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Nomos in Attic rhetoric and oratory

Published online by Cambridge University Press:  23 February 2012

C. Carey
C. Carey
Affiliation:
Royal Holloway, University of London
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Extract

Forensic oratory must of necessity deal with the subject of law, and rhetoric which aspires to be of use in the courts must offer the potential litigant or logographer guidance on the way to deal with questions of law. Accordingly, Aristotle devotes some space to this issue in the Rhetoric. Although the morality of Aristotle's advice has been debated, little attention has been paid to the more basic question of the soundness of his advice. The aim of this paper is to examine Aristotle's presentation of the rhetoric of law in the Rhetoric in comparison with actual practice in surviving forensic speeches. The fourth century Rhetorica ad Alexandrum, commonly ascribed to Anaximenes of Lampsakos, also offers advice on the manipulation of argument from law, and the general similarity of that advice to Aristotle's suggests either direct influence or a common source. Anaximenes' discussion of the use of law in forensic oratory is both more brief and less systematic, and will be given more cursory treatment.

Type
Articles
Information
The Journal of Hellenic Studies , Volume 116 , November 1996 , pp. 33 - 46
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1996

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References

1 See Guthrie, W.K.C., The sophists (Cambridge 1971) 125 f.CrossRefGoogle Scholar, Grimaldi, W.M.A. S.J., Aristotle Rhetoric I, a commentary (New York 1980) 317 f.Google Scholar, for the ethical question. Problems of application are noted in passing by Mirhady, D.C., ‘Aristotle on the rhetoric of law’, GRBS 31 (1990) 397Google Scholar, Harris, E.M. ‘Law and oratory’, in Persuasion ed. Worthington, I. (London 1994) 130–150, 140.Google Scholar

2 Arist. Rhet. 1355b35 ff.

3 Although Anaximenes recognizes a similar category of proof (Rhet. Alex. 1428a16 ff.), it is interesting to note that his four types of ‘supplementary proof’ do not include law. Mirhady, D., ‘Non-technical pisteis in Aristotle and Anaximenes’, AJP 112 (1991) 5–28, 10 f.Google Scholar suggests that Aristotle's item ‘law’ corresponds to Anaximenes’ item ‘opinions of the speaker’ and that both reflect an original item enklema, ‘the statement of accusation’ in their shared source. However, since nothing is said by Anaximenes in any of his references to this pistis to indicate that it is to be confined to any one or other aspect of the factual or other issues dealt with in oratory, forensic or otherwise, I find it difficult to accept the identification. It is easier to suppose that the two authors have independently expanded a simpler schema which they have inherited.

4 Witnesses, e.g. Lys. 13.64 laws, e.g. Lys. 14.5

5 See e.g. Isai. 2.16

6 I discuss this issue in ‘Artless proofs in Aristotle and the orators’, BICS xxxix (1994) 95–106.

7 [Dem.] 26.24 As with so much else in the Athenian system, enforcement (by legal action) was presumably left to the volunteer, either the opponent or ho boulomenos.

8 For this and other clauses in the dikast's oath see Harrison, A.R.W., The law of Athens II (Oxford 1971) 48Google Scholar, Bonner, R.J. and Smith, G., The administration of justice from Homer to Aristotle II (Chicago 1938) 152 ff.Google ScholarTodd, S.C., The shape of Athenian law (Oxford 1993) 60Google Scholar underrates the force of law when he attributes to it only a persuasive power. It is of course true that the litigant in citing a law seeks to persuade the jurors of its applicability to his own or his opponent's conduct, and, where conflicting laws are cited, of the greater applicability in context of one law rather than another. Thus the law forms part of the process of persuasion. But this does not mean that the jurors, once convinced of the relevance of a law to the subject at issue, feel that its authority in court is merely to suggest a response. The juror's oath, and the strenuous efforts of Athenian litigants to prove that the law supports their stance on the subject at issue, indicate that the jurors did feel bound by the law and that for the most part they consciously sought to make their decisions conform to the law. That the jurors might allow other factors to outweigh the law indicates only that its authority was not absolute, not that it did not take priority over other considerations. Here I am in general agreement with Harris (n. 1), though I do not share his belief (p. 137) that we can dismiss occasions on which emotional appeal obfuscated legal considerations as rare aberrations.

9 See in general Ostwald, M., ‘Was there a concept of ἄγραϕος νόμος in classical Greece’ in Exegesis and argument: studies in Greek philosophy presented to Gregory Vlastos, ed. Lee, E.N., Mourelatos, A.P.D., Rorty, R.M., 70–104, 71f.Google Scholar, Grimaldi (n. 1) 287.

10 Rhet. 1375a34–b2

11 Rhet. 1374a18 ff.

12 Thuc. 2.37.3 Lys. 6.10

13 Rhet. 1373b18 f. More precisely, the Mss. have a lacuna after the quotation is supplied by the scholiast.

14 Rhet. 1354a11 ff. In ‘Artless proofs in Aristotle and the orators’ (n. 6) I argue that Aristotle exaggerates the distinction between artful and artless proofs.

