Criminal Law in Ancient Greece: Draconian to Solonian

IRA COHEN, B.A., J.D., LL.M.

We may fairly, and reverently, gaze backward in time to ancient Greece as both the nursery and experimental laboratory for a number of the most enduringly important legal teachings regarding our corpus of criminal jurisprudence. We do not, however, need to look very far away for proof positive that the spirit of Draco, the feared and reviled Athenian Lawgiver, still is well and alive today.

In the hermit kingdom that is North Korea, the tyrant2, Kim Jong Un, rules with an iron fist over an impoverished land and a beleaguered populace. Indeed, the pusillanimous pipsqueak of a despot is the poster boy for ruling over a Draconian legal system. How many poor souls are on his blood-stained hands is hard to say, but the head of the snake’s great affinity for the death penalty for all manner of crimes surely contributes mightily to the victims’ body count. Recently, it was reported that two minors (ages 16 and 17) allegedly were the victims of the repressive regime’s brand of quick and cruel justice. The unfortunate juveniles apparently were summarily sentenced and shot to death in front of the town’s residents in Hyesan. What were the teenagers’ awful transgressions one might reasonably inquire? As it turns out, their heinous crimes: watching or distributing South Korean movies and dramas.3

Equal treatment under the law and prohibitions against cruel and unusual punishments are two time-tested legal principles that retain their importance down to modern times. Nowhere are those precepts more important than in the enactment, the promulgation, and the administration of criminal law. Moreover, the presumption of innocence and the right to a fair trial also have been, and remain, of paramount importance.

Crime and punishment doubtless have been of great concern to many societies and governmental authorities from time immemorial. So, too, the issues of the use, application, and methods of execution for the death penalty in capital offenses have been ever-present topics of consideration and, more recently, studied debate and legislative reform.

It has, needless to say, been an evolutionary process and, in some respects, progress admittedly has been glacial in its discernible motion. Indeed, as discussed, supra, there still are quite a few countries today where criminal laws are repressive and unforgiving in nature and where the death penalty is meted out with seemingly mindless depravity, reckless indifference to justice, and gross insensitivity to humaneness.4

Before the giants of Greek legal lore, there were other juridical visionaries. Hammurabi’s Code, in ancient Babylon, a collection of 282 rules (which, among other things, set fines and punishments), was a legal text composed between 1755-1750 B.C. That work of codification stands out as perhaps the best—and most well-known— example of the ancient law of “lex talionis” (the law of retribution), as exemplified by:

Rule 196. If a man destroys the eye of another man, they shall destroy his eye.

Rule 197. If he breaks another man’s bone, they shall break his bone.

In the days of yore, the convicted perpetrators of capital crimes typically met with gruesome deaths (e.g., burning, impaling, hanging, or beheading). Crimes that did not admit of standard proofs or evidence, such as sorcery, found the accused sentenced to trial by ordeal (e.g., being thrown in the river).

However, in what seems to be a repeat performance throughout history, which law, and what penalty, is applied could vary widely depending upon the accused’s class and status. Not surprisingly, then, the rich and powerful typically would be fined rather than subjected to physical punishment, dismemberment, or enslavement. It also depended upon one’s gender; for example, although philandering men could freely consort with their slave girls and handmaids, unfaithful women (along with their lovers) would end up bound and tossed into the Euphrates River to drown.

On the plus side of the ledger for Hammurabi’s Code, it is one of the earliest documents to lay down the landmark legal doctrine of the “presumption of innocence” (that is to say, a man is innocent until proven guilty). In addition, there was a procedure furnished in order to allow parties to bring their case before a judge and provide evidence and witnesses in order to prove their claims. There was one more, very interesting—and quite deadly—safeguard, which was designed and imposed mainly to deter false accusations: If someone accused another person of a capital crime, the onus probandi (burden of proof) was placed squarely on the shoulders of the accuser; then, if the case was not proven, the accuser was put to death.5

The Old Testament’s most vintage sections are believed to date back to the sixth and seventh centuries B.C., just prior in the timeline to Draco and Solon, both Athenian lawgivers, as we shall discuss, infra. Quite apart from the Old Testament’s aggregate total of 613 commandments (including the Judeo-Christian’s understanding of “The Ten Commandments”), the Biblical text also was quite generous in its doling out the death penalty for multiple offenses, ranging from heinous crimes such as murder, rape of a betrothed virgin, and kidnapping, to purely sex-related offenses such as adultery, bestiality, and the bride not being a virgin on her wedding night. The list of capital crimes droned on encompassing witchcraft and worship of other gods, all the way down to picking up sticks on the Sabbath, cursing one’s parents, or taking the Lord’s name in vain.

