The Complete Works of Aristotle

by Barnes, Jonathan, Aristotle

  Not of to-day or yesterday it is,

  But lives eternal: none can date its birth.43

  And so Empedocles, when he bids us kill no living creature, says that doing this is not just for some people while unjust for others, [15]

  Nay, but, an all-embracing law, through the realms of the sky

  Unbroken it stretcheth, and over the earth’s immensity.44

  And Alcidamas says the same in his Messeniac Oration.

  The actions that we ought to do or not to do have also been divided into two classes as affecting either the whole community or some one of its members. From [20] this point of view we can perform just or unjust acts in either of two ways—towards one definite person, or towards the community. The man who is guilty of adultery or assault is doing wrong to some definite person; the man who avoids service in the army is doing wrong to the community.

  Thus the whole class of unjust actions may be divided into two classes, those [25] affecting the community, and those affecting one or more other persons. We will next, before going further, say what being wronged is. Since it has already been settled that doing a wrong must be voluntary, being wronged must consist in having an injury done to you by someone who does it voluntarily. In order to be wronged, a man must suffer actual harm and suffer it involuntarily. The various possible forms [30] of harm are clearly explained by our previous separate discussion of goods and evils. We have also seen that a voluntary action is one where the doer knows what he is doing. We now see that every accusation must be of an action affecting either the community or some individual. The doer of the action must either know and act voluntarily or not know and act involuntarily. In the former case, he must be acting [35] either from choice or from passion. (Anger will be discussed when we speak of the passions; the motives for crime and the state of mind of the criminal have already been discussed.) Now it often happens that a man will admit an act, but will not [1374a1] admit the prosecutor’s label for the act nor the facts which that label implies. He will admit that he took a thing but not that he stole it; that he struck someone first, but not that he committed outrage; that he had intercourse with a woman, but not that he committed adultery; that he is guilty of theft, but not that he is guilty of [5] sacrilege, the object stolen not being consecrated; that he has encroached, but not that he has encroached on State lands; that he has been in communication with the enemy, but not that he has been guilty of treason. Here therefore we must be able to distinguish what is theft, outrage, or adultery, from what is not, if we are to be able to make the justice of our case clear, no matter whether our aim is to establish a man’s guilt or to establish his innocence. Wherever such charges are brought [10] against a man, the question is whether he is or is not a wrong-doer and wicked. It is choice that constitutes wickedness and wrong-doing, and such names as outrage or theft imply choice as well as the mere action. A blow does not always amount to outrage, but only if it is struck with some such purpose as to insult the man struck or [15] gratify the striker himself. Nor does taking a thing without the owner’s knowledge always amount to theft, but only if it is taken with the intention of keeping it and injuring the owner. And as with these charges, so with all the others.

  We saw that there are two kinds of right and wrong conduct towards others, one provided for by written ordinances, the other by unwritten. We have now [20] discussed the kind about which the laws have something to say. The other kind has itself two varieties. First, there is the conduct that springs from exceptional goodness or badness, and is visited accordingly with censure and loss of honour, or with praise and increase of honour and decorations: for instance, gratitude to, or [25] requital of, our benefactors, readiness to help our friends, and the like. The second kind makes up for the defects of a community’s written code of law. For equity is regarded as just; it is, in fact, the sort of justice which goes beyond the written law. Its existence partly is and partly is not intended by legislators; not intended, where [30] they have noticed no defect in the law; intended, where they find themselves unable to define things exactly, and are obliged to legislate universally where matters hold only for the most part; or where it is not easy to be complete owing to the endless possible cases presented, such as the kinds and sizes of weapons that may be used to inflict wounds—a lifetime would be too short to make out a complete list of these. If, then, a precise statement is impossible and yet legislation is necessary, the law [35] must be expressed in wide terms; and so, if a man has no more than a finger-ring on his hand when he lifts it to strike or actually strikes another man, he is guilty of a [1374b1] criminal act according to the written words of the law; but he is innocent really, and it is equity that declares him to be so. From this definition of equity it is plain what sort of actions, and what sort of persons, are equitable or the reverse. Equity must be [5] applied to forgivable actions; and it must make us distinguish between wrongdoings on the one hand, and mistakes, or misfortunes, on the other. (A misfortune is an act, not due to wickedness, that has unexpected results; a mistake is an act, also not due to turpitude, that has results that might have been expected; a wrongdoing has results that might have been expected, but is due to turpitude.) Equity bids us be merciful to the weakness of human nature; to think less about the laws than about [10] the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his choice, nor this or that detail so much as the whole story; to ask not what a man is now but what he has [15] always or for the most part been. It bids us remember benefits rather than injuries, and benefits received rather than benefits conferred; to be patient when we are wronged; to settle a dispute by negotiation and not by force; to prefer arbitration to [20] litigation—for an arbitrator goes by the equity of a case, a judge by the law, and arbitration was invented with the express purpose of securing full power for equity.

  The above may be taken as a sufficient account of the nature of equity.

