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Aristotle's Institutionalism
RESEARCH MAY 2015
DOI: 10.13140/RG.2.1.1716.6240

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Clifford Angell Bates
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The Offices and the Institutional Character of Aristotles teaching on Regimes

In the next three chapters we will look at Aristotle examination of the functioning of the
offices within the regime. In Politics 4.4.1291a-38-b6, Aristotle mentions as part of a
political communitythe magisterial, deliberative and judging or adjudicative parts. Yet
there these offices where merely mentioned, it is only at the last three chapters of Politics
4 were Aristotle offers us a fuller examination of these three elements.
Politics 4.14 opens with the last transition in book 4. This transition will look at
the interior logic of the regime (politeia). Aristotle says Let us speak of what comes next
again both generally and separately for each regime, taking the beginning point that is
appropriate to it. (1297b35-37). And that beginning point is all regimes there are three
parts that seem to govern how it functions and works as a regime (1297b37-38). And
these three parts are the means by which the serious lawgiver (spoudaion nomotheten)
has as his tools to give body and concrete character to a regime (politeia) (1297b38).
Thus what we get here is the move to the institutions that are both made by the regime
and which give the regime both form and body.
Thus what particular institutions that are needed for a regime and how they are to
operate is what is meant when Aristotle says what serious lawgiver must attempt to
discern what is advantageous for each [specific regime] (1297b38). He continues on
this point by noting that:

As long as these are in a beautiful (kalon) condition, the regime is necessarily in a


beautiful (kalon) condition; and regimes necessarily differ from one another as a
result of differing in each of these parts (1297b39-40).
Thus these parts are the instruments that help give the regime its condition as well as the
instruments that carry out the actions of the regime both within the political community
and towards other political communities.
Now the three parts are do the following: 1) to deliberate about the common
matters, 2) the various offices needed by the regime and what each office ought to have
authority concerning and who should fill such offices and how they ought to be
selected, and 3) the part concerning adjudication (1297b40-1298a3). Now what we get
here is on one hand what looks like the division of labor within the regime for it to
function beautifully (kalon) which is not meant to be a concern about aesthetic but rather
the concern regarding the functioning well of the regime in a practical sensein terms of
ability to act in the world.
It is also interesting that Aristotle here, at Politics 4.14-16, switches the order of
the elements in that earlier Politics 4.4 where gives the list of the parts of the political
communityit is there he first mentions these three offices. And in that listing, the
offices or the magisterial element are mentioned prior to the deliberative element. Here
when he goes in more detail with these three elements, giving each its own chapterhe
starts with the deliberative, then goes on to address the offices. Now in both the
1291a38-b6 ordering and the treatment here at the end of Politics 4, the adjudicative
element is put last and stays in the same place.

But in the order of these three parts in 4.4.1291a38-b6 are not the first mentioning
of those partsin fact they are the second mentioning of those parts in Politics 4.4. In
fact it was the adjudicative or judging element is the first mentioned at Politics 4.4 where
Aristotle says If, then, one where to regard soul as more a part of an animal than body,
things of this sortthe military element and the element sharing in justice as it relates to
adjudication, and in addition the deliberative element, which is the work of political
understandingmust be regarded as more a part of a [political community] than things
relating to necessary needs (1291a24-29). Yet at 4.4.1291a34, a little after the above
passage, he returning to the listing of the part where he left off at 1291a23. Here he then
lists the well off as the seventh part (1291a34-35), then magisterial as the eight (1291a3539), then he mentions the deliberative and the adjudicative is this final list of parts of the
political community in the first half of Politics 4.4.
But what is the implication of switching the ordering of the discussion the
magisterial and the deliberative as he does here? It is perhaps the deliberative deals with
deciding and making decisions and that is at the heart of ruling and thus it must be at that
must be dealt with firstbecause all the other officesboth the magisterial and the
adjudicative flow out of the deliberative. I say they flow out of the deliberative because
they do decide but decide about more limited things that the deliberative element does
the deliberative element is to decide about the most import and key issues concerning the
regime. This is to say that the deliberative element deals with the whole of the regime,
whereas the magisterial and adjudicative deal with specific and narrower sets of
functions.

In attempting to grasp what Aristotle is doing here in this last section of Politics 4,
we need to realize this attempt to divide the nature of the given regime into its functional
part looks all to similar to and can get easily conflated with the very common yet modern
understanding of the division of powers. is the teaching about "the separation of
power" teaching in Montesquieu. Although Aristotle gives us the reader of the last three
chapters of Politics 4 his treatment of what he presents as the fundamental working parts
of any regimethe deliberative, magisterial (that is to say the offices) and judicial
functions. Yet Aristotles discussion here is NOT a teaching of separation of power as
one would see in either Montesquieu or the Publius of the Federalist Paper.
In Aristotle those distinctions are about the differing functions of a government.
Aristotle distinguishes between functions in a political entity -- this view as Martin
Diamond argues would allow for a political institution to possess one or more of the
functions. Whereas for Montesquieu and his student Publius, these functions are seen as
powers which for the sake of individual liberty must be separated, or else if these powers
be possessed by any one body and that body would possess absolute power. Thus the
separation of powers suggest that function are solely the source of one institution and not
another. Aristotle's discussion allows for the possibility that one political institution
could possess all three functions and not be tyrannical -- but be a good regime. It is
therefore assumed the distinction of "power" to these functions indicates a change and
hence deviation from Aristotle's teaching.
However, Montesquieu's teaching of "separation of powers" is put in a strict
historical context of how political institutions arose in England and France (etc.) and is
not a generic discussion of political institution like discussion as presented in Aristotle's

Politics IV (where the three functions are discussed). Montesquieu's discussion within a
particular course of historical development of political institutions -- legislatures,
executives and judges who exercise certain specific functions -- making laws, executing
laws and adjudicating disputes about laws -- is limited by the desire to preserve
"freedom" which the given political systems claim as their authoritative principle -- their
regime. Did not the historical experience of the European people show that when all
power was unified in the hands of the ruler of the nation state, it usually resulted in
despotism. Note that power was divided in the political system of the Middle Ages
between local authorities and larger Imperial authorities, as well as Church authorities of
differing levels. This was not the case in the classical system of the polis, in the polis
political authority was unified under a single political rule. The modern notion of
political centralization is similar to the political centrality of the ancients rather than of
the middle ages.
Montesquieu's teaching about "the separation of powers" is a lesson from
experience turned into a teaching of principle. But is it a real change from Aristotle's
teaching? I would argue that as the American Constitution shows, although we have a
"separation of powers" system following Montesquieu's teaching the separate powers
nevertheless exercise functions, in the Aristotelian sense, which would seem not to be
appropriate in a strict "separation of powers" view. Does not the Executive and Judicial
engage in deliberation as does the Legislature and Executive engage in adjudication, etc.
Although the powers are in fact separated creating a system of checks and balances, to
insure that no one single branch of government overpowers the others and create one
institution with all the powers (-- the definition of tyranny in The Federalist Papers--),

nevertheless deliberative, executive and adjudicative functions are possessed by all three
branches. What ultimately distinguishes them is what their institutional function
ultimately is and not what is required to achieve that function. In other words, what
distinguishes branches is their end ant not the means they use to achieve their ends. In
this light, Montesquieu's teaching about "the separation of powers" is similarly a teaching
about difference in ends rather than in means.
Let us return to Aristotle and his treatment of the factions of the regime here in
the last three chapters of Politics 4. In the remaining of chapter 14, Aristotle will focus
on the question of the deliberative part of the regime, the part that decides and thus rules.
Yet when we look at this treatment of the deliberative part we need to recall the earlier
treatment of the politeuma and how they interact with each other or if they needs must
do. Then Aristotle in chapter 15 will examine the offices and wrapping both this
examination of the functioning parts and Book 4 as a whole in his examination of the
adjudicative element.

Chapter 7
On Deliberative Element

What is the deliberative element? It is first mentioned in Politics 4.4.1291a27 where


Aristotle lists it with the other parts of the polisin fact he lists it 9th between the
magisterial offices and the adjudicative offices (4.4.1291a27-b6). Now as we return to
Politics 4.14 where Aristotle begins he more detailed examination of the deliberative
element we notice that unlike the Politics 4.4 ordering, the deliberative begins the
discussions of the offices, and the magisterial (chapter 15) and adjudicative (chapter 16)
offices follow the examination of the deliberative element.
So what is the deliberative element and what does it do? It is the part of the
regime that decides and makes decisions concerning the most important things that the
regime must address in its ruling or governing. Thus the deliberative body or part deals
with: 1) war; 2) peace; 3) alliances and their dissolution; 4) what judicial penalties that
merit death, exile or confiscation of ones property or ones and ones family means to
survive; and 5) the choosing and auditing of officials (1298a4-7). So clearly the
deliberative element is that which decides for the regime and for the political community
it shapes and governs.
For the power to decide is the power to path what choices the political community
will act on and what they choices they will not action on. Thus the deliberative part is
thus the choosing part of the regime. Now this ought to remind us that such a part would

be first and foremost found in the politeuma, the governing part of the regime (politiea).
And thus we are to recall the teaching regarding the politeuma in Politics 3.7.26-31,
where it seems to be synonymous with the regime (politeia). So when we are trying to
understand where does the deliberative element operate, it operates within the scope of
the politeuma, which is the part of the community that rules the regimethus the
members of the politeuma are composed of those who are indeed citizens, those sharing
in rule, in the regime. And within that body we find the deliberative element and how we
find it will differ from regime to regime, as each regime will be shaped by not only a
different sort of who are truly the citizens and which of those are to be truly to be
understood to be a part of the politeuma.

Varieties of Modes where All decide


Now returning the detailed examination of the deliberative element in 4.14, after defining
its scope and concernsto once again repeat them: war, peace, alliances and their
dissolution, what judicial penalties that merit death, exile or confiscation of ones
property or ones and ones family means to survive, and the choosing and auditing of
officials (1298a4-7)we now look at how it will be shaped or how it will function. Here
we see the scope of what kind of deliberation is dealt with by this part of the regime, but
that leads us to how it will be done and by whom. On this point Aristotle says:
It is necessary either that all these sorts of decision be assigned to all the citizens,
that all be assigned to some of the citizens (for example, by assigning all to one
particular office or several, or some to some and some to others), or that some of
them be assigned to all of the citizens and others to some (1298a7-9).

Thus those five functions above are to be divided up by these three modes: 1) By having
all those decisions to be made by all those who are held to be citizens in the regime and
have an active share in ruling. 2) By assigning this decision function to some number of
those who are citizensthis is what we call representative government as those who are
chosen and again this can be arranged where (a) one office is created and all those who
are chosen are members of it or (b) create several offices where some are put on one and
others another. And lastly the division of some of the 5 functions be assigned to all the
citizens together and others of the functions to be delegated to an office composed of one
or few citizens to decide (1298a9)
Now Aristotle makes a very important point here, when he says [n]ow that all
decide concerning all is characteristically popular; for the people seek this sort of
equality (1298a10-11). Thus the view where all must decide on all things is the view
inclined by the demos, the people as well as those whom are inclined towards the
democratic regime. The view that many being equal, all should rule together, else if rule
is divided or given over to a few or to one, the demos hold leads to the rule of those
people who decide and not what the people collectively would decide. Hence the popular
view of Aristotle time was suspicious of representational offices in that such offices give
power to a few and the rule by a few is often held by oligarchic in character.
Yet, some oligarchic regimes do have a form where all the citizens, that is all the
oligarchs, all decide together. So what is being talked here is not simply the democratic
principle that all should vote, but rather the view that all who are citizens of the regime
(and who is a citizen in one style of regime may not be a citizen in another) ought to
equally share in ruling. Thus, the view, that all who are citizens ought to collectively

decide, is very much the line of argument of those who champion participatory
democracy. But again those who desire such participatory democratic also seek to expand
who is a citizen, and thus who really truly has a vote in the decision, to the widest
possible number.
From grasping the meaning of how the principle that all decide concerning all
things is democratic in principle, we have to turn to the differing ways this way of
deciding is to be carried out. He points out that there are several modes in which all
decide (1298a12). By this Aristotle is pointing to ways by which all can come to
decide. Thus he seems to be pointing to the modes by which all citizens can be
engaged in the collective decision process. About this Aristotle says that there are four
modes of having all decide. The first mode is to have the citizens each rule by turns
(1298a13-14). The example he gives for such a procedure is the regime of Telecles of
Miletus (1298ab14).
Now regarding this regime of Telecles nothing is know about this regime, so the
reference that Aristotle gives has not surivied from his time to offer us now any clue to
what is meant by this ruling in turn. So the example of Telecles is rather useless for us in
order to understand what he is talking about. From what is presented in the text, to rule in
turn would be a way one person rules for a day. This assumes the one selected to rule
would be replaced by someone to rule the text day, assuming daily turns. We see
something like this process in the Presidency of the EU where the country hosting the
Presidency goes in turns among the member-states, each holding it for a 6 month period.
Adding to this form of ruling by turns after mentioning the example of Telecles,
Aristotle notes the following as a variety of this given mode:

and there are other regimes in which deliberation is carried out by officials
meeting jointly, with all entering office by turns from the tribes and the smallest
parts of the city until all have been gone through, and they meet [all together] only
concerning legislation or matters affecting the regime, or to listen to
announcements by the officials (1298a15-20).
Thus in this mode they (all the citizens) will each enter office in turns from one group to
another (as is done in Athens) or by some mode by which they divide themselves, until
all the citizens have held a turn, then they go about again and againonly meeting
together either to address the most significant regime effecting matters (which ought to
be rare) or to hear announcements by other official within the regime. About this
particular mode of arranging the deliberative element, Carnes Lord notes: The practice
of governing through joint official boards (synarchiai) seems to have become fairly
common by Aristotles day. The smallest parts referred to here would seem to be
political subdivisions of the type of the quarters (dmoi) of Athens (Lord 2013,
121n53).
Regarding the next mode, it is when all the citizens decide together but meet only
with a view of limited number of concerns (for example1) choosing officials, 2)
making laws or passing legislation, 3) dealing with issues of war and peace, and 4)
conducting audits) yet regarding other matters deliberation is carried out through offices
arranged to deal with each sort of thing, and the offices are chosen from all by election or
by lot (1298a19-24). Aristotle here gives us no examples here and what he says here
seems rather clear. What is interesting about those offices to whom decisions about those
other matters (other than the just mentioned four concerns) is now to be delegated are

either to be selected by an election where the citizens vote out of all of their fellow
citizens whom should hold what office or by lot.
Now of these two ways of selection election by lot seems to be the most efficient
then election by voters casting ballots for whom they want if the number of citizens is
rather large. One need to remember Condorcets Paradox and other issues of the
mechanism of majority decision making which points to the fact as the number of people
voting and the number of possible choices is not somehow severely limited the likelihood
of getting a majority winner significantly decreases with the amount of voters and of
choices (Shepsle 2010, 53-89). But in smaller communities, when actual people picking
whom they want is less difficult than in large population communities, so these two
methods of election remain.
The next mode of all ruling is when the citizens get together in connection
with offices and audits and to deliberate about war and peace and about alliances, while
other matters are administered by offices that are chosen by election to the extent possible
[rather than by lot] those in which it is necessary to have knowledgeable persons
ruling (1298a24-28). Thus although citizen gather or assemble to deliberate matters 1)
involving offices within the regime, 2) audits of those offices, and 3) to deliberate about
war and peace and things regarding alliances. As for other matters they are to be
administered by others. But here the mode of selection is one where the preference is for
election of people, where you choose the person and the reason for this is to choose the
best person. Now election by lot is still an option, but its for this mode its the least
preferable because the reason why one is selecting officers here is there is some specific
knowledge involved in ruling or performing the given function (1298a28-29).