Approximately 3,000 kilometers away from the Holy Land of Israel, on the far side of the Mediterranean Sea, in ancient Greece, Draco was the given name of several physicians in the family of the great Hippocrates, renowned in Western civilizations as the Father of Medicine. Our focus here, however, falls on Draco the Lawgiver, the seventh century B.C.E. legislator in Athens, a larger-than-life authoritarian from whose name the term (and adjective) “draconian” is derived. Draco’s name—and legacy—are inextricably intertwined with his creation and institution of a cruel and, literally, quite deadly penal code, the rules of which were both ruthless and uncompromising for even trivial contraventions. As any devoted fan of the Harry

Potter® franchise can tell you, Draco is the Latin word for dragon or serpent.6

In the mythology of the Greeks, around the 10th century B.C.E., Cecrops (a creature who was, fittingly enough, half man and half serpent) founded Athens and was its first king. In the history books, Theseus is credited with Athens’ founding (c. 1,300 B.C.E.). For some measure of chronological and historical context, Homer’s epic Greek poems, The Odyssey and The Iliad, were written in the eighth or seventh century B.C.E. The first Olympic Games were held in Greece in 776 B.C.E. It was then that Draco lived, and legislated, during the seventh century B.C.E.

There always have been—and always will be—lawbreakers. As Aristotle observed, “[a] virtuous human being is the best of all animals, but one who has distanced himself from law and justice is the worst of all.”7 For Euripides, “the duty of the virtuous men is to serve justice and to always, in every occasion, punish the evil ones.”8

Prior to Draco’s ascendance to political power, the “law” in ancient Greece was comprised of oral traditions and blood feuds. Depending upon one’s class, power, amount of property, and/or wealth, the laws were arbitrarily and capriciously interpreted and applied. Injustices, thus, were commonplace. The oral laws were, for all intents and purposes, the prerogative of the aristocrats of ancient Athens. The temperature of the Athenian populace turned feverishly rebellious.

In a great development that, for better or worse, was a turning point in Athenian democracy, Draco was a legislator turned “lawgiver” at the request of his fellow citizens of that Greek city-state. It is important to note that he was no tyrant; he did not foist himself on the people, but little did they know that Draco’s “medicine” would soon, in many instances, be “worse than the disease.”9

Draco would go on to impose upon all Athenians a bundle of laws, sometimes referred to as the “Draconian Constitution,” the most memorable and mournful element of which was its severity and indiscriminate application of the ultimate sanction for virtually all levels and types of offenses. As Sophocles mused, “[t]his just penalty ought to come straightaway upon all who would break the laws: the penalty of death. Then wrongdoing would not abound.”10 However, even Sophocles conceded, “[t]here is a point which even justice becomes unjust.”11

It is said that the Code of Draco was established during the 39th Olympiad (622 or 621 B.C.E.). His code, however, was anything but good sport and games. In barest summary, under Draco, most crimes—grand and petty alike—were treated similarly and most wrongdoers—from common thieves to murderers—were punished the same way: with the death penalty. Thus, from stealing an apple or a cabbage to killing a man, one’s conviction meant certain death.12

Under this one-dimensional rubric, there were, for Athenians, three prescribed methods of execution: In one form, the convicted prisoner was thrown into a deep chasm or pit; the second alternative was to tie the prisoner to a wooden board and let him die of hunger and thirst; finally, the third method was to force the condemned to die by drinking a deadly cup of a liquid poison concocted from the hemlock plant.13 The great Greek philosopher, Socrates, was dispatched in 399 B.C.E. (long after Draco and Solon perished) by this third method.14

Parenthetically, it should be noted that civil laws were similarly strict. For example, a debtor, so long as he was of a lower class than the creditor, would be forced into slavery.

To his credit, Draco believed in the concept of “notice” to the end that, in order to properly enforce the laws, they should first be made known to the people. Accordingly, Draco’s laws were posted on wooden tablets and also were preserved for about 200 years by being chiseled onto stone steles, which were four-sided pyramids. The tablets, thus, could be pivoted and read from any side. As for the method of inscription, legend holds that the laws of Draco were written not in ink, but rather in human blood.

Draco also introduced a lot-chosen Council of Four Hundred, which later played a major role in Athenian democracy. Also, on the plus side of the ledger, it was said that Draco was the first to make laws giving the franchise (i.e., the right to vote) to the “hoplites” (lower-class soldiers).

