All of this looks similar to what we see in other societies living with the Absent Leviathan. In fact, there are many similarities between Draco’s law and other codifications of informal laws without centralized authority, like the Albanian Kanun. The Kanun, attributed to Lekë Dukagjini in the fifteenth century, was a collection of norms that governed behavior in the Albanian mountains (and wasn’t written down until the early twentieth century). Without a centralized state, Albanian rules and norms were enforced, just like Draco’s homicide law, by extended families and clans. The Kanun heavily featured blood feuds in retaliation for transgressions. This is vividly illustrated by the first clause dealing with murder, which starts with blood feuds.
Ambush involves taking up a position in covert in the mountains or plains of Albania and lying in wait for an enemy in the blood feud or someone else who is intended to be killed. (To waylay, to lie in ambush, to set a trap for someone.)
It was an initial principle of the Kanun that “blood follows the finger,” meaning that
according to the old Kanun of the mountains of Albania, only the murderer incurs the blood-feud, i.e. the person who pulls the trigger and fires the gun or uses some other weapon against another person.
The later Kanun extends the blood feud to all males in the murderer’s family, even an infant in the cradle; cousins and close nephews incur the blood feud during the twenty-four hours following the murder. Culpability then spreads to extended kinfolk. With respect to accidental murders, the Kanun states, “In this type of killing, the murderer must leave and remain concealed until the affair is clarified.” Exactly as in Draco’s law, except that nobody even tried to write down, clarify, or regulate what these norms were in Albania until the twentieth century.
Solon’s Shackles
Less than thirty years after Draco wrote his laws, Athens started the process of building a Shackled Leviathan. The problem of controlling routine conflicts and the power struggles among elites was ongoing. To this was now added conflict between elites and citizens over the direction of society. Aristotle observed that around the time of Draco there was “an extended period of discord between the upper classes and the citizens.” In the words of Plutarch, there was a
long-standing political dispute, with people forming as many different political parties as there were different kinds of terrain in the country. There were the Men of the Hills, who were the most democratic party, the Men of the Plain, who were the most oligarchic, and thirdly the Men of the Coast, who favored an intermediate, mixed kind of system.
In essence, the disagreement was over the balance of power between elites and regular people, and whether the state would be controlled democratically or oligarchically (meaning by the handful of richest and most powerful families). Solon, a trader and widely respected military commander, played the defining role in charting Athens’s course.
In 594 BCE, Solon was made Archon for a year. As Plutarch put it, “The rich found him acceptable because of his wealth, and the poor because of his integrity.” The post of Archon had been monopolized by elites, but Solon likely assumed the role through popular pressure, as the struggle between the elites and the citizens tilted a little in favor of the latter. He turned out to be quite a reformer, transforming Athenian institutions in order to constrain the elites’ and the state’s power over the citizens, while at the same time increasing the capacity of the state to resolve conflicts. In a surviving fragment of his writings, Solon observed that his institutional design was intended to create a balance of power between the rich and the poor.
To the people I gave as much privilege as was sufficient for them, neither reducing nor exceeding what was their due. Those who had power and were enviable for their wealth I took good care not to injure. I stood casting my strong shield around both parties and allowed neither to triumph unjustly.
Solon’s reforms attempted to strengthen the people against the elites while at the same time assuring the elites that their interests would not be radically threatened.
When Solon became Archon the basic political institutions of Athens consisted of two assemblies, the Ekklesia, which was open to all male citizens, and the Areopagus, which was the main executive and judicial institution. The Areopagus was composed of former Archons and was under elite control. Many Athenians were getting poorer during this period and had been excluded even from the Ekklesia, because they were trapped in debt peonage and servitude and had lost their rights as citizens. Aristotle noted that “all loans were made on the security of the person of the debtor until the time of Solon.” This was the Athenian version of the cage of norms, with people turning into perpetually indebted, unfree pawns as a result of their worsening economic conditions. Solon understood that political balance in Athens would require regular citizens to participate in politics, but this wasn’t possible when they were in a position of servitude, and certainly not when they were losing their citizenship. In Aristotle’s words, “The mass of the people … had virtually no share in any aspect of government.” So to ensure greater participation Solon canceled all contracts of debt peonage and passed a law that banned borrowing by using one’s own person as security. He also made it illegal to enserf an Athenian. There was to be no more pawning. At a stroke Solon broke Athenians free from this part of their cage of norms.
But banning debt peonage wasn’t enough when people were economically subservient to the elite. Greater liberty was necessary to make Athenians more active citizens so that they could get even more liberty. To this end, Solon sought to improve their access to economic opportunities. He implemented a land reform by uprooting the boundary markers of fields. These markers recorded the obligation of the tenants farming the land to pay a sixth of their produce. By eliminating them Solon in effect freed the tenants from the landowners, giving them the land they owned, and turning Attica, the region surrounding Athens, into a land of small farmers. Solon also eliminated restrictions on movement within Attica. These measures greatly extended the citizenry that could participate in the Ekklesia. The existing balance of power was reconfigured in one fell swoop.
Solon also revamped the process of selecting the Archons and increased their number to nine, in part to improve political representation. But he had to keep the elites happy too, and for this he divided the population into four classes based on their incomes from land, and only men from the top two classes could become Archons (chosen by lot from a list of people nominated by the four traditional “tribes” of Athens). After serving as Archon, which he could do only once, and for a year, a man could still serve in the Areopagus. Thus the elites would continue to control the Archonship and the Areopagus, but now there were clear rules that opened up the Areopagus to a greater subset of (elite) society and helped to balance different interests. Solon also created a new council of 400, the Boule, which was to serve as the main executive council, and he redefined the role of the Areopagus to be largely judicial. As with the Archons, the four traditional tribes of Athens were equally represented in the Boule.
Having established a balance between elites and citizens, Solon started the process of state building. The critical step was judicial reform. Solon first abolished all but one of Draco’s laws. The laws he promulgated were very different. One fragment records that
Draco’s law about homicide the anagrapheis [“writers up”] of the laws shall write up on a stone stele, taking it over from the basileus and the secretary of the council, and shall place in front of the Stoa. The poletai shall make the contract in accordance with the law; the hellenotamiai shall provide the money.
Even in the one law that Solon kept, he replaced the role of the basileus with the poletai and the hellenotamiai. The word basileus, typical of the Homeric epics the Iliad and the Odyssey, translates as something like “big man,” which was a type of Dark Age chief. Odysseus, whose exploits during his ten-year voyage after the Trojan War are recounted in the Odyssey, was a basileus. The poletai and the hellenotamiai, on the other hand, were magistrates or state officials. So Solon introduced a radical change—bureaucratized state institutions to enforce the law.