The forth mode of all ruling is said to echo the last form of democracy
mentioned in Politics 4.4. and 4.6. This forth mode, Aristotle says:
is when all meet to deliberate on all matters, while the offices decide on nothing
but merely make preliminary decisions. This is the mode in which the final sort of
democracy the sort that we assert bears comparison with dynastic oligarchy and
tyrannical monarchy administers itself now (1298a29-33).
Here this mode by which all are involved in the acting of deciding is both the most
radically democratic and tyrannical in character and habit. But we need to remember
what Aristotle said about this form of democracy at Politics 4.4.1292a4-37 and later at
Politics 4.6.1293a1-11 where the real cause of its rule being akin in character and habit to
tyranny is that the rulers are not to be bound by the law but by their desires, that they rule
by decree and the law is what ever they decree it to be. Also in that last democracy at
Politics 4.4.1292a4-37 and later at Politics 4.6.1293a1-11 the rise of demagogues are
explicitly remarked on that enflame the rulers (the many in the assemblys) passions and
desires and they not being bound by law succumb to the flattery and suggestions of the
oligarchs. Now this can be for good or ill, but usually the trend is for the ill more than
the betterits a matter of the chance nature and character of the demagogue. If the
demagogue has a bad nature or character things will most likely end badly. But even if
the nature and character of the demagogue is noble and good, the outcome could also
likewise turn badechoing that famous line about the path to hell being covered with
great intentions.
Thus the last mode of where all decide leaves us relooking at what came earlier
and see that if this one is the form that is also the one found in the most tyrannical of the

varieties of democratic regime, what about the others. There seems to be an implicit
assumption that this form being associated with ill rule, is perhaps less choiceworthy than
the other three modes discussed earlier. But what about those earlier forms we have little
to see what and how they are merited, except the 1st mode in its larger form is said to be
more common when Aristotle is writing (Lord 2013, 121n53). Other than that we have
little to choose one of the top three being more choiceworthy than the others.
Now again Aristotle make it clear that the principle of all decidingis
implicitly democratic in its character. If the democratic principle is when all should
decide, then the principle that some ought to decide in all matters is held to be
oligarchic (1298a34). So from the earlier mode of four seem to address democratic
modes, here we now are to be given oligarchic modes. And we must remember that in
oligarchies what is the principle is not so much some or few rule, but that the rich or
those with means (poroi) rule. So the mode of selection who not only can vote but also
who is eligible to decide is based on an assessment of their means (poroi) or wealth. In
oligarchies, its those whom have means or wealth who are understood to be the citizens,
that is those who rule.
Again we must clearly understand that what Aristotle means by the citizen is
different than most understand citizenship today. Today citizenship is understood more
as a status of being a member of a community. Thus citizenship is understood as
something like nationality, the place where one is from and under whose laws one is
governed by. Most of our contemporary understanding of citizenship conflates it with
being a subject that is being a subject to a system of laws or rules. For Aristotle there
was a clear distinction between being a subject and a citizen, in that a citizen is one who

shares in rule of the community. Thus to be a citizen is to rule, to govern, either directly
or indirectly. Whereas being a subject means one is governed by and ruled by others. So
when we are talking about deliberating here, who is deliberating are only the citizens and
only the citizens.
So the previous account of the mode of deliberating where all decidewhose
character and principle is said to be democraticcould be operative either in a
democracy or an oligarchy. That is to say that if the regime is only rich and only the rich
are citizens, then even if they all decide and deliberate in any of the four mode mention
above, the regime would be an oligarchy whose mode of deliberating was democratic in
principle.

From the varieties of Modes where all decide to those where some decide
As move to examination of what comes next where after examining the modes where all
decide Aristotle turns to the modes where some or few decide. In the text Aristotle
says [a]ll these modes, then , are democratic, while having some decide in all matters is
oligarchic (1298a34) and offers the transition from the form where all decide to the
form where some decide. And where the former was seen to be democratic in
character, the latter is seen to be oligarchic. But again we need to remember these form
of some deciding is not nor will not be exclusive to the deliberative element of only
oligarchic regimethere can be a democratic regime where the organizational form of
the deliberative element is set to where some not all decide and that regime would still
be democraticalthough that particular form of the deliberative element would be at
odds with the democratic inclination (which as was said above favors all deciding).

Like the first set of modes where all decided, these sets of modes are likewise
four in number, something we find out only after the presentation of the different modes.
In fact what Aristotle says about the varieties of mode of some deciding is that [it] too
has several varieties (1298a35). Now this is similar to what occurred in the
presentation of the modes for all deciding, we find out there are four forms at the end
where the fourth form is addressed. But before we can contrast the two presentations we
need to present the ways the form of some rule are.
The first mode, Aristotle says is [w]here they are elected on the basis of
moderate assessments and are numerous because of the moderateness of the assessment,
where they do not attempt change in matters where the laws forbid it but instead follow
the laws, and where it is open to anyone possessing the assessment to take part in
deliberation, such an oligarchy is, by the fact of its moderateness, a political one
(1298a35-40).1 Notice what begins as an explanation of the particular mode by which
some will come to decide ends up labeling this practice as creating a very moderate
oligarchy where its form will be more political (which I understand to mean to be
governing for the benefit of the community, not merely part and thus rule over unwilling
peoples and thus having to rely on force to maintain oneself) of in character than
despotic. But lets focus on the form of the mode before focusing on the direction the
1

Here I prefer the understanding of the 1298a38-40 text of Peter Simpson (Simpson

1997, 198) and Lords earlier (Lord 1984, 140) than that of Lords second (Lord 2013,
121), where he raises the specter of polity in this passage. The Greek reads oligarchia
men politike de estin he toiaute dia to metriachein; so to translate politike as if it were
politeia is a bit of imposing one interpretation upon the translation.

mode pushes the regime. Here the some who decide will be chosen on the basis of an
assessment of their wealth and/or means (poroi) which is set low and it is set by a law
which is not to be changed. Thus to change the law would be thus to change the regime
and so here is a case where a particular mode of shaping the deliberative element seems
to determine a particular form of regimea moderate oligarchic one. But we need to
recall slightly that the second democracy of Politics 4.4 and the first democracy of
Politics 4.6 also had assessments to them and would not such a principle be also true for
that form of democracy? So what appears to be only for an oligarchic regime also might
be suitable for a particular form of democracy where low assessments determine who is a
citizen and who is not.
Let us now turn to the next modewhich is where the ones who decide will be
elected or chosen. Now what he says is When all do not take part in deliberation but
only those elected to do so, and they rule in accordance with law, it is oligarchic as
before (1298b1-2) Here we are told that if the deliberative body is are to be some not all
of the citizens whom are chosen or elected by their fellow citizens and rule according
under the law such a mode is oligarchic in form. Now this suggest that the mode of
selectionthat is election or voting to choose this one rather than that citizenis that
what makes this mode oligarchic in character. The view is to elect by lot is the truly
democratic principle because since all are equal it does not really matter that one is
chosen over the other, but to chose one over the other has an implication that one chosen
is more choiceworthy and thus better than the others not-chosenand such implies an
inequality that the one who chooses notices in one but is absent or missing in the other
who is not chosen.

The third mode is that of dynastic selection, where the ones who hold the office of
deciding choose themselves and where son succeeds father in holding the office (1298b24). Now Aristotle here says this arrangement is also oligarchic (1298b4-5). But notice
the principle here is dynastic succession where the ones (or perhaps one) deciding
chooses themselves and passes on the power to decide for the regime and the political
community on to their children. Now the mode of operation and not the number who is
doing the deciding is the issue and as such why is this more oligarchic than monarchial.
In fact when the examination of dynastic succession arising in oligarchies are addressed
in Politics 4.5.1292b5-11 and 4.6.1293a26-34 where such succession is a characteristic of
monarchic rule and the last form, where the rule of law is abandoned, is said to be
tyrannical in character. But this third mode actually is two separate modes in that one
question is the self-election of those who hold officethat is those who have the
authority over such deliberations choose who will hold their office nextand the process
of dynastic replacement are two separate modes.
As we turn turning to another mode, Aristotle here raises a 'but' to what was just
said about the form of dynastic succession. Now what is presented here as a 'but' offers a
different version of the issue of the means by which the "some who are to decide" are to
be chosen or appointed. Aristotle writes:
But when some have authority in some matters [and all in some]for example,
when all have it concerning war and peace and audits, and officials in other
matters, these being chosen either by election or by lotit is aristocracy or a
regime. If persons chosen by election have authority in some matters and persons

chosen by lot in others, with those chosen by lot being chosen either simply [from
all] or from a preselected group, or if persons chosen by election and by lot have
authority in common, these are features on the one hand of an aristocratic regime,
and on the other of a regime (1298b5-12)
So what we get here is a mixed picture where the various matters of deliberation are
divided up and some of these matters are to be decided by people who have been either
chosen by lot and others issues by those elected by those who can vote. Now this
particular mode is either aristocratic or like the rule of a regimewhere as when
election is the method of selection is held to be aristocratic in character and where lot is
the method it is held to be like a regime.2 The next dimension of this mixed mode, is the
group of those whom are chosen. If they are chosen from all the citizenssuch a
decision would have the character of a regime. And if they are to be selected from a preselected group, such implies that not all are equally meriting selection or being chosen
and thus have an aristocratic character.
.

This last mode is a very complex mode of dividing the authority to decide on

issues into distinct bodies that have responsibility for different matters actually offers
four outcomes: 1) some from all elected by vote, some from all by lot; 2) some elected
from a list of selected individuals, some chosen by lot from a list of selected individuals;
2

I will not here deal with the general issue of the regime form called regime, I deal with

that in chapter 7. By the regime like rule in contradistinction to aristocratic rule, I take to
mean that regime-like rule is to rule people politically, that is by ruling and being ruled in
term and hence treating people generally equally, whereas to rule aristocratically is that
he best would rule over the lest best and such is the rule by unequals.

3) some from all elected by vote and some chosen by lot from a list of selected
individuals; And 4) some elected from a list of selected individuals, some chosen from all
by lot. So if you add these four possible out come to the earlier modes of some
deciding you have eight different varieties in the mode of selecting some to have
authority such matters. So if one were to give the list here it would look like this:

Modes of some deciding

Modes of all deciding


1.
2.

All ruling by turns


Where Fundamental issues are
dealt with by all, on other less key
issues they are deal specific offices
established to deal with it, who are
(a) chosen by lot
(b) elected by vote

3. Like Above, but for the most part


the lesser or more technical
decisions to made by offices that
for the most part elected.
4. The Four Mode:
All decide about everything together,
where the offices are there to make
preparations and preliminary
decisions

1.

Open to all who meet the low assesment set by law unchangeable.

2.

Few are elected (chosen) to decide

3.

Those who are the in the offices that


have the power to decide choose
who next hold office.

4.

When sons replace fatherin


dynastic fashion

5.