  14 · The worse of two acts of wrong done to others is that which is prompted by the worse disposition. Hence the most trifling acts may be the worst ones; as [25] when Callistratus charged Melanopus with having cheated the temple-builders of three consecrated half-obols. The converse is true of just acts. This is because the greater is here potentially contained in the less: there is no crime that a man who has stolen three consecrated half-obols would shrink from committing. Sometimes, however, the worse act is reckoned not in this way but by the greater harm that it [30] does. Or it may be because no punishment for it is severe enough to be adequate; or the harm done may be incurable—a difficult and even hopeless crime to defend;45 or the sufferer may not be able to get his injurer legally punished, a fact that makes the harm incurable, since legal punishment and chastisement are the proper cure. Or again, the man who has suffered wrong may have inflicted some fearful punishment on himself; then the doer of the wrong ought in justice to receive a still more fearful [35] punishment. Thus Sophocles, when pleading for retribution to Euctemon, who had cut his own throat because of the outrage done to him, said he would not fix a [1375a1] penalty less than the victim had fixed for himself. Again, a man’s crime is worse if he has been the first man, or the only man, or almost the only man, to commit it; or if it is by no means the first time he has made the same mistake; or if his crime has led to the thinking-out and invention of measures to prevent and punish similar crimes—thus in Argos a penalty is inflicted on a man on whose account a law is [5] passed, and also on those on whose account the prison was built; or if a crime is specially brutal, or specially deliberate; or if the report of it arouses more terror than pity. There are also such rhetorically effective ways of putting it as the following: that the accused has disregarded and broken not one but many solemn obligations like oaths, promises, pledges, or rights of intermarriage between [10] states—here the crime is worse because it consists of many crimes; and that the crime was committed in the very place where criminals are punished, as for example perjurers do—it is argued
that a man who will commit a crime in a law-court would commit it anywhere. Further, the worse deed is that which involves the doer in special shame; that whereby a man wrongs his benefactors—for he does more than [15] one wrong, by not merely doing them harm but failing to do them good; that which breaks the unwritten laws of justice—the better sort of man will be just without being forced to be so, and the written laws depend on force while the unwritten ones do not. It may however be argued otherwise, that the crime is worse which breaks the written laws; for the man who commits crimes for which terrible penalties are [20] provided will not hesitate over crimes for which no penalty is provided at all.—So much, then, for the comparative badness of wrongdoing.

  15 · There are also the so-called ‘non-technical’ means of persuasion; and we must now take a cursory view of these, since they are specially characteristic of forensic oratory. They are five in number: laws, witnesses, contracts, tortures, oaths.

  [25] First, then, let us take laws and see how they are to be used in persuasion and dissuasion, in accusation and defence. If the written law tells against our case, clearly we must appeal to the universal law and to equity as being more just. We must argue that the juror’s oath ‘I will give my verdict according to my honest [30] opinion’ means that one will not simply follow the letter of the written law. We must urge that the principles of equity are permanent and changeless, and that the universal law does not change either, for it is the law of nature, whereas written laws often do change. This is the bearing of the lines in Sophocles’ Antigone, where Antigone pleads that in burying her brother she had broken Creon’s law, but not the unwritten law:

  [1375b1] Not of today or yesterday they are;

  Not I would fear the wrath of any man . . .46

  We shall argue that justice indeed is true and profitable, but that sham justice is not, and that consequently the written law is not, because it does not fulfil the [5] function of law. Or that justice is like silver, and must be assayed by the judges, if the genuine is to be distinguished from the counterfeit. Or that the better man will follow and abide by the unwritten law in preference to the written. Or perhaps that the law in question contradicts some other highly-esteemed law, or even contradicts [10] itself. Thus it may be that one law will enact that all contracts must be held binding, while another forbids us ever to make illegal contracts. Or if a law is ambiguous, we shall turn it about and consider which construction best fits the interests of justice or utility, and then follow that way of looking at it. Or if, though the law still exists, [15] the situation to meet which it was passed exists no longer, we must do our best to prove this and to combat the law thereby. If however the written law supports our case, we must urge that the oath ‘to give my verdict according to my honest opinion’ is not meant to make the judges give a verdict that is contrary to the law, but to save them from the guilt of perjury if they misunderstand what the law really means. Or that no one chooses what is absolutely good, but everyone what is good for himself. Or that not to use the laws is as bad as to have no laws at all. Or that, as in the other [20] arts, it does not pay to try to be cleverer than the doctor: for less harm comes from the doctor’s mistakes than from the growing habit of disobeying authority. Or that trying to be cleverer than the laws is just what is forbidden by those codes of law that are accounted best.—So far as the laws are concerned, the above discussion is [25] probably sufficient.

  As to witnesses, they are of two kinds, the ancient and the recent; and these latter, again, either do or do not share in the risks of the trial. By ancient witnesses I mean the poets and all other notable persons whose judgements are known to all. Thus the Athenians appealed to Homer as a witness about Salamis; and the men of [30] Tenedos not long ago appealed to Periander of Corinth in their dispute with the people of Sigeum; and Cleophon supported his accusation of Critias by quoting the elegiac verse of Solon, maintaining that discipline had long been slack in the family of Critias, or Solon would never have written,

  Pray thee, bid the red-haired Critias do what his father commands him.47

  These witnesses are concerned with past events. As to future events we shall [1376a1] also appeal to soothsayers: thus Themistocles quoted the oracle about ‘the wooden wall’ as a reason for engaging the enemy’s fleet. Further, proverbs are, as has been said, one form of evidence. Thus if you are urging somebody not to make a friend of an old man, you will appeal to the proverb, [5]

  Never show an old man kindness.

