Winfried Schmitz produces in two handsome volumes a new edition of the laws of Draco and Solon, with extensive discussion of the historical background of the laws and a detailed commentary. The first volume comprises a preamble (pp.1-12) and introduction to the transmission of the laws (pp. 15-62), followed by five chapters (pp. 65-468) covering tyranny, homicide, the Areopagus, public officials, and public actions. The second comprises four chapters on laws arranged according to the competences of the nine archons (pp. 469-865), followed by appendices (pp. 866-884) and bibliography (pp. 885-902). The new edition is impressive in scope, and a replacement in German for the now outdated commentary of E. Ruschenbusch is overdue.[1]
After an introductory preface arguing that axones originally denoted objects that carried Draco’s statutes, kyrbeis those that carried Solon’s, Schmitz’s first two chapters turn to tyranny and homicide. Schmitz postulates that the tyranny law cited at [Arist.] Ath. Pol. 16.10 predated Draco and entailed two penalties, exile for tyrants and atimia for accessories. Influenced by the views of G. Thür, Schmitz understands the tyranny law to respond to the Cylonian coup and was mirrored a decade later by the first homicide law, framed to resolve the Cylonian sacrilege.[2] Schmitz argues that homicide law emerged in two stages, with Draco in 621 and Solon in 594/3: Draco eschewed intentional homicide and dealt solely with unintentional, lawful, and inadvertent killing; Solon expanded Draco’s provisions to include intentional homicide, heard by the newly created Areopagus. Schmitz claims that the duty to bring the killer to trial lay with the relatives of the victim. Assuming that the documents in the Demosthenic speeches are genuine, Schmitz argues from their variant terminology that the Draconian statute had changed by the age of the orators and that between Draco and the fourth century, homicide law had undergone revision. However, Antipho 5.14 = 6.2 speaks of the permanence of homicide law, as does the entrenchment clause at D. 23.62. R.S. Stroud’s edition, upon which Schmitz relies, has now been superseded by that of E.M. Harris and M. Canevaro, which appeared too late for Schmitz but which throws doubt on his textual reading.[3] The demonstration of K.J. Hölkeskamp, that the artificial terminological distinction between the ordinances (thesmoi) of Draco and laws (nomoi) of Solon is late and unreliable, weakens the inference about a Solonian redaction.[4] On the matter of transmission, Schmitz downplays the fact that the term axon is used only twice in connection with Draco but abundantly with Solon.
The third chapter argues that the Areopagus was forged by Solon out of a pre-existing tribunal of three hundred, set up in the aftermath of the Cylonian putsch. The surviving accounts of the massacre (Hdt. 5.70-72; Th. 1.125-126; [Arist.] Ath. Pol. 1; Plu. Sol. 12; Paus. 7.25; D.L. 1.110-111), incompatible in details, do not licence the view that homicide, rather than the circumstances of the religious pollution it incurred, was the issue that provoked indignation. Schmitz claims that ancient authors described the Areopagus as a Solonian innovation. In Plutarch’s day, a debate had arisen (Sol. 19.3-4) over whether the Areopagus predated Solon, but the Atthidographers stated unanimously that it was pre-Solonian (FGrHist 324 F 3 = 328 F 20a). Schmitz maintains that by equipping the Areopagus to try intentional homicide and subversion, Solon authorised eisangelia. As a recent study has however shown, there were two types of eisangelia, one to the Council about conduct of magistrates, attested in the late fifth century (Antipho 6), and another to the court against subversion, treason and speakers in the Assembly who accepted bribes, dated to the early fourth century.[5] Schmitz infers that voting by sherds originated with the pre-Cleisthenic Areopagus and that by democratising ostracism, Cleisthenes stripped the Areopagus of jurisdiction over subversion. Of the sources listed at pp. 320-324, the only one to assign eisangelia to the Solonian Areopagus is [Arist.] Ath. Pol. 8.4, which is of questionable historicity.[6] The reconstruction of an ancient Areopagite oath from D. 24.144-148 rests on the a priori claim that the judicial powers of the Council of Five Hundred in Classical times originally fell to the Areopagus.[7]