Mixed Variation
(a) some from all elected by vote,
some from all by lot
(b) some elected from a list of selected
individuals, some chosen by lot
from a list of selected individuals
(c) some from all elected by vote and
some chosen by lot from a list of
selected individuals
(d) some elected from a list of
selected individuals, some chosen
from all by lot

Now Aristotle end his presentation of the modes of both the decision by all and
decision by some. Wrapping up the presentation of the modes of the deliberative
element Aristotle writes [t]he deliberative element is distinguished in relation to the
regimes in this manner, then, and each regime administers matters in accordance with the

definition mentioned (1298b12-13). This is to say that each regime will choose the
mode that best suits the regime. Thus modes that have oligarchic forms and those that
have democratic forms will be suited to the regime in connection what it wants. If the
democratic regime seeks to make itself more democratic it will choose the forth mode of
deliberation of all deciding, whereas a more moderate democratic regime would not.
What is very interesting here is how the modes of arranging the deliberative
element mirror or echo the variations within the presentation of democratic and oligarchic
regime in Politics 4.4-4.6. You see this with the forth mode for all deciding echoing
the last democracy of both Politics 4.4 and 4.6, and the 4th mode of some deciding
echoing the forth form of Oligarchy in Politics 4.5 and 4.6. And the remainder of 4.13
will look at the way the different regimes shape and order its choice of modes for the
deliberative body within their given regime. He will first turn to democratic regimes then
later to other regimes on how to use these various modes of the deliberative element to
shape the direction one would like move the regime towards. This is to say, some
choices of modes will allow a regime to rule better and choices of other modes may lead
to the regime working less well or radicalizing and creating the means by which
revolution or regime change will occur.
He first turns to the last democracy of Politics 4.4 and 4.6, on how you order the
rules regarding attendance in attending the deliberative body where all will decide. He
notes:
In the sort of democracy which is now most particularly held to be democracy (I
mean, the sort in which the people has authority even over the laws), it is
advantageous with a view to deliberating better to do the same thing that is done

in regard to the courts in oligarchies. For they arrange to fine for nonattendance
those they want to have adjudicate to ensure that they do adjudicate, while the
popular sort provide pay for the poor. This should be done in regard to
assemblies as well. For all will deliberate better when they do so in common
the people with the notables and these with the multitude. (1298a13-21).
Thus by penalizing those whom one would want to participate but they have better things
to do, this balancing make the deliberative element more closely similar to the balance of
the people in the regime. If the wealthy opt out, they will be under-represented in the
decision process and that will lead to unbalanced choices. So such a law penalizing those
who fail to go to the deliberations moderates the regime, where as without such a law
whose character is similar to the practices of the courts in oligarchies as Aristotle
mentionsthe radicalizes as the decisions more and more are at the advantage of the
poor and often at the expense of the others (be they the rich, the better off, the wiser, etc).
The general tendency in such regime is not to fine non-attendance but rather
paying the poor to attend. Now this policy, favored by democrats, and is popular by the
poor who now see attending the assembly as a way to survive and a means to live rather
than by hard labor for others. The danger here is the wealthy and the better off who have
better things and the pay one gets hardly covers the cost of what would be lost to them if
they attended rather than attended to their own affairsleading to the poor having an
incentive to attend where as the rich and well off a disincentive. So this moderating this
mode by the law about fine or pay leads to different consequences.
Aristotle not addresses the issues of proportions of each group within the political
community and the need to balance their interests in the deliberative body if the city is to

be well governed in the eyes of all parties. The need for balance occurs not only within
groups but even from the different locations and areas within the community as well. To
have more from one part or area and less from another might lead to disproportionally,
which Aristotle will discuss in Politics 5, which can lead to the rise of factional conflict.
On this issues Aristotle says:
It is also advantageous if those who deliberate are chosen by election or by lot in
equal numbers from the parts of the city; and where the popular sort among the
citizens greatly exceed the notables in number, it is advantageous too either not to
provide pay for all but only for as many as will balance the multitude of notables,
or else to exclude the excess by lot [from participating] (1298b21-26).
What is especially interesting is to contract what Aristotle says above with what thinkers
like Hegel, Tocqueville and John Stuart Mill about the need for proportional
representation in deliberative bodies if there is to be true representation within them.
Such policies are for Mill and Hegel a matter of principle, whereas for Aristotle a matter
of prudence and what one is trying to do regarding the given regime. If proportionality
leads to better governing then such moves would make sense. But if they dont, rather
they lead to other pathologies, such as too great control by elites or the notables, this
might lead to the regime changing from one form to another either by incremental
practice or by revolutionary reaction by grieved parties by this trend.
After dealing with this example from democracies, he now turns his attention to
examples that arise from oligarchic regimes. Aristotle says
In oligarchies it is advantageous either to elect additionally certain persons from
the multitude to serve as officials, or to establish an official board of the sort that

exists in some regimes, made up of those they call preliminary councillors or


law guardians, and to [have a popular assembly that will] take up only that
business which is considered in the preliminary council; for in this way the people
will share in deliberating but will not be able to overturn anything connected to
the regime (1298b27-33.)
What Aristotle raises here is the giving certain body, who will be composed of the
people, the multitude the ability to have a say but not overturn the regime. Here one
thinks of the Roman practice in the Republic of the people tributesto whom the people
could appeal if they thought the Consuls or the Senate was being too harsh or acting
unfairly toward the peoples interests. Thus it gives the many a voice and some ability to
influence or have input into decisions, but not power to do things that would harm or
change the regime.
On this line of thinking about how oligarchic regime can shape the nature or make
up of the deliberating element so as the regime will work better. Aristotle writes,
Further, it is advantageous to have the people vote on measures which are either
the same as those brought before them [by a preliminary council] or not contrary
to them, or to allow all to advise but the officials to deliberate. Here the opposite
of what occurs in regimes should be done: the multitude should be given authority
to veto measures but not to pass their own, these being referred to the officials
(1298b33-39).
Aristotle thus suggests the multitude have some level of input on measures, but what
should happen is they should be allowed to give input that will advise but then allow the
official(s) to decide. Thus what is important is the ability of the many in such a regime to

have means to advise those who are deciding and feel that their advice was taken
seriously by those making the decision. To do as the regimes, especially the popular
regimes do, that is to give the desired group a veto would be rather problematic in such
an oligarchic forms of regime.
Now turning to the practice of regimes (especially popular ones) where the many
usually are the rulers. In order to give the few or a minority some power, they arrange
that the few have authority to veto measures but not to pass them; measures of the latter
sort are always referred to the many (1298b39-40). Here the practice of this regime is to
give a veto to the well off or rich, not merely giving them a voiceas they already have a
voice, but their smaller size within the regime makes their voice less effect against the
interest and superior number of the multitude. Thus what is suitable to regimes
(especially popular ones) is opposite to what is suited to oligarchic regimes in this case.3
With wrapping up this point, Aristotle ends his discussion of the deliberative
element. He ends this chapter saying by addressing the question of deciding or
deliberating, he was also addressing the question of ruling and being authoritative in the
regime (1299a1). For Aristotle the deliberative is the ruling part or the part that is
authoritative within the given regime. Again we need to realize the source of authority in
Aristotle here is the power of deciding and that is tied to judging wellwhich is
understood as the use of reason appropriate for such thingphronesis, or from the Latin
3

Now if the polity view of this use of politeia in this passage would be correct, such

contradiction between the so-called polity and the oligarchy on this matter would be
contra to teaching that so-called polity is a mixture of democracy and oligarchy as some
hold. For my discussion on this debate about so-polity see chapter 7.

term, prudence. Again in few contract the discussion of deliberation to what Modern
political thought has in substitution of deliberationlegislation. This does not mean
there is no legislation in Aristotle, but rather the Modern thinkers from Hobbes, Locke,
Rousseau, Kant and Hegel on stress the centrality and import of legislation. Again, this
occurs because the emphasis of the modern on the will rather than reasonand
deliberation is very much concerned with reasoning well.

Chapter 8
On the Offices

As we move to from our examination of the deliberative element, we not turn to chapter
4.15 whose focus on the offices within the regime and their variety and differences.
Aristotle notes that this part of the regime also involves many differences (1299a3) that
like the different modes that the deliberative element too shape, the offices likewise will
vary and how they vary will both is shaped and shapes the given regime. This is to say
that the variety and shape that the offices take and the variety of their scope will
necessarily differ from regime to regime.

In an attempt to examine the offices and their function within a regime, Aristotle
seems to have raises five question (1299a3-13):
1. [H]ow many offices are there?
2. What do they have authority concerning?
3. The length of time of each offices term.
4. Should the office be permanent, for a long duration or temporary?
5. Who should be selected for an office, who should do the selecting, and how
should they be selected?

Aristotle says from those five questions one should be able to distinguish how many
modes can exist, and then fit the sorts of offices to the sorts of regimes for which they are
advantageous (1299a13-14).
Aristotle says that in a political community there is a need for many
functionaries and not all of these functionaries (who many chosen by election or lot)
ought to be understood to be as official of the regime (1299a15-7). This is why
Aristotle says it is not easy to know which office should be called an office (1299a15).
He gives the example of priests, which he says must be something apart from the
political offices as well as equippers and heralds, and also envoys, [whom] are [also]
chosen by election but these are not to be seen as official with authority within the
regime (1299a17-20). Regarding how one ought to distinguish the offices Aristotle gives
us this division:
Of the sorts of supervision some are political, and are either over all of the
citizens with a view to a certain action (as, for example, a general is over them
when they are campaigning) or over a part (for example, the manager of women
or the manager of children); some are related to management of the household
(for they often elect grain measurers); and some are servile, and of such a
character that cities that are well off arrange to have slaves do them (1299a19-25).
So here we have a nice sorting system to divide the different type of functionaries
within a political community to distinguish them from one another by their function and
what that function is regarding. We can divide between those functions that are Political
and sub-political in that the political ones deal with the community (or a part of it) as a
whole, whereas the sub-political deals with those functions that likewise occur within the

household (oikos) as well and those that are servile (like care of the trash or waste, etc).
Of the political functions, which have concern for a specific action or concern for the
political community, these are to be divided between those that have authority over all
the citizens (such a general in campaign) or a part or class of the citizens (such as the
manager of women or the manager of children). Of the sub-political the division is
between those that deal with the household (oikos) and those that are servile.
After this discussion over what are truly offices and are not, Aristotle now gives
us a general rule. He says:
Simply speaking, those should be most particularly spoken of as offices to which
are assigned both deliberation and judgment concerning certain matters and
command, but most particularly the latter, for command is more characteristic of
ruling. But these things make almost no difference with a view to use, as no
judgment has ever been handed down to anyone disputing over the term, though
there is room for some further treatment of them in thought (1299a25-31).
Thus what simply distinguishes what is truly an office from mere functionaries is
that offices commandthat they exercise the authority to rule and to act for the political
community and on behalf of it.
But notice here the offices that command are assigned both deliberation and
judgment concerning certain matters (1299a27). So what would distinguish the
offices from the deliberating element that was addressed in the Politics 4.14, is that
the latter deliberate and exercise judgment concerning what generally ought to be done
and about questions that effect the nature and direction of the regime itself, were as to
the officestheir exercise of deliberation and judgment is limited in scope and

concern. Thus the offices are thus subordinated to the deliberating element of the regime
in that the latter exercises the greatest authority and power than the former. The power
and function of the offices are usually shaped by the deliberating element of the regime.
Now yes, the offices exercise deliberation and judgment but such exercise is limited to
what the function of the office and what it is concerned with.
In modern political thought, when speaking about the offices or the magistrates
within a regime, this is referred to as the executive. And the executive is one who
executes or carries out deliberated decisions. Now Aristotle does not explicitly address
what modern political thought calls executive power, but he does speak of commanding
and ruling. And thus this discussion of the offices shows the commanding and ruling that
deals with exercising certain functions for the regime.

What Sort and How Many?


After dealing with the question what is the proper concern of the offices one would
assume that Aristotle would start flushing out the five questions regarding the offices he
started his examination of them with. And at first glance this is what looks what comes
next, but looking closely at what he does he breaks with the initial order he gives the
questions regarding the offices. Instead he goes to say [w]hich sort and how many
offices are necessary for a city to exist, and what sort are not necessary but rather useful
with a view to a serious (spoudaian) regime, are questions one can raise in relation to
every regime, but especially in the case of small cities (1299a32-35). Thus the kind of
offices and their number are to be dealt with together not separately as the initial listing at
4.15.1299a5-6, but instead raised in connection between 1) the issue of what is necessary

for a political community to exist and what is useful for that political community to
have serious regime and 2) the size of the political community. The first suggest that
there is a difference between what is necessary for the political community to exist and
what is useful for it to have a serious regime. Now the latter points to what must be
and the latter points to what is advantageous to be. Thus one could still have a political
community without the latter, but not without the former.
Before turning to the question of size, let me address an interesting point. Notice
here that Aristotle does not speak about the good regime but the serious (spoudaian)
regime. This echoes very much the discussion found in Politics 3.4 where Aristotle
discusses the differences the good man vs the good citizenwhere he shifts between not
only the good agathos but also the serious spoudaios man and citizen (see Bates
2003, 40-46). Now in the Politics 3.4 text serious was used over good (agathos or kalos)
because the connection of the citizen to the type of regime and the differences of regimes
would lead to differences regarding what would be expected of a citizen within that
regime. The serious citizen was the one who best approximated that regimes
understanding of what is just and goodthat regimes understanding of artevirtue or
excellence. And thus avoid suggesting the relativity of the good and virtue or excellence,
Aristotle choose to use serious rather than good. Thus its use here at Politics 3.15 suggest
the regime here is not to be confused with the best regime or the regime that is simply

good (agathon) but rather regimes that are serious about ruling well and not only
surviving but flourishing.4
Now let us address the other issue raised by the concern for size of the given
political community and how this affects the sort and numbers of offices that are either
necessary or useful. Now initially he says this concern is one especially so for small
political communities (1299a35). But now that he gets into the discussion he first talks
about large ones.
Regarding large political communities he says that they can and should arrange
to have a single office to handle a single task: because there are many citizens, many
persons can take up office, the offices being held after a long interval or only once, and
each sort of task is better done when the care (or supervision) of it is handled as a single
matter rather than together with many other matters (1299a35-40). Notice that large
political communities are both able to and ought to assign a single task to a single office
because they have enough persons to spread about and take on such concerns. Also, in
large political communities, he suggest it is possible that offices can be held after a long
interval or only once is very much tied to the amount of citizens who are eligible to take
up the task of such an office there are within the community. If there are large number of
people capable of dealing with that task then rotating them and limiting holding that
office once per person makes sense. If such is not the case then allowing those who are
capable of holding office for a long interval would make sense.
4

Thus to be serious is to take seriously what is the meaning of Eu Prattomenthe last

word in Platos Republicwhich both means both being or fairing well (eu) and doing
well (eu).