  Or if you are urging that he who has made away with fathers should also make away with their sons, quote,

  Fool, who slayeth the father and leaveth his sons to avenge him.

  Recent witnesses are well-known people who have expressed their opinions about some disputed matter: such opinions will be useful support for subsequent disputants on the same points: thus Eubulus used in the law-courts against Chares [10] the reply Plato had made to Archibius, ‘It has become the regular custom in this country to admit that one is a scoundrel’. There are also those witnesses who share the risk of punishment if their evidence is pronounced false. These are valid witnesses to the fact that an action was or was not done, that something is or is not the case; they are not valid witnesses to the quality of an action, to its being just or [15] unjust, useful or harmful. On such questions of quality the opinion of detached persons does count. Most trustworthy of all are the ancient witnesses, since they cannot be corrupted.

  In dealing with the evidence of witnesses, the following are useful arguments. If you have no witnesses on your side, you will argue that the judges must decide from what is probable; that this is meant by ‘giving a verdict in accordance with one’s honest opinion’; that probabilities cannot be bribed to mislead the court; and [20] that probabilities are never convicted of perjury. If you have witnesses, and the other man has not, you will argue that probabilities cannot be put on their trial, and that we could do without the evidence of witnesses altogether if we need do no more than balance the pleas advanced on either side.

  The evidence of witnesses may refer either to ourselves or to our opponent; and [25] either to questions of fact or to questions of personal character: so, clearly, we need never be at a loss for useful evidence. For if we have no evidence of fact supporting our own case or telling against that of our opponent, at least we can always find evidence to prove our own worth or our opponent’s worthlessness. Other arguments [30] about a witness—that he is a friend or an enemy or neutral, or has a good, bad, or indifferent reputation, and any other such distinctions—we must construct from the same commonplaces as we use for enthymemes.

  Concerning contracts argument can be so far employed as to increase or [1376b1] diminish their importance and their credibility; we shall try to increase both if they tell in our favour, and to diminish both if they tell in favour of our opponent. Now for confirming or upsetting the credibility of contracts the procedure is just the same as for dealing with witnesses, for the credit to be attached to contracts depends [5] upon the character of those who have signed them or have the custody of them. The contract being once admitted genuine, we must insist on its importance, if it supports our case. We may argue that a contract is a law, though of a special and limited kind; and that, while contracts do not of course make the law binding, the [10] law does make any lawful contract binding, and that the law itself as a whole is a sort of contract, so that anyone who disregards or repudiates any contract is repudiating the law itself. Further, most business relations—those, namely, that are voluntary—are regulated by contracts, and if these lose their binding force, human intercourse ceases to exist. We need not go very deep to discover the other [15] appropriate arguments of this kind. If, however, the contract tells against us and for our opponents, in the first place those arguments are suitable which we can use to fight a law that tells against us. We do not regard ourselves as bound to observe a bad law which it was a mistake ever to pass: and it is ridiculous to suppose that we are bound to observe a bad and mistaken
contract. Again, we may argue that the [20] duty of the judge as umpire is to decide what is just, and therefore he must ask where justice lies, and not what this or that document means. And that it is impossible to pervert justice by fraud or by force, since it is founded on nature, but a party to a contract may be the victim of either fraud or force. Moreover, we must [25] see if the contract contravenes either universal law or any written law of our own or another country; and also if it contradicts any other previous or subsequent contract; arguing that the subsequent is the binding contract, or else that the previous one was right and the subsequent one fraudulent—whichever way suits us. Further, we must consider the question of utility, noting whether the contract is [30] against the interest of the judges or not; and so on—these arguments are as obvious as the others.

  Examination by torture is one form of evidence, to which great weight is often attached because it is in a sense compulsory. Here again it is not hard to point out the available grounds for magnifying its value, if it happens to tell in our favour, and arguing that it is the only form of evidence that is truthful; or, on the other hand, for [1377a1] refuting it if it tells against us and for our opponent, when we may say what is true of torture of every kind alike, that people under its compulsion lie just as often, sometimes persistently refusing to tell the truth, sometimes recklessly making a [5] false charge in order to be let off sooner. We ought to be able to quote cases, familiar to the judges, in which this sort of thing has actually happened.

  In regard to oaths, a fourfold division can be made. A man may either both offer and accept an oath, or neither, or one without the other—that is, he may offer an oath but not accept one, or accept an oath but not offer one. There is also the [10] situation that arises when an oath has already been sworn either by himself or by his opponent.

  If you refuse to offer an oath, you may argue that men do not hesitate to perjure themselves; and that if your opponent does swear, you lose your money, whereas, if he does not, you think the judges will decide against him; and that the risk of an unfavourable verdict is preferable, since you trust the judges and do not trust him. [15]