How Draconian was Draco?

Most of us have called something draconian at least once, but how many of us know where the word comes from? The answer to that question is that the word draconian is a reference to the constitution/legal code that was established by Draco in the late-7th century BC in Athens. Very little is actually known about Draco, sometimes referred to as Drako or Drakon. Indeed, some scholars even think he may have been a fictional person, at least in part. Really the only thing that is known about Draco, assuming he even was one single person, is that he was commissioned to create a written set of laws to replace the largely oral legal code that existed prior to this.

The prior code being oral caused a litany of issues that the Athenians wanted to rectify by having a written code. To fix this, Draco's code was inscribed onto stone and placed in a public place so that all the residents of Athens, or at least the literate ones, could see them and know exactly what the laws they were expected to follow were.

Draco's code succeeded in clarifying the laws and rectifying issues inherent in using an oral set of laws to govern a nation. However, it was eventually itself replaced by the Solonian Constitution (drafted by Solon) due in large part to its harshness and dislike among the people of Athens.

Because of the harshness of Draco's laws, the term "draconian" eventually began to be used to describe things that were harsh or severe. So, we know how the phrase draconian came about, but what does it truly mean when we compare something to Draco and his legal code? Put differently, how draconian were Draco’s laws?

Well, reportedly the laws were extremely harsh, with the penalty for most crimes, even minor ones, being death. However, one interesting and somewhat progressive feature of the code is that it reportedly drew a distinction between murder and involuntary homicide, which may not seem that impressive today, but was a novel concept at the time. Under Draco's law, involuntary homicide was punished by exile, which seems harsh, but is less harsh than death. We don't know for sure what the punishment for voluntary homicide was, but given what we know about Draco's code, it is safe to assume it was death.

Now, the reason I say reportedly when discussing the contents of the code is because a complete copy of the laws no longer exists, so we have no way of knowing what the code said, at least not in its entirety. (This means we technically don't know how draconian Draco was!) Because the code itself is lost to history, our understanding of what it was like comes from secondary sources, such as Aristotle or Plutarch.

According to Plutarch, “death was the punishment for almost every offence, so that even men convicted of idleness were executed, and those who stole pot-herbs or fruits suffered just like sacrilegious robbers and murderers. So that Demades afterwards made the joke that Drakon's laws were not written with ink, but with blood. It is said that Drakon himself, when asked why he had fixed the punishment of death for most offences, answered that he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones.”

As I said earlier, the harshness of the laws were unpopular, and eventually Solon was commissioned to draft a new, and less harsh, set of laws. As Jan L. Jacobowitz put it in her 2021 article published in the Vanderbilt Journal of Entertainment and Technology Law titled Chaos or Continuity? The Legal Profession: From Antiquity to the Digital Age, the Pandemic, and Beyond, "Draco’s laws proved to be both harsh and ineffective, so twenty-five years later the Athenians elected the merchant and philosopher Solon as chief magistrate and authorized him to reform the political institutions of the state."

Although interestingly enough, even though Solon largely repealed and replaced Draco's laws, the homicide laws were left in place. Indeed, unlike the rest of his constitution, Draco's homicide laws survived and help influence subsequent law codes, albeit with some changes and evolution over time.

So, there you have it. That is what it truly means to call something draconian!