Now in regard dividing offices to deal with single tasks rather than bundling tasks
together, here again the size of the number of citizens who are able to address such tasks
effect the choice to assign separate tasks to separate offices or to bundle tasks together.
Hence the ability to engage in the division of labor in such tasks becomes not only
possible but necessarily if the regime is to function well. But the ability to divide the
tasks about is very much tied whether or not one has enough capable citizens to hold such
offices or not. If one has enough citizens with the necessary skills or abilities to perform
the given tasks then one both can engage in such a political division of labor. But when
there is a dearth of talented or skilled citizens then your choices are likewise limited. We
will see this more clearly when Aristotle will discuss small political communities.
Regarding small political communities, Aristotle notes that many offices are
given to a smaller number of people (1299b1-2). Given that smaller communities will
have much fewer people in them than larger one, thus the amount of people with the
necessary skills and abilities to execute the necessary tasks for the political community
tend to be much more limited. Aristotle says,
Because of the lack of manpower it is not easy to have many persons in the
offices, for if this were the case, who will be those who succeed them? Sometimes
small cities need the same offices and laws as large ones; but the latter need them
often, while the former do only at long intervals. Hence, there is nothing to
prevent small cities from mandating that they supervise many things at once
(1299a2-8).
The lack of people able to fill the jobs is simply not there, so either you let the ones who
can do, do. And given the fact that those who can do different are often the same group

of peoplethat is to say people with skills are more likely have other skills that are
needed as well that others in the community dont have. And because of this, Aristotle
says, that those who have the skills to do the tasks will not interfere with one another
(1299b8). This is to say they will too much to do and too few people who can do it, so
most of these will not be interesting in seeking to do more and thus leave other tasks to
other people.
Also he notes that in such small political communities that account of the lack of
manpower it is necessary for them to make their boards of officials like spit-lamps
(1299b8-10). Now the example Aristotle gives needs some explanation. The term
obeliskoluchnia means a spit used as a lamp holder. Joe Sachs notes that this item is a
roasting-spit made to double as a lamp-stand, for use on military campaigns (Sachs
2012, 132n132. Carnes Lord says the term implies this item is an item with a dual
purpose (Lord 2013, 124n56). Yet, Sachs suggest that the dual purpose does to echo
the example of the Delphic knife mentioned at 1252b2, [which is] an all-purpose
implement for carving, but something designed to combine two unrelated functions
(Sachs 2012, 132n132). So in smaller political communities given the smaller size of the
pool of skilled people and their range of combined skill sets you might have offices being
assigned tasks of unrelated functions given the skill set of the people holding the office.
So the amount of people with the necessary (and also useful) skills that one has
within a given political community will very much determine the question of how many
offices are needed and what things do offices deal with. He shows this when Aristotle
says [i]f, we are able to say how many offices necessarily belong to every [political
community] and how many [offices] are not necessary but ought to be there, the one who

knew this could more easily combine into a single office the sort of official functions it is
fitting to combine(1299b10-14).5 What Aristotle seems to suggest that having this
ability is much more needed in shaping the offices for a regime of a small political
community than a larger onein that given the lack of people with the needed skill and
the overlap of skills in people with the needed given skills the overlapping of functions to
offices is much more difficult a question than for larger political communities with large
pool of skilled individuals.
But would this skill also be needed in a large political community but where the
pools of people with the required skills were very small and those persons with the
necessary skills often had other needed skills that others lacked? So the ability to know
what function ought to be combined with what office is not only true regarding small
communities, but also in communities that knowledge is not widely dispersed among the
citizen population.
While dealing with this issue Aristotle brings our attention to something that is
fitting not to neglect, which is knowledge of what sort of matters should be supervised
by many boards on a local basis and over what sort a single office should everywhere
have authority (1299b15-16). He suggest that some issues or matters ought to be
supervised by a number of official bodies on the local basisthat is close to where the
matter needs to be addressed. Others should have one official supervising that issue
through the political community. Thus some issues and concerns are uniform throughout
and general for the given political community and thus can be and ought to be under the
5

On this passage I found Sachs 2012, 132-133 both more on target and clearer than Lord

2013, 124.

care of one office or responsible body. Whereas, other concerns or functions are so tied
to local situations and those conditions will vary in different areas or localities within a
given political community that to assign it to one office or responsible body would make
it more difficult for that office to work well. Now the examples he gives hit this point
homethat market-managers ought to have authority over a specific market would very
much depend on the nature of the given market in question (1299b17). Different types of
markets, different market managersfor the not people have the same level of
knowledge regarding all kinds of good. Thus markets of different kinds of goods need
market managers who are knowledgeable about those goods and their value.
Now the reason why jurisdictions of offices need to be taken account is very
much tied to whether arrangement of offices to the matters they are tasked to address is
orderliness or in good order, or not. This is to say making sure the offices are not only
rightly tasked but the tasking is done in such a way that the effectiveness of the
arrangement is highlighted. If the market is very large, it would be rather difficult for a
single official to effectively supervise italso even if the given office might be
composed of more than one official, again the size of the community and the amount of
activities being done by that community will effect this question greatly.
So to summarize up to now this discussion not only do we need to know 1) what
offices are needed. But 2) which function can be incorporated with another function in a
given office. Yet it is also needful to know 3) are the given concern or task something of
local specific or universal and generally uniformits scope of authority or jurisdiction.
But now, Aristotle raises another questionwhether one should distinguish offices on
the basis of their activity or of the human beings they supervise (1299b18-19). Or in

other words, should the offices be distinguished between what is being supervised or who
is supervised. Aristotle then attempts to clarify this point by raising the question of
educationshould there be one office addressing education throughout the regime or
should there be a separate office for education of women, and another office for the
education of children? Now this again deals with the question of orderliness or
effectiveness. What would be more effective would also be dependant how many
persons with suitable knowledge were available to fill such postif very few then one is
kind of limited with how one can arrange such an office. But if you have a much larger
pool of talented candidates then things can be arranged more effectively and allow more
care for specialization of focus or the part of the community being assigned to cover.

Regime Specificity
The next concern is regarding the offices and the question of the regime. Now he asks
whether the difference in the given regime will also lead to a difference in the offices.
Will the types of offices vary per regime? (1299b21) Aristotle asks:
whether the same offices have authority in, for example, a democracy, an
oligarchy, an aristocracy, and a monarchy, but are not made up of equal [numbers
of] nor similar sorts of persons, but rather of different sorts in different regimes
(in aristocracies, for example, of the educated, in oligarchies of the wealthy, and
in democracies of the free), or whether it happens that certain of the offices exist
as a result of these very differences, and that in some cases the same offices are
advantageous, while in others they differ (for it is fitting for the same to be large
here, small there) (1299b22-30).

The suggestion is that different regimes will have different sort of people who are citizens
of the regime and thus be the pool of people to be eligible for the offices under that
regime. The assumption is that a given regime will not compose the offices equally of
the same sorts of people that another regime would. And that among regimes, different
sort of people are favored over the others. For example this chart would spell it out:

Type of regime

The Type of People Favored

1)

Aristocracy

The educated

2)

Oligarchy

The wealthy (plousios)

3)

Democracies

The Free

4)

Monarchy

[the group is not specified]

It is interesting that of the regimes verities that he mentions here only monarchy has no
corresponding group. If by this means there is no such group for that group, or that he
would rather stay silent regarding the group fitting for monarchy one does not know.
On the relativity of the office to the various regimes, Aristotle starts to flush out
the ways that given regimes will favor certain offices or shape them in certain ways.
Aristotle notes:
Some offices are indeed peculiar to particular regimes, such as that of the
proboulon; this is not democratic, whereas a council (boule) is popular (of the
demos). For there should be something of this latter sort which takes care of the
proboulon for the people, so that they can pursue their occupations; this is

oligarchic [only] when they are few in number. But the number of the proboulon
is necessarily few, and so this is necessarily oligarchic (1299b31-35).
Now the proboulon is a council (boule) that pre-deliberates things.6 Buy pre-deliberate
is to deliberate beforehand, that is a body or office that will deliberates a matter before
others will decide or approve it. Now Aristotle says that such a body inclines a regime
oligarchic direction. Now such pre-deliberation bodies might occur in a democratic
regime. Aristotle states that if the body is composed of many citizens then it is less
6

Carnes Lord translated proboulon a preliminary councillors, where as Peter Simpson

(1997) translated it as pre-councillors and Joe Sachs (2012) translated it as precouncilordiffering from Simpson by the single rather double l. Now I am not happy
with any of these translations of ton proboulon as pre-council is not that clear and procouncil evokes the Roman pro-councils which was an ruling office over a foreign distant
territory for the Republic and later the Empire. Because of these two points I will opt to
leave it in the Greek. Now such a practice can be found in contemporary political
practicefor example the role the British Cabinet plays in pre-deliberating policy
decisions before bringing them whole House for a vote. Or the role committees play in
the US Congress where issues are discussed more in detail in Committee (and in subcommittee) and the committee shapes the way the legislation is to be framed worded and
if it goes to the floor [although the whole chamber can force a committee to end debate
and send the bill to the whole chamber for a voteby the process called Cloture. But as
to the name to this general practice there is none that is generally used. So lack such a
term for this process, I thought it best to leave the Greek term alone.

oligarchic than then it is composed of a few persons. The fewer such a pre-deliberating
office or body has in it, the more and more oligarchic it is.
Aristotle points to where both these offices exist, the proboulon have been
established as a counter to the council (boule); for the council (boule) is popular, the
proboulon oligarchic (1299a36-37). Again this might be done to give the power to block
or check the power of the ruling force within the regime. He points to a counter case
where even the council (boule) can be overpowered by the citizen per se:
Yet even the power of the council is overturned in those sorts of democracies in
which the people themselves meet and transact all business. This is usually the
result when those coming to the assembly are either well off or get pay [to
attend]; for as they have leisure they can collect together frequently and decide all
things themselves (1300a1-5).
This example offers a radically democratic mode that after a council (boule) has
deliberated about a policy or decision the whole body of the citizenry must approve. Now
even in an oligarchy where all the citizens vote to ratify what a council (boule) has
deliberated is likewise democraticthis does not mean that the regime is democratic, but
that the given practice is a democratic one and may or may not push the regime into a
more inclusive direction.
Now after noting this radically democratic practice of all the citizens deciding
together, he turns to other peculiar offices. Aristotle notes that
The manager of children, the manager of women, and any other office that has
authority for this sort of superintendence is aristocratic, and not democratic. For

how is it possible to prevent the wives of the poor from going out? Nor is it
oligarchic, for the wives of oligarchs live luxuriously (1300a5-8).
Thus offices that seek to regulate the character of the people or specific groups of people,
such as the women and/or the childrenthis office has an aristocratic character. As too
would the Roman office of the censorwhose job was the policing of morals and the
character of the citizens. The attempt to regulate the character of the citizens on one level
does not seem democraticas the democratic principle per se is freedom and freedom is
held to be the ability to do what one desires. Yet we see if this is taken to its radical
position it is also tyrannical in character. This doing what one wants goes to the extreme
in the democratic regime form in the last democracy, it all too often ends with the rise of
a tyrant who was formally a demagogue or peoples champion. What is funny here is that
Aristotle suggests that the wives in democracies and in oligarchy are both in need of
regulationbut both regimes tend to fight against such regulating.
Now after the discussion of these aristocratic tending offices, he ends his
discussion on the question of what sort and how many offices are needed for a regime
and moves on to the question of how these officials for offices are to be selected (1300a910). Now before one turns to the question of selection let us look at the argument as it has
travelled so far. At the start of this investigation into the offices we were told at
Politics 1299a3-13 Aristotle would address these five questions:
1. [H]ow many offices are there?
2. What do they have authority concerning?
3. The length of time of each offices term.
4. Should the office be permanent, for a long duration or temporary?

5. Who should be selected for an office, who should do the selecting, and how
should they be selected?
But what we got instead were:
1. What sort of officeswhich are necessary versus useful
2. How many are neededsmall versus large political communities
3. Regime specificities of and on offices
4. Next will be discussing how offices are selected.
Now so length of time [question 2 from the original 1299a3-13 list] was briefly
touched upon in the discussion of small versus large political communities, but not
thoroughly (1299a35-b14). And the question of should the office be permanent, for a
long duration or temporary [question 4 from the 1299a3-13 list] has yet to be discussed
and we will see later was not discussed. Instead we had a very long discussion on how
certain offices are tied to certain regimes and others others (1299b15-1300a8). And what
Aristotle will talk about nextoffices and their selectionis the last question on the
1299a3-13 list. So what we got so far is different from what we were told we would get
now the reason for this is perhaps tied to the question of how the size of the political
community and the population and make up of the citizens within it effects the number
and sort of offices both needed and useful for the given regime. Add to that how the
given regime of the political community will favor some forms of offices over others and
also effect the way the offices operate as well.

The Selection of Officials


Now as he starts his attempt to treat the selection of the officials, Aristotle says he will
beginning from the beginning (1300a10). And what is that beginning? Well he says
[t]he varieties of selection depend on three defining principles, which when combined
necessarily embrace all the modes (1300a11-12). What are these three modes? They
are firstly (1) who appoints the officials (1300a12-13), secondly (2) from whom [or what
group] the officials are selected (1300a13), and lastly (3) how [or in what manner] they
[the officials] are selected (1300a14). He then notes that in each of these three cases
there will be three varieties within each case (1300a14).
But when one looks at what presented in the next section of the Greek text, we are
not given three modes of three but three modes of two varieties eachusing a either this
or that form of comparisonwhich goes like this: (1) either all or some select (1300a15),
(2) either from all or from special group (1300a15-19), and (3) chosen by election or by
lottery (1300b19). Now these next sections of Aristotle are some of the most difficult
with a number of textual amendments to the Greek manuscripts and this has led to some
editors of the Greek manuscript to suggest corrections and others to refuse to make
them.7 So lets go through carefully these thee modes and the possible verities.

This has had some editors of the Greek text such as Dreizehnter to suggest an edit of the

Greek manuscript to change the three for two (Dreizehnter 1970, 122). Yet Lord
(1984 and 2013), Simpson (1997), Reeve (1998), and Sachs (2012) all reject
Dreizehnters edit of the manuscript and prefer the original three in the manuscript.