Despite his death-adder reputation, Draco’s laws also paved the way to equal treatment before the law; his Code granted equality of the law to all citizens of Athens. That is to say, everyone had an equal path to a date with eternity. Wealth, class, and heritage were not supposed to affect verdicts, and the brutal penalties applied to all condemned men—rich and poor alike. Criminals of all sorts and all stripes, then, were targeted for death.

There is a dearth of information regarding the personal life and background of Draco, also known as Drakon. Most of what we know about Draco is based on accounts from the great philosopher, Aristotle, who credits Draco with being the author of early written Athenian laws. He may or may not have been the first, since Aristotle also reported that, after 683 B.C.E., the six junior archons (magistrates) of Athens were tasked with recording laws. Inasmuch as neither the wooden tablets nor the stone steles have survived the ravages of time, we must satisfy ourselves with Aristotle’s later post-mortem account of Draco.

It appears that some distinction may have been made for the difference between an intentional and involuntary homicide. It may be that the perpetrators of negligent homicides, for example, were spared death and, in lieu thereof, punished by exile (banishment from the community for a period of time) for a period of 10 years, or life. Nevertheless, Draco almost invariably is best remembered for his cavalier and wide-ranging imposition of the death penalty. Plutarch, the later Greek philosopher, historian, biographer, and priest at the Temple of Apollo in Delphi (c. 46 B.C.E. to c. 121 B.C.E.), has written:

“It is said that Drakon himself, when asked why he had fixed the punishment for death for most offences, answered that he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones.”15

It is believed that Draco was born to the noble class in Attica, another city-state of Greece. He died on the nearby island of Aegina, where he spent the last part of his life, having been ultimately chased out of Athens and exiled to that island by the disgruntled Athenian citizenry. It seems that his fellow citizens eventually grew weary of all the ”lawful” executions and ran Draco out of town on a rail.

In Greek folklore, there is a fascinating story about Draco’s ironically karma-filled demise. It is said that in the theatre on that island of Aegina, Draco—the Lawgiver, the death adder—was the unlucky recipient of a traditional, but over-zealous, show of support by his adoring followers; “they threw so many hats and shirts and cloaks on his head that he suffocated and was buried in that same theatre.” Draco, smothered to death by his sycophants, had reaped what he had sown. Death by gifts of cloaks.16

Jumping across the centuries, in today’s Library of Congress, Thomas Jefferson Building, in Washington, D.C., along the stately balustrade, one may marvel at the magnificent marble portrait statue of Solon the Lawgiver. Another son of Athens, Solon’s political career started out in a similar vein to that of Draco, in that it was the people who called upon him to serve, prevailing upon Solon to become a public servant. His later life also was marked the same way as Draco’s, namely, in exile, although Solon’s departure and exodus ostensibly were voluntary, and he lived later to tell the tale. The moral of Solon’s life story can best, perhaps, be summed up by the time-worn, cynical proverb, “no good deed goes unpunished.”

Solon (630 B.C.E.- 560 B.C.E.) lived and made his mark on Athenian history long before Alexander III (the “Great”) made the known world his empire, and before Socrates (469-399 B.C.E.), Plato (427 B.C.E.), or Aristotle (c. fifth century B.C.E.) walked this earth. During the fifth century B.C.E., time would witness the Battle of Marathon (490 B.C.E.), the Persian invasion of Greece (480 B.C.E.), and the Peloponnesian War (431-404 B.C.E.). It was not until much later, in 197 B.C.E., that Rome conquered Corinth, and by 146 B.C.E., Rome had wholly conquered Greece and made it into Roman territory.

Solon must have been just a child when Draco was enacting his extensive laundry list of crimes punishable by death, and he became a celebrated Athenian statesman, regarded highly and most reverently by history as one of the Seven Wise Men of Greece.17 Perhaps he is even more fondly remembered as the archon (or magistrate) of Athens who later repealed most of Draco’s punitive legal code and promulgated, in its place and stead new, eminently more humane laws.

While Draco’s laws were designed, in theory, to grant equality before the law to all citizens of Athens, regardless of class, social status, rank, or wealth, or the lack thereof, it is beyond debate that the penalties ascribed to the various laws were rather excessive as even petty crimes were deemed to be proper subjects of the death penalty. In less than 50 years’ time, however, Solon came along and made certain that most of Draco’s laws (except for the homicide laws) were repealed and replaced with new laws that Solon devised deeming them more suitable and just.