The fourth and fifth chapters, on dokimasia, euthynai, atimia, apagoge, ephesis, and endeixis, argue that scrutiny of officials was conducted by the Solonian Areopagus, empowered to investigate the initiand’s character, source of income, and, on departure, track record. The passages in Isocrates (7.44-46) and the Atthidographers (FGrHist 325 F 10 = 328 F 196) about the supervisory powers of the Areopagus bear no relation to dokimasia or euthynai but refer to idleness and sumptuous living. [Arist.] Ath. Pol. 8.2 clarifies that the pre-Solonian Areopagus chose magistrates and that Solon put an end to its prerogative. Schmitz defines atimia (p. 346) as an exclusion from office (Amtsunfähigkeit) and claims that Solon summed it up in an unattested bill of rights for citizens. The definition of atimia as the loss of political rights draws on an old assumption, now refuted by L. Rocchi,[8] that atimia only applied to citizens. On the strength of Isoc. 7.46-47, Schmitz argues that Solon invested the Areopagus with the power to scrutinise magistrates on departure from office, though Isocrates does not refer to the vetting of magistrates. Schmitz links the nomos argias referenced at Lys. frs. 40a-b and 246 (Carey) to failure to carry out public duties (Untätigkeit im Amt), but this is an insecure inference, as its more normal application was to unemployment and begging.[9] There is no evidence that the pre-Ephialtic Areopagus vetted officials on departure from office. Aristotle clarifies that Solon invested the people with euthynai (Pol. 2.12.1274a15-18), whereas the Areopagite prerogative to punish (euthynein) wrongdoers outlined at [Arist.] Ath. Pol. 8.4 relates to nomophylakia. In the fourth century, the Areopagus had general power of surveillance, which may have included policing religious offences ([D.] 59.80). The verb euthynein is a general term for punishing and need not refer to euthynai (see IG I3 1, 4, 6, 21, 34, 41, 55, 61, 71, 73).[10] The problem is that we know too little about nomophylakia in the Archaic period to be able to define it. Schmitz understands the establishment of the graphe hybreos in the backdrop of intra-elite competition, whereby notables built up clienteles through patronage in the courts, which is to assume that the rule of law was only ever a façade.
The sixth and seventh chapters address actions before the archon basileus and polemarchus. In the fourth century, impiety went before the Eumolpidae (by apagoge, dike, or graphe) or before the basileus (see D. 22.27; Hyp. 4.6; [Arist.] Ath. Pol. 57.2). The claim that the Solonian Areopagus tried impiety is unsubstantiated and bypasses evidence, on which Schmitz comments elsewhere (pp. 441-450), that the most democratic of Solon’s reforms was transferral (ephesis) from the magistrate to popular jurisdiction, the exception being homicide ([Arist.] Ath. Pol. 9.1; Plu. Sol. 18.2-3; Poll. Onomast. 8.62). Despite Plu. Sol. 24.1-2, Schmitz denies that Solon banned exports. Schmitz follows the common view that IG II2 1357a forms part of the ‘code’ of Nicomachus, but this rests on a misidentification with the ‘wall’ attested in a forged document at And. 1.83-84 and on the marrying up of a phrase at fr. 3A line 77 with Lys. 30.17. The opisthographic format, as well as the absence of prescripts, problematises the assumption that these fragments come from a law code.[11] Combining those fragments with Plu. Sol. 23.3, Schmitz conjectures that the calendar entailed rewards for athletic victors and cult personnel. Plutarch, however, speaks of price fixing and draws no connection between athletic rewards and religious laws. Schmitz understands the ban on funeral extravagance as an attempt to control private expenditure, but Plu. Sol. 21.4-5 implies that these laws were chiefly about female modesty. Without sound evidence, Schmitz speculates that the graphe deilias, which in the Classical age fell to the jurisdiction of strategoi, before 462/1 fell to the polemarchus.