So following from the above orderhe then will give the varieties in each case. So
starting with the first mode either all of the citizens select or some [of the citizens
select] (1300a15). Notice that the either or structure of the choice gives us two not three
varieties. The third non-stated variety is at best implied to be a mixture of the two
varieties and later Aristotle will make this claim for mixing more clearly than its merely
silent implication here.8 So what would a mixing of this mode look like? Peter Simpson
suggest the mixing would what Aristotle would note later that both all and some
together (Simpson 1997, 202n83). But how would that work? Could it be that some
would appoint a candidate and all would appoint another and then either both would
hold office together? But that would only work in an office with more than one official
to be placed in it. Another possibility would be when either (a) all do an initial
selection of a number of preliminary candidates and then the some will elect who will
fill the office or (b) the inverse. But then again Reeve opts to leave this mode with only
two varieties and refuses to suggest a conjecture for the third not stated variety (Reeve
1998, 130).
As for the second modethey select either from all or from certain special
persons, [distinguished] by assessment, for example, or family, or virtue [or excellence]
(arte), or some other such thing (as in Megara it is from those who returned from exile
together and fought in alliance against the people) (1300a15-19). So again those who are
to be selected are either from all the citizens or some special designated group. Now this
8

Lord (2013), Sachs (2013), Simpson (1997), and Rackham (1944) take for grated the

missing third variety of each mode is the mixture of the two stated varieties; and so does
Newman (1973) in his commentary.

passage on the second mode differs from the first mode by clarifying what is meant by
some. In the first mode the nature of the some is left unstated or not clarified. But
here in the second mode he makes clear the some is to be some special group or class
of people. Now the gives some examples of how they are to be distinguished as a group:
(a) by some assessment of their wealth, (b) by their familywhich means those who
have long clear heredity linage in the community, (c) by their possession of some virtue
or excellenceperhaps a virtue or excellence that the regime needs or would like to
foster, (d) or something otherof which he gives the example of Megara which Aristotle
discusses further at Politics 5.3.1302b30-12 and 5.5.1304b34-39where exiles who were
expelled by a democratic revolution return and overthrow the democratic regime and
restore the pro-Spartan Oligarchy. Now the example for the 1300a18-19 passage is that
this group or returnees who overthrew the democracy now were treated as a special class
and offices where only to be filled from this group.
So this last form of some opens up the different forms of them some to many
different possibilities. There are many ways that a group of people can be marked out
within a regimethey may have done something essential to the regime or that the
regime holds as essential, or they possess some trait or characteristic (aside from virtue or
excellence) that separates from the rest of the community. Two obvious modes of
distinction, form our contemporary prospective, but were not spoken by Aristotle here are
race and ethnicity. Aristotle is strangely silent about the question of ethnicity in the
Politics, yet it [as well as race] is still something present and something that could be a
source of special preferment.

Now, lets us turn to the third and final mode, which is selection is made either by
election or by lot (1300a19). Now selection by election is where people are chosen by
the citizens or some sub-group of the citizens. Now one can vote openlyas the early
Romans did where people vote by dividing up physically from those who vote one way
or the other. So the number of divisions would reflect the number of choices. The way the
Democratic Iowa Caucus in the American party-primary process does a similarwhere
as the members of the caucus divide into the different parts of the room where there is a
representative for each of the various candidatesand the one with the less people in that
area is removed from the next round until there are no more defector. So one can move or
divide up, raise one hand, and speak up and state your preference, or by casting a ballot
where there are different boxes and you put your vote into the specific candidates box.
But all of this is publicand everyone present can see ones vote. Another way is secret
ballotingwhere the vote is not known by othersand who is voting is anonymous (that
is there is no easy way to know who voted for whom). And by such ways there are many
ways that such ballots can be created.
The other way of selectinglotteryoffers very little difference. Names are to
be placed into a pool (or perhaps all the citizens names are in the pool) and some process
of random selection chooses who is to be selected. The key to selection by lot is the
randomness of the process. Now as Aristotle mentioned earlier the concept of selection
by lottery is a very democratic one, whereas selection by election is very aristocraticso
the variety this mode chooses will incline the offices toward one regime or away from
another.

After going over the three above modes and their varieties, Aristotle adds some
further complexity to the model. He says: And these may again be conjoined, by which
I mean that some offices may be selected by some and others by all, some may be
selected from all and others from some, and some may be selected by election and others
by lot (1300a19-22). Now this leads to him addingIn the case of each of these
varieties there will be four modes (1300a22-23).9 Now these modes are different from
the previous mentioned ones above.
Now given the confusing nature of the 1300a23-31 passage I will present several
different translations of it so you can see the best attempts to give a faithful rendition of
the textI will present Carnes Lord translation of it first:
For either all select from all by election or all from all by lot (and from all either
by turn, for example on the basis of tribes, quarters, or clans, until all the citizens
have been gone through, or from all each time), [or all select from some by
election or all from some by lot]; and offices can be selected partly in one way,
partly in another. Again, if some are selecting, they may do so either from all by
election or from all by lot, or from some by election or from some by lot; or
9

Now here arises a disputeSachs (2012, 134n133) says The manuscripts have the

number four, but the text of this entire passage is uncertain, and exactly what is being
counted when is unclear. The translation follows from Rosss [(1957)] version, which
incorporates a number of emendations. In Sachss translation he says six modes not
four. Now Reeve (1998, 131) will delete the various emendations by Ross and keep four
modes. Lord (2013, 126) likewise keeps the four modes, as will Simpson (1997, 203),
but Simpson in his note clarifies the mess in his notes.

offices can be selected partly in one way, partly in another I mean, [for
example,] they can be selected from all partly by election, partly by lot (Lord
2013, 126).
Next is Peter Simpsons translation of this same passage:
For either all appoint from all by election or all appoint from all by lot (and from
all either in sectionsfor example, from all according to their tribes and wards
and clans until all the citizens are gone throughor from all every time), [or all
appoint from some by election or all appoint from some by lot], or they appoint
partly in this way and partly in that. Again, if it is some who do the appointing,
they do it either from all by election or from all by lot, or from some by election
or from some by lot, or they do it partly in this way and partly in that (such as
partly from all by election and partly by lot) (Simpson 1997, 203).
The next is from Joe Sachs:
For either all appoint from all by election, or all from all by lot, or all from some
by election, or all from some by lot (and if from all, either by turns, for instance
according to tribes, districts, or fraternal groups, until it goes through all the
citizens, or else from all together), or also some are done one way and others
another. If, in turn it is some who do the appointing, this is either from all by
election, from all by lot, from some by election, from some by lot, or some one
way and others another by which I mean in some cases from all by election and
in others by lot, or in some cases from some by election and in others by lot
(Sachs 2013, 134-135)
And lastly I will give you C D C Reeves translations:

Either all select from all by election or all select from all by lot (and from all
either by sections-by tribe, for example, or by deme or clan, until all the citizens
have been gone through--or from all on every occasion); or from some by election
or from some by lot; or partly in the first way and partly in the second. Again, if
only some do the selecting, they may do so either from all by election or from all
by lot; or from some by election or from some by lot; or partly in the first way and
partly in the second-that is to say, for some from all by election and for some by
lot (Reeve 1998, 131).

From all of these translations of the 1300a23-31 passage there is lots of confusion.
Peter Simpson in the notes of his translation offers this solution:
The Greek of this passage is notoriously controversial. I follow the manuscript
readings as given by Newman and abandon Dreizehnter but insert, with many
editors, the words marked by square brackets (the only addition that seems
necessary for the sense). Aristotles meaning is that we take each of the three
differences in the third term and combine them one after the other with the four
combinations formed by the first two differences in the other two terms (omitting
the third difference, the two pairings, in these other two terms). Thus, the three
differences (election, lot, election and lot) are combined in turn, first with the
combination of all appointing from all, second with the combination of all
appointing from some , third with the combination of some appointing from all,
fourth with the combination of some appointing from some (Simpson 1997,
203n87).

I find myself agreeing with Simpson here and his summing up what the four modes that
are talked about at the start of 1300a22-23. And following from what he says we can see
a twofold interconnection between the modes of selection and the interconnections
between those doing the selecting and those being elected. Thus what is called the four
modes are the possible outcomes of the variations of those doing the selecting and those
being elected. Thus those four modes are:
1. All appointing from all
2. All appointing from some
3. Some appointing from all
4. Some appointing from some
And they are then to intersect these three means of selections: (a) election, (b) lot, and (c)
both election and lot.

Now from these four modes we finally get twelve combinations apart from two
conjunctions that are tacked on (1300a32). Let me give a list of the twelve
combinations:
1. All selecting from all by election
2. All selecting from all by lot
3. All selecting from all by both election and lot
4. All selecting from some by election
5. All selecting from some by lot
6. All selecting from some by both election and lot
7. Some selecting from all by election

8. Some selecting from all by lot


9. Some selecting from all by both election and lot
10. Some selecting from some by election
11. Some selecting from some by lot
12. Some selecting from some by both election and lot
And the two conjunctions that are either omitted or added to this list are:
1. Selection is by both some and all
2. Selection is from both some and all

Now Aristotle turns to relationship between the selection process and the various
regimes. Aristotle will first focus on democratic forms, those suitable to popular rule he
says are two. They are to be appointments (a) that are made from all citizens in
sections and (b) when it is made from all the citizens together (Simpson 1997,
203n88) either by election, lot, or both election and lot (1300a33-34). Now either by
turns or in all the citizens together points to the passage at 1300a24-26. And the selection
by turns is to be done of either some section of the citizens such asdeme, quarters, or
clans. So let us look at this movement through after discussing the democratic forms of
selection, to the other forms.
After discussing the forms of selection that are considered to be democratic and
popular, Aristotle then turns to a discussion of those suitable for a regime. The text
reads:

When all select but not at the same time, and select either from all or from some,
either by lot or by election or both, or select from all and some from some [either
by lot or by election or] by both (by both I mean some offices by lot and others
by election), it is characteristic of regime (1300a34-39).
Now given he has talked about a specific form of regime (politeia) when he talked about
the forms of selection that are democratic we are expecting him to talk about specific
regime types. So his use of the term regime (politeia) raises questions whether if this is
about the forms of selection of officials that are to be applicable to regime (politeia) as a
specific form of regime or to any regime per se.10
But regardless of the question how he is using regime in this section of texthe
say those form of election he just mentioned are suitable for regime (politeia) or a regime
(politiea). But perhaps we need to understand this passage in light of what comes next
where Aristotle says:
When some select from all by election or by lot or by both (some offices by
election and others by lot), it is characteristic of an oligarchic [regime], though by
both is more oligarchic; when some offices are selected [by all] from all and
others from some [or offices are selected by election], or some by election and
others by lot, this is characteristic of a regime [run] in [an] aristocratic fashion
(1300a39-b2).
10

If one does not assume the regime here is what some translators call polity and leave

politeia as one would translation it as the classwhich I have been for the purposes of
this chapterregime. For the examination of about what is held to be the politeia called
politeia see chapter XX above.

The passage just quoted speaks how some selection varieties trend towards oligarchy and
others trend towards a regime [run] in [an] aristocratic fashion and thus suggest some
selection variations trend toward one form of regime and others another. And given
oligarchic and aristocratic forms seem blurred hereperhaps the above discussion about
those variations suited for a regime was regarding regime in the generic usage. It
adopting the so-called polity interpretation would simplify this greatlybut the Greek
text is very far from clear and simple hereso to offer the simple and smooth solution
might distort what Aristotle is trying to say here.
Now let again us return to where we left off. After the sentence at 1300a39b2
which discusses both oligarchic and aristocratic forms simultaneously. Now in the next
sentence Aristotle clearly focuses on the oligarch forms of mode of selection. He writes,
It is oligarchic when some select from some [by election], and similarly when some
select from some by lot (though this does not occur), and when some select from some by
both [election and by lot] (1300b2-3). Now it is very clear these forms are said to be
oligarchic and what makes it so is that the pool of people selecting and being selected is
diminishing and not moving towards all. This is to say that some is much fewer than
many and many is closer to all than some. Thus some implies the either the few selecting
and/or being selected.
But after this sentence, Aristotles next sentence says that the form is aristocratic
when some select from all, and on occasion all from some, by election (1300b3-4). Here
the move away from the mode of some selecting from some to the modes of either all
selecting from some or some selecting from all distinguishes the difference between
oligarchic and aristocratic character of the form of selection. Notice in this sentence

there no mention of means of selection (that is by election, lot, or both). That is not true
concerning the previous one about oligarchic forms of office selection variations. Nor is
it the case for the sentence that preceded that one. In that there is a clear discussion of
means of selection (i.e., election, lot, and both). So the 1300b3-4 passage focuses on one
modethe from who and by who of the selection process by dropping the question
of the means of selection.
This whole paragraph from 1300a34 to 1300b4 has been a very complex and
condensed mixture of looking at what selection variation suits what regime. It is
confusing enough that people might not notice some things. One of the things one should
notice is that throughout this discussion Aristotle did not speak of what are often held to
be the most fundamental distinction or division within a regime, the division between the
many, hoi polloi, and the few, the hoi oligoi. Instead we have been talking about
all and some. And what is even more interesting is about the particular all in
questionis it all the citizens of the regime (understanding that different regimes have
different understanding who is and who is not a citizen) or all the people within the given
political community. We must remember that a citizen is only one who shares in the
ruling of the regimeso if there be any people who dont have a share within the regime
(that is to say they have no voice in the deciding about the regime) they are not citizens
but merely subjects, who inhabit the regimes political community but have no voice in
ruling it.
Also when looking at this sectionwhich is a single paragraph in the Greek
textand find ourselves dealing in terms of some and all we are very much dealing
with questions that are at the heart of philosophy. Are not these terms very central to