Solon, who often is referred to as the “Father of Modern Western Law,” is believed to have been of noble birth, like Draco, yet a man—a merchant—of modest means. Initially, he became famous for a poem he recited that served as a rallying cry exhorting his people to fight (over the island of Salamis), a war that the Athenians later won.

At the time, Athens had its share of political and internal domestic troubles. The aristocracy ruled virtually unchallenged; many farmers were driven to poverty, many peasants lost their land, others were enslaved for civil debt, and virtually all but the elite, had little or no role to play in their own governance or positions in civil government. It was, then, a time and place ripe for rebels, as it was in other Greek city-states of the era.

As Solon previously had called upon his people, now his fellow Athenians turned to him, desperate to resolve their domestic dilemmas. Fortunately, Solon was a firm believer in the Greek ideal of “moderation”18 and envisioned a global resolution for them that was couched not in the chaos and crisis of revolution, but rather in the modes of quiet logic and restraint of both reflection and careful reform.

By 594 B.C.E., Solon had become the archon (the annual chief ruler). Within a period of 20 years or so, he was afforded plenary au-

Winter 2023 • THE FEDERAL LAWYER • 33 thority as a reformer and legislator. In a series of very popular moves, Solon freed all the enslaved citizens and redeemed all previously forfeited land in a legal maneuver he called, in one of his poems, “shaking off the burdens.” Additionally, there would also no longer be any loans secured by a borrower’s person (i.e., freedom vs. slavery).

Albeit the poor were desirous of the redistribution of land on a massive scale, Solon would not entertain going that far afield. Instead, he undertook measures to improve the economy, preserve products from export (other than olive oil), minted coins, and instituted a new system of weights and measures and, generally, to improve the overall poverty situation, which, it is said, he did.

In the political arena, all citizens were allowed to attend the General Assembly (the Ecclesia) which would pass laws, make decrees, elect officials, and hear appeals from the courts. Also, all but the poorest could serve, for one-year periods, on the new Council of the Four Hundred.

Solon’s greatest contributions, however, were to the Athenian legal system in the embodiment of his new Code of Laws. The Code of Draco (c. 621 B.C.E.) was still in force. Solon took it upon himself to revise every law (save for homicide) and, in so doing, rendered Athenian law much more civilized in most respects. These remained the basis of Athenian statutory law until the end of the fifth century B.C.E. and parts of it continued long thereafter.

One would have hoped and expected the people of Athens to have shown their great admiration and respect for Solon as a token of their appreciation for his legal efforts. Far from it. Once his legal drafting tasks were behind him, Solon quickly became the target of imagined grievances and acrimonious complaints ringing out from all quarters. Why all the enemies? Apparently, in his determination to attempt to please everyone, Solon had succeeded in satisfying none.

To illustrate, the nobles had thought Solon’s changes would be only minimal, at least as to them and their virtual monopoly on power. The poor, as mentioned above, wished that he would simply dole out the land anew so that they could more fully share a piece of the Grecian geo-political pie.

For his part, Solon’s focal points seem to have been freedom, justice, and humanity. He was not strictly egalitarian. At the same time, he was not one with an ambition for his own autocratic power. He could have been an Athenian tyrant; much to his credit, he was not.

And so, it passed that the Athenians were less than impressed by or enamored with the Herculean efforts undertaken on their behalf by the sagacious Solon. Yet, moderation once again prevailed. The populace had promised to accept Solon’s resolution and they were, fortunately for Solon and Athens, good to their word. The laws of Solon would be in force for 100 years. They were posted on revolving wooden tablets for all to see and take heed of. In other words, there was public notice of the laws, including the crimes and the respective punishments therefor.

As for Solon, the problem-solver, the Lawgiver, he must surely have been the very wise fellow who the historical record portrays. Evidently, he detected good cause, and employed good timing, setting out from Athens on a series of journeys and promising not to return for 10 years. During that decade of voluntary peregrinations, Solon visited, among other locales, ancient Egypt and Cyprus. He wrote poems about his travels, just as he had previously created poems to serve as the instruments of his politics and statecraft.

Many years later, upon his eventual return to his homeland, the citizens were factionalized into groups headed up by different nobles.

An old friend of his, one Peisistratus (who previously had served as a general in the Athenian war for Salamis) was planning to take over Athens as a “tyrant.” Solon urged his old friend and ally against adopting such a drastic course of action, but he was dismissed as a raving old man. In the end, Solon, true to his poetry on the subject, was once again proven right. The old general did, indeed, become a tyrant (in 560 B.C.E.), but he was a short-lived one and was soon thereafter exiled.

