. If we are right for instance to suppose that there were laws in existence to deal with inheritance before Solon, then unless we suppose that the penalty for failure in an inheritance case was death, we have to suppose that swathes of Drakon's legislation allowed for simple redress on an individual basis.

So what do we have so far? A body of law which in many respects (we cannot say all) reflects pre-existing practices; which probably focused on key areas of dispute rather than aiming for comprehensive cover but which went beyond homicide. A corpus which was probably severe and relatively inflexible but less severe than it was later taken to be.

It is now time to press the evidence a little harder. We are told by the Ath. pol. (7.1) that after Solon the Athenians ‘no longer used Drakon's laws apart from those on homicide’ (τοῖς δὲ Δράκοντος θεσμοῖς ἐπαύσαντο χρώμενοι πλὴν τῶν φονικῶν). We should perhaps linger a little over this. Certainly Solon's intervention in the Athenian legal system was radical. Structurally he revolutionised it. The introduction of the third-party graphe added a completely new dimension to Athenian law. There must have been public actions of some sort before Solon, though it is unclear how they worked, and the author of Ath. pol. is careful not to say that Solon invented the public action; he invented the graphe in its classical form as a means of third-party intervention to deal with offences against the individual. We are told by a source, which seems well informed, that the Kylonians were due to be tried by the Areopagos when they were massacred.Footnote ⁵¹ Solon did not invent the idea of the public action. He extended the scope of the public action dramatically, but there was legislation already in existence to deal with political offences. The (unrealised) trial of the Kylonians is an example of an action which is politikos in the narrow sense of ‘political’ as we understand it. But there is good evidence that some actions which were classified as public in the Classical period (but not necessarily political in the narrow sense) were already in place in Drakon's day. This applies specifically to some instances of what are often called self-help procedures.Footnote ⁵² Confinement of seducers is one, as we saw above. Summary arrest was another. The homicide law used the verb ἀπάγειν of the right to arrest a returning homicide.Footnote ⁵³ So we can add this to our procedures which predate Solon.Footnote ⁵⁴Endeixis, a procedure which seems to involve the laying of information about an offence with a magistrate and the related procedure of summary arrest, again is attested for Drakon's day, as we know from Demosthenes 23.51.Footnote ⁵⁵ It is more difficult to say anything about the other procedure which seems to belong with these, ephegesis, in which an official is led to the scene of a delict by someone witnessing it.

What is not clear in all of this is whether the type of graphe directed against a delict without an individual victim which we find in the Classical period was available under Drakon, that is, whether the system allowed for an individual to bring a formal action (without direct intervention of the sort envisaged in procedures such as apagoge) for offences against the polis.Footnote ⁵⁶ The summary procedures listed above (apagoge, endeixis and ephegesis) all seem to presuppose intervention during an offence, at least in their classical form; they leave a substantial lacuna in apparently not allowing for intervention after the fact. Even archaic Athens, a fraction of the size of its fifth-century dimensions both in population and in extent, would have found it difficult to rely solely on magistrates with limited resources to deal with all issues. The existence of something resembling what was later called graphe would assist magistrates by incorporating an element of civic support based on citizen initiative. This also makes better sense of the success of Solon's introduction of the third-person graphe. The new procedure is no longer a blue-skies invention but a recognition and expansion of the potential inherent in existing legal processes. We may have a pointer toward both the concept and the punishment of such offences under Drakon in the action against idleness, if this does go back beyond Solon. But unfortunately, even if we accept the existence of this offence under Drakon, we know nothing about procedure and any of the summary procedures would in theory be possible.

We do, however, have good reason to believe that the graphe in its full Solonian range was a new phenomenon, since it allowed initiative not just as victim to secure redress nor on behalf of the city to deal with offences against the state but on behalf of a third party. If we focus on the practical results of this for the legislator and the legislation, we can immediately see the need for an unspecified but substantial number of new laws putting in the place the possibility of graphe in a range of circumstances. As well as this wholesale creation of new laws, there was a need for procedural change to old laws. Ath. pol. identifies ephesis to a law court as one of the most democratic of Solon's reforms. The laws which he found in place must have specified the penalties available to a magistrate in a range of cases. Though we cannot cite specific evidence, what we know of classical Athens suggests that the penalties available will have varied from some form of assessment of compensation to fixed punishments. The introduction of appeal to the courts meant that in all cases there must have been at least an additional section to add, which allowed the possibility of appeal against the magistrate's decision and/or set an upper limit on his capacity to punish on his own initiative. The continuation of magisterial discretion within fixed limits is indicated by the survival into the Classical period of epibole, cash-limited penalties imposed by individuals or bodies other than the dikasteria. Finally, there must have been laws needed for some of the other aspects of Solon's reforms. For instance, if there is any truth in the statement that Solon forbade loans made on the security of the person, presumably a law was needed for this.Footnote ⁵⁷

In introducing graphe to protect the individual victim Solon significantly expanded the flexibility of procedure in Athenian law. But the Ath. pol. at no point states or implies that Solon invented or meddled with the basic notion or nature of the private action. This supports the view taken above that there was a range of laws already in existence allowing for private actions in many of the areas covered by the new public actions. It is also likely that in some areas, such as theft, there was already a degree of flexibility in the system. The unifying concept in cases of self-help is flagrance, as Cohen and Hansen have stressed.Footnote ⁵⁸ If this was also a feature of self-help in the seventh century (and this is suggested by what we actually find in citations of Drakon's laws, in what we see in the pre-Drakonian verse texts, and the hints of laws dealing with self-help from other Greek states), then it is likely that archaic Athens before Solon had procedures to deal with non-flagrant breaches of the law. In which case an action such as the dike klopes is likely to have existed before Solon (together with the right to search which survived into the Classical period). Certainly the right of search, which was embedded in the legislation, has all the hallmarks of self-help which we find in other laws we have ascribed to Drakon.

This is of course conjectural. But it raises the possibility that the continuity from Drakon to Solon was still greater than I have suggested and adds to one's reservations about the statement that Solon abandoned all of Drakon's laws. It is probable that some of Solon's intervention was amendment, not annulment. Over and above the survival of old clauses in lightly redrafted laws, Drakon appears to have influenced the range of Solonian legislation.

In one sense the Ath. pol. is right. In the Classical period the only functioning laws whose ipsissima verba could be traced back to Drakon were those on homicide. But the blanket statement of annulment obscures the probability that some of Solon's task was editing. This in turn reflects the nature of law as text throughout Athenian history. In a world without lawbooks editing is inevitably a radical process. In a world in which statutes were by definition material monuments, Solon had to replace not just specific words but also the physical text. But if we look at the hints both of substantive overlap and of procedural survival, it is difficult to resist the conclusion that the statement that the Athenians stopped using Drakon's laws considerably oversimplifies the situation. Though one could not reasonably argue (even in a revisionist reading like this one) that Drakon as lawgiver was as influential in Classical Athens as Solon, there was a lot more of Drakon in fifth and fourth century Athens than the Athenians either realised or, had they realised, would have cared to admit.