Aristotle science episteme? And given this fact we need to wonder why the shift to
some and all in lieu of more strictly political labels of many and few. And in
philosophy the great concern is the relationship of the part to the whole and the terms
some and all very much echoes those terms. Now we know that all and the
whole are similar and somewhat identical terms in what they are talking about. So
some is connected to part, which is where the part is within the whole. Now
regarding the few and the manythey are both understood to be parts with the regime.
And thus both the few and the many are different form of some. So although
many are more than few they are both less than all. So some can mean either the
few or the many. Or it a can also mean any other form of selection of people into a class
or a group of similar people. This is what was so interesting about Aristotle discussion of
some by special selection process above at 1300a15-19. Thus all the various divisions
within a given political community or within a given regime can be understood to be the
parts that makes either up the political community or the regime.
In the next and last Greek paragraph of Politics 3.15, Aristotle raps the discussion
of the process of selection up. But how he does it is far from spelling out what has been
discussed concretely. Instead Aristotle says this: The modes concerning offices are,
then, so many in number, and are distinguished in this manner in accordance with the
regimes (1300b5-6). Huh? Why no mention of the number of the modes and some more
clarity on the means by which offices are to be understood to be suitable to what regime
and which are not. This is all left vague. And when we turn to his next sentence, seems
to suggest that all the questions of what offices are advantageous for which regimes, and
how their selection should occur, will become evident together with the powers of the

offices and which these are (1300b6-9). Thus all of these very complicated issues are
said to be event once we take into consideration the powers of the offices. But ought
not the discussion of the power of the office at the beginning of Politics 15where the
second initial question regarding the offices where he asked what do they [the offices]
have authority concerning (1299a5-6). Also at 1299a15-31 was not the nature of the
offices and their power was discussed.
In the last two sentences of this chapter Aristotle clarifies what he means by
power and in doing so offers a much clearer that what was discussed at 1299a15-31
about the scope of authority of the officeswhich focused more on the question of
jurisdiction than of the offices power. He says,
By power of an office I mean, for example, having authority over revenues or
having authority over defense. For a different kind of power is involved in
generalship and in having authority over agreements in the market (1300b10-12).
And what he says in these two sentences suggest that offices that deal with revenues of
the community and those that deal with defense of the community are different in regard
to power. But how they are different he does not say. Rather one assumes that given
defense of the regime means killing of people and saving their lives it is of more power
than money. But money is needed to wage war and without it one does not have the
means to wage war or to defend oneself effectively. What ought to been a point of
clarification likewise leads to more questions.
One of these questions is why this point about power not fully addressed either at
the end or the earlier discussion of the differing authority among the offices (see
1299a14-31). Another question why was the length or terms of the offices not more fully

dealt with here.11 Or why the question of whether an office be permanent, for a long
duration or temporary which mentioned to be discuss but never was. All of these
question perhaps again to point to a limit in the scientific approach of this chapter, with
its language of some and allperhaps given the things of prudence (phronesis)
cannot be addressed properly by science (episteme) then the silence and omissions of
these issues are signs of Aristotles prudence (phronesis) in these matters.12 So with
these silence and omissions Aristotle ends his discussion of the offices, in the next
chapter he turn the adjunctive offices.

11

Now he does return to in Politics 6, chapter 8 to another discussion of the offices. I

will only say that in that chapter Aristotle goes into more detail and talks about the
different types of offices. How that account differs from this one is that it follows
Politics 5, which deals with factions and conflict within a regime and change and
preservation. Perhaps Politics 4 offers us the picture of the regime, politeia, at rest and in
its eternal formwhere as Politics 5 talks about the regime in motion and in its much
more contingent character, so Politics 6 gives would give us the picture of the regime
after reflecting on the regime in both unchanging and changing character.
12

For Aristotle account of phronesis and episteme and their relationship to political

things, see Nicomachean Ethics 6.

Chapter 9
The Adjudicative Element

Now we are turning to the adjudicative element and the place it plays within the regime.
Now as I noted earlier the adjudicative element was mentioned earlier in Politics 4
chapter 4 where he discusses the parts within a political communityactually as I noted
it was the first type of part mentioned if one was to care about the soul rather than the
body of the political community (4.4.1291a24-29). Now it is the final of the discussion of
the institutional parts discussed and it also end Book 4. Thus the discussion regarding the
judging or adjudicative element gets the last word on the discussion both in regards to the
section of Book 4 that deal with the offices within the regime (politeia) and for the representation of the regime (politeia) given in this book of the Politics.
Now regarding the adjudicative element Aristotle says that The modes of these
[bodies] too must be grasped in accordance with the same presupposition (1300b13-15).
But this he means that it needs to be understood in a similar fashion to the discussion of
the officesin that the adjudicative is a very special type of officewith a very specific
function. And thus it will share some feature with the offices and thus perhaps is why it
follows the discussion of the offices.
Let us return to the text where Aristotle says: There is a distinction among courts
deriving from three defining principles: from whom they are selected, on what matters
they decide, and in what manner they are selected. By from whom I mean whether they
are selected from all or some; by on what, how many kinds of courts there are; by in

what manner, whether by lot or election (1300b15-18). Here Aristotle divides the
principles by which we will understand the adjudicative element into three. He also
briefly gives the short answers to the given principles he lists here.
Judicial
offices
1
2
3

Principle

Variations

From whom they are selected


On what matters they decide
What is the manner they are
selected

all or some
The types of courts.
(1)lot or (2) election

Yet when we turn to the next paragraph where one thinks he will return to elaborating on
these principle in more detail, he does not start with from whom they are selected
which what he mentions first at 1300b15-16, but with the matters which they decide
which are the types of courts.
Notice that the name of the adjudicative or judging part is clearly named as the
court. This is not done in the case of either the offices or the deliberative element. Those
parts are never given a name that represents their functions in the same way as the term
court does for the adjudicative. Perhaps this is the case because there is much more
universality in how the adjudicative function manifests itself as among political
communities than either the deliberative body or the magisterial offices.
Let us turn to the text and the next paragraph, where Aristotle suggests that we
should first start with the type of courts (1300b19). He then says there are eight types of
courts (1300b19-20). He then will give a listing of them:
One is concerned with audits; another is for anyone committing a crime with
respect to common matters; another is concerned with what bears on the regime; a
fourth is for both officials and private individuals and concerns disputes over

fines; a fifth is that concerned with private transactions of a certain magnitude.


Besides these there is one concerned with homicide and one with aliens
(1300b20-24).
The first thing from this listing of the types of court is that there are seven not eight of
them. The eight will only be mentioned after he flushes out these seven types of courts.
But why is the eight not mentioned initially as the others are? This question will have to
wait, until we go through and flush out in more detail the seven types he does mention
here.

On Homicides
Right after he list the seven out of the eight types of courts, he then interrupts with a
discussion regarding the homicide courts. What Aristotle says regarding the homicide
courts is this:
(The kinds of homicide court, whether having the same persons as jurors or
others, are: one concerned with premeditated homicides; one with involuntary
homicides; one with cases where there is agreement [on the fact of homicide ] but
a dispute over what is just; and a fourth with cases involving those who had been
exiled for homicide after their return, as is said to be the case, for example, with
the court of Phreatto in Athens, although such cases are few over the whole of
time even in large cities.) (130024-31).
Now it is interesting that he start his elaboration of the type of courts by first clarifying
the homicide court instead of what type of court he first mentionsthe once concerned
with auditing official. Also it is interesting to note the clarification come as a digression

in the text by its being surrounded by parentheses. Usually doing that in a text means it is
a side point, elaborating something briefly outside the flow the argument or expanding on
a point within the argument to give an example. And when we look at the remaining
paragraph here we see what follows this elaboration on the homicide courts is another
elaboration of the courts regarding aliens and then the discussion of something of they
type of court he has not mentioned in the initial listing of the types of courts at 1300b2024. So what is important about homicide that it forces an interruption and demands to be
dealt with first.
Let us look closely at the varieties of homicide courts that he presents here. They
are divided into four classes of courts: (1) dealing with premeditated homicides; (2)
involuntary homicides; (3) dealing what we today would call justifiable homicide; and (4)
one dealing with those who have exiled who are now accused of homicide. Now these
distinctions in homicides follow the practices in most countries norms of law. Yet
suggest that these are different type of courtnot the scope of the jurisdiction of the
homicide court. Now one wonders about the need to divide these into four different types
of court and for issues with the first three cases it does seem unclesrbut when it comes
to the last type of homicide court (the court trying former exiles who are accused of
homicide) and the example of the court of Phreatto in Athens that Aristotle offers gives
us a suggestion.
Why does Aristotle find the need to interrupt his listing of the types of courts with
immediately addressing the homicide courts and the court regarding aliens? Perhaps the
reason is the seriousness of the crime among the Greek, in that homicide is a very big
taboosomething taken very seriously among the Ancient Greeks (see Budin 2004, 211-

212). The key importance of homicide is very noticeable if one looks closely at Ancient
Greek law and custom. One only has to look at the laws of Draco on the subject to see
how serious homicide was taken. The laws of Draco say regarding it the following:
Even if someone kills someone without premeditation, he shall be exiled. The
Basileis are to adjudge responsible for the homicide either . . . or the one who
instigated the killing. The Ephetai are to give verdict. Pardon is to be granted, if
there is a father or brother or sons, by all, or the one who opposes it shall prevail.
And if these do not exist, pardon is to be granted by those as far as the degree of
cousins son and cousin, if all are willing to grant it; the one who opposes it shall
prevail. And if there is not even one of these alive, and the killer did it
unintentionally, and the Fifty-One, the Ephetai, decide that he did it
unintentionally, then let ten members of the phratry admit him to the country, if
they are willing. Let the Fifty-One choose these men according to their rank. And
let also those who killed previously be bound by this ordinance. A proclamation is
to be made against the killer in the agora by relatives as far as the degree of
cousins son and cousin. The prosecution is to be shared by cousins, sons of
cousins, sons-in-law, fathers-in-law, and members of the phratry . . . responsible
for homicide . . . the Fifty-One. . . . If someone kills the slayer or is responsible
for his being killed while he is avoiding a frontier market, games, and
Amphictionic rites, he shall be treated on the same basis as one who kills an
Athenian. The Ephetai shall bring in the verdict . . . one who is the aggressor . . .
slays the aggressor . . . the Ephetai bring in the verdict . . . he is a free man. . . .
And if a man immediately defends himself against someone who is unjustly and

forcibly carrying away his property and kills him, the dead man shall receive no
recompense. . . (Stroud 1968).
And Solon laws follow in the footsteps of what Dracos on this issue. We see that
homicide was fundamentally threatened the polis and its survival. But to understand that
and we need to understand the role of the gods that were connected with such killing.
Perhaps the reason is the seriousness of the crime among the Greek, in that
homicide is a very big taboo among the Ancient Greeks. Especially since the most
ancient of the godsthe furiesare connected with the taking of life/spilling of blood,
and thus are particularly aroused by killing.
The danger that the furies evoke in a community is that of anger and the desire for
revenge on the part of the kin and friends of the party killed towards the once accused of
doing the killing. The power of such anger let loose on the community is very
powerfully described by Danielle Allen:
When Aeschylus describes the Furies disease, the sickness of their anger, as
dripping from their eyes, he employs the common Athenian habit of drawing
connections among vision, anger, and the spread of the disease of social
disruption. Those who looked upon a murderer were polluted by the sight; and a
murderers glance was said to spread poison just like the look of a snake. In Greek
conceptions of vision, sight involved the physical transfer of particles and
properties from one person to another (Allen 2003, 6).
She continues, by noting:
Wrong-doers and their acts of wrong-doing were poisonous and were like
poisonous snakes, because they introduced anger to the community: glares,

glances, and poisonous looks or, simply, negative forms of intersubjective


exchange among citizens. They were plagues to the community as a whole
precisely because sight of them made people angry. Whereas the victim and
would-be punisher were diseased because they felt anger, the wrongdoer
transmitted disease because, in angering people, he upset the harmony of social
relations. Anger justified punishment since, as a disease, it demanded a cure
(Allen 2003, 6-7).
Given this, the Greek cities took homicide seriously--to the point of not even burying the
executed within the grounds of the polis. The presence of a homicide--either alive or
dead--brought the attention of the furies and with their attention their wrath, which can
have a very disruptive and ultimately destructive effect on the community.

Aeschylus's Oresteia and the rise of the rule of law


Now to understand how these primal forces that one finds in the nature of human being
that the deities of the furies came to represent came to be controlled and to serve the good
of political life it is instructive to take a look at Aeschyluss The Oresteia.13 It begins
with Agamemnon, the leader of the Greeks in their war against the Trojans, returning
home from the war. He returns home the victor of a great, yet costly war. He brings
back many great prizes. One of them is the Trojan princess Cassandra. Expecting great
acclaim and acknowledgment upon his triumphal return, instead he finds his wife

13

The Oresteia. is a trilogy composed of Agamemnon, The Libation Bearers, and The

Eumenides.