15 Rhet. 1375a27 ff. Grimaldi (n. 1) objects to the translation of as ‘when the written law is opposed to our case’, but offers no argument. His alternative, to take as ‘that which took place, the actual fact, the specific action at issue’ gives an inferior sense. The question is not whether the law is relevant to the subject under dispute (for throughout his discussion of nomos Aristotle clearly envisages the citation of law by one side or the other) but which side the law favours.

16 There is a textual problem at 1375a28 f. Mss. and editors are divided between and . I agree with Mirhady (n. 1) 396 in preferring the second of these two readings; the context requires a firm distinction between and written nomos, and the positive is therefore to be preferred to the comparative. For my present purposes, however, all that matters is that epieikeia is offered as an alternative to gegrammenos nomos.

17 Plat. Crit. 50c–53a.

18 Dem. 39.41 For the general compatibility of oath and laws see e.g. Aischin. 3.8 and Lys. 10.32 (n. 41).

19 Lyk.1.9 Cf. Lys. 14.4, [Dem.] 56.48.

20 See Dem. 20.91, Aischin.3.38.

21 See especially S.C. Todd (n. 8) 64 ff.

22 For other examples of the rigidity of rhetorical theory in comparison with actual practice see Carey, C., ‘Rhetorical means of persuasion’, in Persuasion ed. Worthington, I. (London 1994) 26–45Google Scholar, esp. 29, 35 f., 39 f., 43f.

23 1354a31 ff This suggestion was also made to me independently by Dr. R.G. Osborne.

24 At 1354a 15 ff. Aristotle asserts that logical arguments are the while emotional appeals are and are directed Cf. 1415b5 ff.

25 See n. 12.

26 See n. 12.

27 Anaximenes 1421b36 ff. For Aristotle see n. 11.

28 Arist. E.N. 1180a34 ff. Dem. 18.275 Xen. Mem. iv.4.19.

29 Hyp. Athen. 13

30 Dem. 57.5 Cf. Lys. 10.13

31 [Dem.] 44.8 [Dem.] 56.14 . The effect is to present the speaker as an a reasonable/equitable man, whom Aristotle (E.N. 1138al f.) characterizes as disinclined to insist rigidly on his rights, even when the law is on his side

32 Cf. Isai. 1.35 [sc. ] Dem. 19.179 See also Dem. 35.45, 39.41.

33 Cf. [Dem.] 42.2 See also Isai. 4.21, Hyp. Athen. 13.

34 Cf. also Anaximenes 1444a 10 ff. Mirhady (n. 1) 396 n. 7, 399 argues that epieikeia in Aristotle is to be distinguished from common law. It is however difficult to disentangle the two concepts completely. Evidently the two are not completely identical, but they are closely associated for Aristotle, who makes no attempt to distinguish them precisely. At Rhet. 1374a27 ff., he discusses epieikeia in the context of his definition of written and unwritten dikaia; he defines it as ‘justice contrary to written law’, particularly associated with imprecision and omission in the law (cf. E.N. 1137bII ff.), which in context is explicitly one of two aspects of unwritten dikaia (for the close relationship between epieikeia and to dikaion see E.N 1137a33 ff.). Epieikeia and unwritten nomos are associated at 1375a29 ff.

35 Cf. Harris (n. 1) 140.

36 As Dem. 21.148 225 24.175 Cf. 25.81.

37 Isai. 2.24 Cf. Isokr. 19.50 [sc.] ] Lys.1.2

38 It also implies that this antithesis had permeated from intellectual debate into the collective consciousness.

39 Cf. Lys. 14.11 Dem. 21.57.

40 Dem. 21 is particularly rich in examples: cf. 21.34. 57, 177, 224.

41 E.g. Lys. 10.32 Dem. 21. 177 18.121 . See in general Harris (n. 1) 149 nn.6–7.

42 Cf. Isai.6.49 Dem. 21.48 36.26 f.

43 Cf. Lys.15.9

44 Lys. 1.26

45 Ant. 6.2, The use of the same motif at 5.14, though rather closer to Aristotle's general treatment of law (since it is closely linked to the speaker's objection to the procedure used against him), again seeks to achieve an emotional effect rather than to prove a substantive point.

46 Cf. [Dem.] 42.2 Lys. 14.9.

47 Lys. 6.8.

48 [Dem.] 59.115.

49 [Dem.] 26.27 Cf. Lys. 10.32 (n. 41), Dem.21.225 (n. 50).

50 Lys. 1.34 Dem. 21.224–5

51 [Dem.] 58.56, [Dem.] 59.115; cf. Dem.21.221 ff.

52 Lys. 14.15. Cf. [Dem.] 59.86.

53 See n. 50.

54 This article is a revised version of a paper presented to research seminars at the Institute of Classical Studies in London and at Oxford University in November 1993. I wish to express my thanks to all who commented on both occasions. I am also grateful to the anonymous referees for a number of helpful suggestions.