The eighth and ninth chapters cover abuse, seduction, prostitution, bodily injury, ejection, assault, theft, slander, interest, contracts, inheritance, adoption, and marriage. The fourth century attributed the graphe hybreos (Isoc. 20.2; D. 21.45-47; Aeschin. 1.15-16) and nomos hetaireseos (Aeschin. 1.138-139) to Solon. On the economic reforms, Schmitz understands the seisachtheia to have been a bill of clean slate restoring erstwhile debtors to political rights. Sol. fr. 36, lines 8-15 [West] speaks of the return of those exported abroad justly or unjustly and the establishment of the rule of law, not of the cancellation of debt. Schmitz treats under ‘wrongful speech’ (‘üble Nachrede’) insolence to parents (Lys. 10.9), speaking ill of the dead (D. 20.104 with schol; 40.49; Plu. Sol. 21.1), and slander (D. 23.50). Whilst recognising that in Draco’s law children of non-engyetic unions were understood to be free members of the community, Schmitz confuses two distinct senses of legitimacy, one to do with ethnicity (which affected citizenship), the other to do with lawful betrothal (which affected inheritance) (p. 746). The law of 451/0 ([Arist.] Ath. Pol. 26.3) implies restriction of citizenship to those who could demonstrate Athenian parentage on both sides, as does the scrutiny before the deme ([Arist.] Ath. Pol. 42.1), not to those born from engyetic unions.[12]
Schmitz has written a detailed account of Archaic Athenian law which is to be admired for its compendious breadth and depth of research. At a theoretical level, however, the chief weakness of his approach is to view law as an instrument of politics rather than an independent science sui generis. Unfortunately, the result is a very speculative account, where too much of the discussion hinges on variables. Schmitz’s edition has much of value to offer in terms of access to contemporary scholarship, but its treatment of evidence is often unreliable and raises more questions than it answers. This edition of Draco and Solon does not satisfactorily replace older ones. A replacement edition is needed.
Notes
[1] E. Ruschenbusch, Solon. Das Gesetzwerk – Fragmente, Übersetzung und Kommentar. Edited by K. Bringmann (Stuttgart, 2010).
[2] G. Thür, ‘New light on Draco and the Cylonian sacrilege’, in W. Riess (ed.), Colloquia Attica. Neuere Forschungen zur Archaik, zum athenischen Recht und zur Magie (Stuttgart, 2018), 27-35.
[3] E.M. Harris and M. Canevaro, ‘Toward a new text of Draco’s homicide law’, REG 136 (2023), 1-52.
[4] K.J. Hölkeskamp, ‘Nomos, Thesmos, und Verwandtes. Vergleichende Überlegungen zur Konzeptualisierung geschriebenen Rechts im klassischen Griechenland’, in D. Cohen (ed.), Demokratie, Recht, und soziale Kontrolle im klassischen Athen (Munich, 2002), 115-146.
[5] E.M. Harris with A. Esu, ‘Policing major crimes in Classical Athens and other public procedures’, RDE 11 (2021), 39-120.
[6] M.H. Hansen, ‘Eisangelia: a reply’, JHS 100 (1980), 89-95.
[7] D. Leão and P.J. Rhodes, The Laws of Solon. A New Edition with Introduction, Translation and Commentary (London and New York, 2015), 156. For a demonstration that the historical material at [Arist.] Ath. Pol. 25.2 is faulty, see E.M. Harris, ‘Aeschylus’ Eumenides. The role of the Areopagus, the rule of law and political discourse in Greek tragedy,’ in A. Markantonatos and E. Volonaki (eds.), Poet and Orator (Berlin and Boston, 2019), 389-419.
[8] See L. Rocchi, ‘Atimia. Dishonour, Disfranchisement, and Civic Disability in Archaic and Classical Athens,’ Ph.D. dissertation, Edinburgh, 2022; ‘“Identity, Status, and “Dishonour”: was atimia relevant only to citizens?’ in J. Filonik, C. Plastow, R. Zelnick-Abramovitz (eds.), Citizenship in Antiquity (London, 2023), 313-326.
[9] See L. Cecchet, ‘The Athenian nomos argias. Notes for a possible interpretation’, IncidAntico 14 (2016), 117-142.
[10] On nomophylakia see further the essay of Harris cited above, n.7. On the wide meaning of euthynein, I thank Edward Harris for drawing my attention to this evidence.
[11] A full text is provided by S.D. Lambert, ‘The sacrificial calendar of Athens’, ABSA 97 (2002), 353-399. Against the received idea that this was part of a law code, see C.J. Joyce, Amnesty and Reconciliation in Late Fifth-Century Athens: The Rule of Law under Restored Democracy (Edinburgh, 2022), 105-107.
[12] See C.J. Joyce, ‘Citizenship or inheritance? The role of the phratry in Classical Athens’, Polis 36 (2019), 466-486.