Solon’s respect for and adherence to the Greek cardinal virtue of moderation served him well. He had provided his fellow citizens with a balanced and humane legal code. And though he was exiled, in his case, it was self-imposed. Solon exited stage left at a time, and for places, of his own choosing. Thanks to his pilgrimages, though he became older, he also became wiser. And, in the end, at least he did not die crushed to death under an avalanche of Athenian apparel.

Ira Cohen, Esq., B.A., J.D., LL.M., is an Intellectual Property Attorney and is the founder and principal of Ira Cohen, P.A. of Weston, FL. He is a member of the Florida and New York Bars, has been practicing law for 42 years, and is rated AV Pre-Eminent® by Martindale Hubbell.® Attorney Cohen served as Judicial Law Clerk to the Honorable Harold J. Raby, United States Magistrate Judge for the Southern District of New York (1982-85). Ira also is the Immediate Past Chair of the FBA’s Intellectual Property Law Section, a proud Sustaining Member of the Federal Bar Association, a Lifetime Fellow of the Foundation of FBA, the Columns Editor for The Federal Lawyer, an FBA Moot Court Judge, a Member of FBA National Council, and an FBA Mentor. Ira can be reached at icohen@ictrademarksandcopyrights.com

Endnotes

1Brainy Quote, Montesquieu Quotes, https://www.brainyquote. com/quotes/montesquieu_355540, (last visited December 15, 2022).

2From the ancient Greek, turannos, meaning absolute ruler. In our modern usage, it refers to an absolute ruler unrestrained by law who rules without constitutional or legitimate right, usually portrayed as cruel, and often resorting to repressive tactics. See The Free Dictionary, https://www.thefreedictionary.com/Tyrannos , (last visited December 14, 2022).

3Bradford Betz, North Korea Executes Teenagers for Distributing South Korean TV, Movies: Report, Fox News (Dec. 5, 2022), https://www. foxnews.com/world/north-korea-executes-teenagers-distributingsouth-korean-tv-movies-report

4See, e.g., the Democratic People’s Republic of Korea [North Korea], the Islamic Republic of Iran [Iran], Russia, and the People’s Republic of China [Communist China].

5In ancient Rome, in cases wherein the prosecutor failed to prove his case, he was branded on his forehead with a large letter “C” (shorthand for “Calumnia,” the willful bringing of a false accusation). The English word “calumny” is derived from this. Some scholars have written that during the Republic, the prosecutor could be sued under the Lex Remmia de calumnia if the accused was acquitted; it also has been written that the slandering prosecutor could be subjected to the same penalty that the accused person would have faced if he had been found guilty.

6Draco Malfoy is a fictional character in the Harry Potter series of books and universe of films.

7Steven Stavropoulos, the Wisdom of the Ancient Greeks 95 (2005).

8Id. at 30.

9Id. at 31 (quoting Plato, “The worst case of injustice is for someone to believe that he is just while he is not.”).

10Id. at 112 (quoting Sophocles).

11Id. at 32 (quoting Sophocles).

12Id. at 113 (quoting Sophocles, “All of a man’s affairs become diseased when he wishes to cure evils by evils.”).

13Narcotic-like effects from ingesting this toxic plant can be observed as soon as thirty minutes after ingestion, with victims falling asleep and unconsciousness gradually deepening until death a few hours later. The onset of symptoms is similar to that caused by curare, with an ascending muscular paralysis of the respiratory system, causing death from oxygen deprivation.

14In ancient Greece, hemlock (Conium maculatum) is the plant that killed Theramenes, Socrates, Polemarchus, Matthias Corvinus, and Phocion. Interestingly enough, Socrates, the most famous victim of hemlock poisoning, was accused not of homicide, but the “crime” of impiety and corrupting the minds of the young men of Athens.

15Plutarch, Plutarch’s Lives, Vol. I, 17. www.gutenberg.net , (last visited December 14, 2022).

16Sharon Anderson, Draco’s End (Death by Gifts of Cloaks), https:// mindtheimage.com/dracos-end/, (last visited December 15, 2022).

17Chilon of Sparta, Thales of Miletus, Bias of Priene, Cleobulus of Lindos, Pittacus of Mytilene, and Periander of Corinth were the remaining six sages of ancient Greece according to legend.

18Stavropoulos, supra note vii, at 39 (quoting Euripides, “Moderation, the noblest gift of heaven.”).

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