Clytemnestra has taken up with Aegisthus, a political enemy. The reason for her action is
that she desires revenge on Agamemnon for the sacrifice of their daughter Iphigeneia.
Clytemnestra plots Agamemnon's death with her lover to revenge Iphigeneia's
sacrifice by Agamemnon, whom he sacrificed to win the war against Troy. Although
Aegisthus does not actually take part in the killing-- Clytemnestra alone murders
Agamemnon--he goes along with the plot so he may take over the polis. Agamemnon
ends with Clytemnestra and her lover Aegisthus in charge of the polis and the citizens
waiting for Orestes to remove the newly imposed tyranny.14 Although the citizens of
Argos challenge what both Aegisthus and Clytemnestra did, they are powerless to right it.
Although the citizens can easily rise up and kill both murders15, they lack the authority or
14

Peter Euben rightly argues that Clytemnestra's actions take her beyond the proper

scope of human action, thus endangering the possibility of human association (Euben
1990, 72-75). However Euben's feminist sensitivity understates the differences between
the injustices of Agamemnon and Clytemnestra. In one sense, although Agamemnon's
actions are harmful to his own family, they could be justified in the context of
faithfulness to ones own oath. Remember, he is obligated by an oath to punish the
Trojans for their injustice to his brother. On the other hand, Clytemnestra's acts, in that
marriage is the most fundamental basis of human association, are far worse than her
husband's in that her acts destroy the basis of an important form of human association
which does not wholly rely upon force.
15

Nicholas Rudall says that the powerlessness or inaction of the free male citizens in

Agm should be contrasted to the slave women, who are prepared to take action, in the
beginning of LB (Green and O'Flaherty 1989, 21). Although the slave women are equally

sanction to take action against either Aegisthus or Clytemnestra. The citizens must wait
for Orestes, who because he is Agamemnon's son, has sanction to take vengeance. The
polis of Argos is thus reduced to the household of Agamemnon, where only the head of
the household has authority to pursue policy.
Orestes, who is in exile, returns home to mourn over his father's grave. There he
meets his sister, Electra. Although he desires to revenge his father, he has some doubts.
Electra demands that her father's murderers be punished. This is the story of The
Libation Bearers.
To aid him in his decision, Orestes informs her that he sought counsel from
Apollo's oracle. He says the oracle told him to "kill them to match their killings" or the
Furies of his father's blood would drive him mad. Now resolved to do as Apollo's oracle
commands, he disguises himself as a stranger to enter his mother's house. He then kills
both his mother and Aegisthus. Apollo then requires Orestes to cleanse himself.
Although he does what Apollo requires, his mother's Furies nevertheless pursue him,

without authority to act, their thirst for vengeance--echoing the same thirst in the Furies
against Orestes--has a plausible justification against tyranny. Clearly the rule of
Aegisthus and Clytemnestra is tyrannical and since tyranny is an abrogation of the
standards of all established authority and social norms, thus the slave women's lack of
authority to act can be practically ignored given the general lawlessness of the newly
established political regime. Yet the slave women do not act. Rather, Orestes, who in the
old system--as heir and head of the household--alone has authority to act, carries out what
they themselves desire to do, revenge Agamemnon's murder.

attempting to drive him mad. This is how they seek vengeance for the murder of his
mother.
The Eumenides begins with Orestes fleeing from the Furies. He again appeals for
Apollo's protection. The god arrives but he cannot stop the Furies' wrath. In an attempt
to stop the Furies and aid Orestes, Apollo arranges with the Furies for a trial of Orestes
with Athena presiding. In Athens, however, Athena says she cannot decide the case of
murder alone, because the law requires a jury trial. Athena in doing this establishes the
Areopagus as the political institution in Athens which is concerned with justice and the
rule of law (compare Meier 1990, 106-115, 120-121, 124, and 134 and Hogan 1984, 168,
173 and 174). A jury trial is agreed to. Apollo presents his defense of Orestes and his
actions. As Meier says, in this play, "right is pitted against right: a worse dilemma cannot
be imagined" (Meier 1990, 89).
After Apollo's defense, the Furies then present their case against Orestes. Meier
makes the case that the Furies "alone have assumed the task of avenging Clytemnestra,
since no mortal avenger is left" (Meier 1990, 90). Thus they see their role as defender of
blood ties forced in that no one will take action against Orestes. Athena, before the jury
hands in its verdict, says her vote will be for Orestes, because she is wholly for the father,
and if there is a tie Orestes is to go free. With Athena's vote, the vote of the whole jury
results in a tie--thus the verdict favors Orestes. Ferguson suggests that there is a
relationship between the number of speeches made by both parties and the vote of the
jury. He says "the Furies have spoken six times, Apollo five; there are six votes for
condemnation, five for acquittal" (Ferguson 1972, 107). The Furies are not satisfied with
the outcome of the verdict. Although they will end their pursuit of Orestes, they now

desire to seek vengeance on Athens. Athena is aware of this and being Athens protector
she begins to persuade the Furies not to engage in that course of action. Instead, she
attempts to persuade them to be the special guardians of the polis. She is successful in
her argument and the Furies are reconciled to the polis. The play ends with Orestes
restored as ruler of Argos, promising that Argos will never be an enemy of Athens, and
the Furies, now to be known as the Eumenides, becoming the defender of the polis.
In the Eumenides, there is a clear tension between the old gods, the Furies, and the
new gods, Apollo and Athena, fathered by Zeus. This tension echoes the tension that is
found in the play between the household (and the pre-political) and the polis (and the
political). The old gods are aligned with the household and the new gods are aligned
with the polis (the political community). This is important: At the time of the trial, the
Furies are still unreconciled toward the polis. The household bonds, expressed as kin
loyalty, force one to a cycle of revenge, in order to right wrongs done to the family.
There is no end to vengeance and no peace. The desire for peace, which is needed for the
fulfillment of human happiness (eudaimonia), entails that one rise above one's own--kin
tiesto some other claim that is more authoritative. This other claim is that of the law
and its rule.
At the end of the Oresteia, the realm of the household, oikos, is now to be under
the authority of the polis. In one sense the Oresteia represents not the rise of the polis
per se, since the polis may be said to have existed before the end of the trilogy, but the
rise of the authoritativeness of the polis or, as Christian Meier says, the discovery of the
political in Greek political thought (Meier 1990, 80-139). Meier says that the Oresteia
"gave expression to the political at the very moment when it first burst upon Athens, and

did so, moreover, in a manner that was wholly adequate to the theme and is still relevant
today" (Meier 1990, 82). Although the Oresteia concerns itself with showing how the
political became authoritative, let us not forget the particular regime that triumphs at the
end of the trilogy--Athenian democracy--and Aeschylus' role in giving it a defense. Also,
W. B. Stanford argues that Aeschylus' portrayal of Athena's founding of the Areopagus
presents him as a "conservative democrat, he conserves his origins by competing with
them, evincing their potential for the future" (Fagles 1975, 97).
The reconciliation of the Furies to the polis at the end of the Oresteia is essential
if the political community is going to be authoritative concerning human affairs. This is
Athena's gift to Athens--politics or more correctly the authoritativeness of the political
community. Also, Euben is correct in saying that "what Athena does in the play,
Aeschylus does through it" (Euben 1990, 83). Thus Aeschylus' portrayal of how the
political becomes authoritative--which is wholly absent from Aristotle's discussion of the
polis in either Politics 1.2 or elsewhere--is to remind us of how human life understood
through community, by its rejection or ineffectualness can be returned to the pre-political
cycle of blood violence. Also it is clear that Aeschylus sides with Athena not Apollo.
Apollo desires to merely get rid of the Furies, Athena does not. She is far more
understanding of the importance of the Furies in human life. Therefore Aeschylus
underscores Athena's project--the creation of the political-- with his--the creation of the
Oresteia.
Athena understands that without the power of the Furies the justice which the
polis desires to provide would be ineffectual. This echoes Aristotle's understanding that
politics, against that of the Sophists, is more than mere reason or persuasion (logos),

rather it is the combination of persuasion and coercion. Coercion or force is to be


understood, in this particular context, as the exercise of law. If the justice of the city is
ineffectual then the forces of vengeance would continue to be the only source for the
satisfaction of injustice. Thus the cycle of violence would again make human community
either impossible or increasingly despotic. Therefore Stanford is correct in arguing:
[L]aw is strong, moreover, because Athena incorporates the new invaders, the
Furies and their powers. Terror and reverence become her people's kindred
powers, and seizing on the Furies' most creative hopes, Athena commands her
people not only to repel injustice but preserve the right of men. (Fagles 1975, 80)
Ferguson adds to Stanford's interpretation of Athena's incorporation of the Furies in the
polis. He argues that the Furies are needed allies for the survival of political community.
He says that "in the past, justice has been equated with the power of the Furies, the power
of blood feud, blood always calling for blood in endless secession" (Fagles 1975, 106).
Now justice is to be associated with the polis (the political community) and its
manifestation in Athena's creation--the Aeropagus. Thus, in Aristotle's eyes, the Furies
come to embody what is essentially what is necessary for politics, the promise of
coercion, hence retribution, for non-compliance with the laws of the polis.
Aeschylus' project in the Oresteia is to reinforce and remind his audience of the
argument that without the Furies supporting the city's jury, justice, would be wholly
ineffectual. But making the Furies the polis's special protector, not only puts the Furies
under the control of the polis and thus restrains them in how they will carry out their
vengeance, but it gives greater stature to the new social order--the political community.
In doing this, Aeschylus gives us a dramatic explanation of what Aristotle claims and

thus he allows us to come to a fuller understanding of what Aristotle means by the


political community and its authoritativeness in human affairs.
In the Oresteia, the political communitys justice is likened to the Furies ancient's
role as defender of what is right and the corrector of injustices. Thus while the demand
for "blood calling for blood in endless secession" is replaced by the deliberation and
action of the city's jury, the political community will indeed do what the Furies did--right
wrongs and protect the family. However, it will not do so in the same ruthless and
destructive manner. Rather, the justice of the political community will be a compromise
between the peace, which is an essential precondition for human happiness, and the
demands that wrongs be righted and those who commit them be punished.
In the new order of the political community, it is clear that not all acts of injustice
will be sought out and punished; rather, only those that threaten to destroy the peace or
happiness of the human association. Therefore justice, which is made possible by the
political community and which will make human happiness possible, cannot and will not
punish all injustice. To do so would be irrational and harmful to the greater human good.
This Aristotle knew well. It is why his account of justice in the Nicomachean Ethics is
not as comprehensive or absolute as some contemporary social theorist desire it to be.
In this light, to punish all violators would make the same error that the Furies did-to destroy all the good things one has to remove one single evil. But this is also why the
Furies needed to be made part of the city. The moderation which is to be imposed on the
Furies is also imposed on the city in regards to them. Moderation is now to be the
qualifier of justice. Again, this echoes Aristotle's account of both justice and moderation

(sophrosune) in the Nicomachean Ethics. Also, Richard Lattimore agrees with such an
interpretation of the trilogy. He says,
Man cannot obliterate, and should not repress, the unintelligible emotions. Or
again, in different terms, man's nature being what it is and Fury being a part of it,
Justice must go armed with Terror before it can work. (Lattimore 1953, 31)
Rather the justice of the political community is a moderation of the Furies and therefore
explains why the political is and must be authoritative for human life.
The above argument also explains the centrality of Aeschylus' Oresteia to the
tradition of western political thought. It is as Meier said about it--the document which
gives form to the idea of not only the political but the supremacy of democratic or
popular rule restrained by law (Meier 1990, 83-87). It also expands upon and clarifies
Aristotle's argument that man is by nature a political animal. It does so by demonstrating
that the political community, the habitat where human beings can only live well, needs to
be authoritative in human affairs. Only when the political community is authoritative,
can human life obtain not only peace and security, but also the higher goods, such as
happiness and the best way of life.
Therefore, the supremacy of the political over the household, as dramatized in
Aeschylus' trilogy, makes possible the enrichment of human lives that before were
constrained by endless violence responding to endless violence. So justice-- that which
the city only brings about--insures an end or at least a long break from the violence of the
non or sub-political. Yet, this is the essential precondition, in which human nature can
fulfill its proper end in moral and intellectual excellence. Or, to repeat John Ferguson's

comment about the Oresteia, "man finds his fulfillment only in ordered society"
(Ferguson 1972, 106).
Given that the political community or polis (defined by its regime) is the ordering
of society (see Politics 3.1.1274b34-38, 3.3.1276a40-b3, and 3.6.1278b9-11), we come
full circle to the origins of the polis (the political community) and why it is authoritative.
Again the reason is simple. Aristotle says it is because human beings have speech
(Politics 1.2.1253a9). Speech, in humans, serves "to reveal the advantageous and the
harmful and hence also the just and the unjust" (Politics 1.2.1253a14-15). The ability to
distinguish between the just and the unjust is said by Aristotle to be "peculiar to human
beings" (Politics 1.2.1253a14-15). Regarding justice, Aristotle has also said that without
it the political community cannot exist (Politics 3.12.1283a19-22). Thus the
interdependency of the political community and justice becomes clear. Because justice,
through law, habituates citizens of a political community to be just, therefore the political
community becomes the soil or essential habitat for the development of human
excellence.
Given this, the political community is to be understood to be essential for human
beings, for without it, it is highly unlikely that human beings would be capable of
reaching the peak of moral or intellectual excellence. (Let us be clear here, being just is to
be understood not merely as being lawful but also as embracing the moral excellences
(see N.E. 5.1.1229b12-19)). Yet Aristotle says this is only the precondition for the polis
and not its end. To this point, Aristotle say, although the political community or polis
"comes into being for the sake of living, it exists for the sake of living well" (Politics
1.2.1252b29-30).

The implication of Aristotle's argument is that although "living well" is the real
end or final purpose (i.e., telos) of the political community, nevertheless it is true that
human being need to share a life together. He says that humans "join together, and
maintain the political community, for the sake of living itself" (Politics 3.6.1278b23-25).
He continues,
For there is perhaps something fine (kalos) in living just by itself, provided there
is no great excess or hardship. It is clear that most men will endure much harsh
treatment in their longing for life, the assumption being that there is a kind of joy
inherent in it and a natural sweetness (Politics 3.6.1278b25-30).
It is this "joy" and "natural sweetness" which is inherent in mere life that signifies the
importance of the origins of the polis, for as Aristotle says, it comes to be for the sake of
life. Thus, the polis is not only necessary precondition for "living well," but because of
the "natural sweetness" of existence, it is the soil out of which humans flourish and grow
toward their peaks of excellences--both moral and intellectual.

Return to the account of the varieties of courtsaliens courts and small claims
After Aristotle elaborated on the form and varieties of the homicide courts, he then talks
about the alien courts (1300b30). Of this court, Aristotle says there will be two aspects:
first dealing with the disputes between alien and the second dealing with disputes
between aliens and citizens and subjects of the given political community (1300b30-33).
Now the second court (dealing with disputes between aliens and ones citizens and
subjects) seem very reasonable, but the second on one level seem to be the meddling into
the affairs of others. But one must understand that in Ancient Greek it was very common

for there to be a large amount of exiles who lived in other polises and were not citizens or
even formally subjects of the polises they were residing in. And given this factor, it made
sense to have courts for this group of people to allow them to settle disputes.
In some ways this idea of a court where non-citizens could address tortuous
disputes was the logic between the Alien Tort Act of 1789 under US Law. The act was
made when lands west of the Mississippi were owned first by Spain and later by France
and neither Country had functioning courts in those areas and this often led to disputes of
persons from those territories unable to turn to the courts for resolution and often settled
things privately, and such private justice led to violence and disturbances so upsetting
opinion of leading opinion of American political class to propose this legislation to offer
means for parties of those alien territories to have access to courts. But after the
Louisiana perchance the need for such courts for a long time ceased and the provision
became dormant until the 1970s when human rights activists saw this dormant law as a
means to help victims of human right abuses to get their claims heard by a US court
even if the court was often ultimately powerless to force the guilty state actor to comply
to the decision of the court.
But again the idea of the court to allow aliens to settle disputes among themselves
again reaffirms the need to keep harmony and justice within the community lest the
forces of violence and disorder enter in and lead to wider and greater violence when
others start taking sides on the issue and such things lead to factional conflict that could
lead to civil war and/or revolution and a possible change of regime.

After the much briefer discussion of the Alien courts, Aristotle finally mentions the eight
type of courtthe one dealing with small or petty things (1300b33). This court is to deal
with disputes concerning small transactions involving a drachma, five drachmas, or
slightly more (1300b33-34). These courts, he says, usually dont need a large multitude
of judges (or jurors) to reach a settlement (1300b34-35). Now such a court very much
resembles the small claims courts under common law systemswhere there is no need
for a jury to be called and that the judge alone acts as mediator. Now in the 1980s, such
small claims courts became the form of entertainment with shows such as the Peoples
Courts and Judge Judywere the complainants allowed (often by signing a legal
waiver and an agreement to abide by the ruling) the often former judge hired by the
producer of the show to decide on their dispute.

The political courts


After raising the 8th small claims court, now Aristotle again returns to a court he earlier
mentionedthe court that deals with political issues. He does with saying lets us speak
of the political ones [courts](1300b36). Now the political courts are the one that is
concerned with factional conflict and how they arise in the community. Aristotle says
here such conflicts arise when matters [of the political community] are not handled
beautifully (kalon) and change of revolution occurs (1300b37).
Now the role of such courts is to deal with the problem that ill-governance within
the regime can produce and to deal with such problems. We can see from this that at
least three concerns arise from such courts1. addressing the issues that lead to factional
conflict, 2 addressing actions of the regime that were executed poorly, in such factions

are formed that threaten the regime, and 3 addressing the issues or persons that threaten
revolution in the regime. Now our modern liberal sensitivities are put off by the idea that
political activity and civic agitation would be seen as a criminal thing. But when we look
at this we must remember that Aristotle clearly distinguishes the political court from the
criminal one and that such a court need not be seen as a court to punish, but to correct and
prevent the errors to cause greater harm that a civil war and revolution might lead to. The
failure of a political regime to have such courts would point to a flaw in the regimes
ability to preserve itself.
Now if one looks at the American regime, we see that this function of political
courts are seen to be found in both the Judicial Courtsthe peak of which is the Supreme
Court of the USand Congress via its oversight and investigative powers. One thinks
of the Watergate Hearing of the 1970s or the Iran-Conra Hearing late 1980sto see the
way the US Congress investigated what it saw as actions by the President of the US
which was thought by many as threatening the regime. Now out of those investigations
and because of them, legislation was passed that changed the law governing the President
and thus attempted to reform the regime. Here is how one could understand the operation
of what Aristotle is speaking of here in our modern context.
So the idea of a political court that addresses regime matters in order to avoid
either civil war or revolution very much shows the concern for justice that is at the heart
of political activity for Aristotle. The need for justice and how the rule of law bring
about a moderating effect on the regime is understood as the way justice is most
effectively approached has been already dealt with Aristotle in end of book 3 where he
has the debate between the rule of the absolute good rulerthe pambasaleiaand the

rule of law (see Politics 3.15-18; and Bates 2003, 163-211). There we ends with on the
surface appears to be an aproria (an unresolved dispute) between the claims of the
unlimited and unrestrained rule of an absolute just king versus the claims made for the
rule of law (again see Bates 2003, 163-211). But here in Politics 4.16 we are left with
only this very brief mention of the need for a court to address such disputes which
threaten the cause of factions that can lead to what can not only undo the regime but the
very political community itself.
So let me give you all now a chart of all varieties of courts Aristotle has given us
here so far in the discussion.
Type of Court
1

Auditing Officials =
Administrative Oversight
Court
Injustice regarding
common matters =
Criminal Court
Concerning matters
concerning the regime =
Political Courts
(addressing political
questions)
Setting Disputes between
Officials And Private
Persons over the imposition
of Fine = Arbitration Body
Private Disputes over a
certain amount =
The Civil Court
or Torts in common law
For Homicides

For Aliens

2
3

Classes of Court
Not addressed in Politics 4.16
ought to be divided between the type of
officials in question.
Not addressed in Politics 4.16
1. addressing factional conflict
2. addressing matters handed poorly
3. addressing revolutions or change in
the regime
Not addressed in Politics 4.16

Not addressed in Politics 4.16

1.
2.
3.
4.

premeditated homicides
involuntary homicide
justifiable homicide
once Exiled subject accused of
homicide
1. alien disputing another alien
2. alien against a citizen or subject

Concerning Petty and


Small Matters =
Small Claims

Not addressed in Politics 4.16


fewer judges needed than other courts

And with this, we seem to end the discussion of the political courts and thus the different
variety of court, Aristotle will now go to discussing how courts are composed.

How Courts are to be composed


Now given that it immediately follows the discussion of the political courts it would be
easily to assume that this is in connection to those courts. And the fact that the Greek text
does not offer us a separate paragraph to suggest this is a break from what came before
might. But given the general aspects of his points echoes how he discussed the selection
process of the offices in chapter 15, it would be safe to assume this is about all the courts
and not only about the political courts.16
Now as we turn to the text, we see that Aristotle says about the modes that a court
can decide. He say on such matters all decide on all the matters which have been
distinguished having been selected by election or by lot, or all decide on all having been
selected in part by lot and in part by election, or all decide on some of the same matters,
these being selected on the one hand by lot, on the other by election (1300b39-1301a1).
Richard Robertsons translation offers perhaps a clearer picture of what is going on here:

16

Here I disagree with Simpson (1998, 360-361) when he reads the discussion of

selection of the court is regarding the political court not all the courts per se.

Either they must all judge about all the matters distinguished and be appointed by
election, or by lot, or all judge about all the matters and be appointed for some of
them by lot and for others by election, or about some matters, the same ones be
appointed some of them by lot and some of them by election (Robinson 1995,
123-124).
Thus we get four distinct modes here. Aristotle even notes that fact (1301a1-2). He then
notes you get four more when some of the citizen rather than all.17 Aristotle finishes off
the paragraph by saying:
For those adjudicating may also be selected from some and decide on all matters
by election, or be selected from some and decide on all matters by lot, or in part
by lot and in part by election, or some courts that decide on the same matters may
be made up of persons selected both by lot and election. As was said, these modes
[are counterparts] to the ones spoken of. Further, these same ones may be
conjoined I mean, for example, some courts may be selected from all, some
from some, and some from both (in which case the same court would have some
selected from all and some from some), and either by lot or election or both
(1301a2-6).

By this time one will be rather confused as the text leave us a bit perplexed. As if
one has been following what Aristotles text is saying you have to scratch your head
17

This line is added to Aristotles text by Newman (1973, IV:30-31; 273-4). Robinson

(1995 [1962]) agrees with Newmans amendment here, as do Rackham (1934), Lord
(2013), Simpson (1997), Reeve (1998) and Sachs (2012).

about the four modesas it is hardly clear what they are.. Here Peter Simpson offers
some clarity for here:
For there are again three terms: from whom the courts are chosen; about what
matters they decide; [and] how they are chosen. There are not, however, three
differences in each mode. The second difference, about what matters the courts
decide, can only be taken in one way, that is, wholly and never partially (always
as all and never as some). For all the matters must have someone to divide
them in every regime (one cannot just leave some cases unattended to). Hence the
number of modes will vary only according to the differences in the first term, and
in the third term, whether appointments is by election or lot, or election and lot.
Hence there will only be nine modes: three when appointment is from all about all
matters, three when appointment is from some about all matters, and three when
appoints is from all and some about all matters. These are, therefore, the modes
Aristotle goes on to lists, save that he gives four modes rather than instead of
three. The reason is that appointments by the combination of election and lot can
itself happen in two ways: either some courts are appointed and others by lot, or
certain courts are appointed by election and lot at the same time (some of their
members by elections and others by lot) (Simpson 1998, 360).
Here Simpson solution helps us figure it out. But what happens if Simpson is wrong
about the middle term (what matters they decide) and there is not only all but a court
might have a limit on what it can decide onso the some Simpson excludes is still a
possibility and if it is a possibility then eighteen not nine that Simpson suggests. Or for
the modes Aristotle does not bother take into consideration that middle term because it

really has no effect on the working of the two others modes which share a similar
character.

The intersect between mode and regime types


Aristotle thus ends both the discussion on the adjudicative or judicial offices with attempt
to sum things up and then suggest the connection between the modes of selection and the
character of regime the form support or inclines towards. So in the last paragraph of both
the chapter and book 4 Aristotle says:
How many modes there are for courts has, then, been spoken of. Of these the
first those selected from all that decide on all matters are popular. The
second those selected from some to decide on all matters are oligarchic. The
third are characteristic of an aristocracy and a regime those selected in part
from all and in part from some (1301a11-18).
Thus each of these modes favors certain types of regimes. He says the first mode favors
democratic rule. Here again he end this chapter on the courts the same way he ended the
chapter on deliberation (chapter 14) and the offices (chapter 15) on this question of what
mode chosen and its connection to a specific type of regime.
What is interesting in looking at this text is that in the first and second example,
the sequence is first the mode and then its regime character. In the third example, the
sequence is reversed. Why he did this one cannot see. But in the previous two chapter he
often started with the regime and then mentioned the mode. So the third example is only
out disjointed in regards to this chapter but in accords with how the sequence went in

other chapters. Perhaps this points to what this chapter doesnt address that the others
do?
Now Simpson makes a very interesting comment that what is the implication of
his various attempt to connect the different modes of selection in his accounts of not only
this discussion regarding the courts, but also earlier in the offices and in regard to the
deliberative element as well

What how the judges are selectedthe missing discussion


But then Simpson notes something at the start of his commentary on this chapter by
raising a very important fact that one really does not notice until one looks at what
Aristotle has said here and compares to what he said earlier about offices. Simpson
notes:
An interesting puzzle here is that nothing is said about the other term, prominent
in the proceeding chapter, of whom does the appointing. But in fact that term has
always been fully dealt with there [chapter 15]. For courts are sort of offices, so
that what was described there about the ways of all, or some, or both all and some
appointing to offices will simply carry over to what is said here about ways of
appointing to the courts from all, or from some, or from both all and some.
Aristotle did, anyway, after this fashion in chapter 14, where he mentions choice
by election and lot but leaves the determination of who those are who do the
choosing to be understood from the regime he is then talking about (whether the
all of democracy, or the some of oligarchies or the all and some of [aristocracies

and regimes18]). In chapter 15 he made this explicit since then he was not talking
of the deliberative in general (as he was in chapter 14), but specifying one
particular function of it, the selecting of offices, and showing how the handling of
this function can vary according to the all, or some, and all and some of the
several regimes. So in the case of the courts too, it would now seem sufficient to
specify only what is proper to them, namely what is meant by them or what their
powers are (as he earlier specified the deliberative and the offices) and how one
can, assuming for each regime its own ruling body, vary their distribution among
the parts of the [polis] (Simpson 1998, 358-359)
Given this point Simpson raiseswe would have to address the twelve modes for the
how a court official or judges would be selected. And they would be the following:
1. All selecting from all by election
2. All selecting from all by lot
3. All selecting from all by both election and lot
4. All selecting from some by election
5. All selecting from some by lot
6. All selecting from some by both election and lot
7. Some selecting from all by election
8. Some selecting from all by lot
9. Some selecting from all by both election and lot
10. Some selecting from some by election
11. Some selecting from some by lot
12. Some selecting from some by both election and lot

18

Simpson 1998 here uses the term mixed-regime, which I fundamentally disagree is a

specific regime type. See Chapter XX above for the argument; as well as Bates 2003,
102-121. As the Greek speaks of aristocracies and regime it put those terms here rather
than his mixed-regime

This does gives us an additional level of complexity and allow the variation within the
given variation of regimes to radically expand in variety. But at the same time all of this
complexity does leaves a reader perplexed, very much in the same way one was at certain
sections in our discussion of both the deliberative element and the offices. Here we with
this sense of how complex this process is, ends the examination here in book 4 of both
the adjudicative or judicial element of the regime and the whole discussion of the
functional elements with the regime.
Yet here all of these feeling of frustration might be because we are attempting to
speak in a complete systemic way about such matters of prudence and matters of accident
can never be as sooth as one can speak of the things that are also so in nature and in
ontology/metaphysics. This is because the realm of political is the realm of action
(praxis) and the realm of praxis is the realm of possibility and contingency rather than
that of actuality and eternality. And the understanding the nature of the regime, the
politeia, is very much tied to whether something that is in the realm of human
contingency and arising out of the artfulness of human creativity is not being somewhat
distorted when he try to give it an eternal and constant character. The fact that all the
parts within and make up the regime are themselves aggregations of other things and
actors (both individual and collective) make the dynamic we are trying to investigate both
very complex and very hard to systematize.
So the descriptive approachoften in todays philosophical language one would
call phenomenologicalof this chapter and the previous two chapters, adds a further
dimension to the overall model of the regime, politeia, of this book of the Politics. And if
we then reexamined the sub-variations of the regimesespecially in Politics 4.4-4.6, we

will find that Aristotles regime model is as complex and dynamic as any contemporary
political science model to attempt political system. And this is why closely reading and
coming to terms with Aristotles text would very much help todays students of
comparative politics in that we see in Aristotle ways to interact a systemic model with a
descriptive modelsomething that most contemporary political science treats as an either
or issueeither you give a systemic approach or a descriptive one and never the twain
shall meet. Aristotle here in he give us that which contemporary political science thinks
impossible.