Nomos in Attic Rhetoric and Oratory

Author(s): C. Carey
Source: The Journal of Hellenic Studies, Vol. 116 (1996), pp. 33-46
Published by: Society for the Promotion of Hellenic Studies
Stable URL: http://www.jstor.org/stable/631954
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He lists as examples witnesses. oaths and laws.C. 3 Although Anaximenesrecognizes a similarcategoryof proof (Rhet.146 on Fri.3 Formally.'Non-technicalpisteis in Aristotle and Anaximenes'.M.' The aim of this paper is to examine Aristotle's presentation of the rhetoric of law in the Rhetoric in comparison with actual practice in surviving forensic speeches. suggests that Aristotle's item 'law' correspondsto Anaximenes' item 'opinions of the speaker' and that both reflect an original item enklema. W. Isai. Lys. For Aristotle therefore law is. Accordingly. and the general similarity of that advice to Aristotle's suggests either direct influence or a common source. 1355b35 ff.g.J.A. 2. contracts. a paradox which has profound implications for his treatment of law in oratory. entechnoi pisteis or 'artful proofs'. 4 Witnesses.K. also offers advice on the manipulation of argument from law. For he lists laws among the atechnoi pisteis. Problemsof applicationare noted in passing by D.64 oKa g ottoI vcpi-Te ppTcp?. It was up to the individuallitigant to provide his own excerpts from the laws in orderto prove his case. and rhetoricwhich aspires to be of use in the courts must offer the potential litigant or logographer guidance on the way to deal with questions of law. 'the statementof accusation'in their shared source. D. Rhet.4 but this merely reflects the fact that witnesses were requiredto depose in person at this period..The sophists (Cambridge 1971) 125 f.Alex. The proceduresfor the citation of laws inevitably mean that the use of laws by litigants I See W. for the ethical question. while laws were read out by the clerk of the court.o: laws. and will be given more cursory treatment.Journal of Hellenic Studies cxvi (1996) pp 33-46 NOMOS IN ATTICRHETORICAND ORATORY FORENSIC oratorymust of necessity deal with the subject of law. tortures and contracts.It is easier to suppose that the two authorshave independentlyexpanded a simpler schema which they have inherited. E. since nothing is said by Anaximenes in any of his referencesto this pistis to indicate that it is to be confined to any one or other aspect of the factual or other issues dealt with in oratory. So laws are introducedin court exactly like other documents pertainingto the case. the formulae tended to coalesce. so that witness depositions were read out by the clerk. he adds two more items. those means of persuasion which are the province of rhetoric.. Anaximenes' discussion of the use of law in forensic oratoryis both more brief and less systematic. it is interestingto note that his four types of 'supplementaryproof do not include law. 'Aristotle on the rhetoricof law'. at least in forensic contexts. 2 Arist. I.g. However. Worthington(London 1994) 130-150. 14.gxapruptac.160. Aristotle Rhetoric I. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . little attention has been paid to the more basic question of the soundness of his advice. In the late fifth and early fourth century the formulae for introducing laws differ significantly from those used for introducing witnesses. e.M. 5 See e. vcywvoOTI tctTa. his inclusion of law among the artless means of persuasionreflects current practice. commonly ascribed to Anaximenes of Lampsakos. Aristotle devotes some space to this issue in the Rhetoric. Kcitt6v v6gov. Lys. The fourth century Rhetorica adAlexandrum.). at least. 10 f. AJP 112 (1991) 5-28.108. I Aristotle begins his discussion of the law in the Rhetoric with what to the modern reader at least is a paradox. When he returns to the subject of artless proofs in 1375a22 ff. a means of persuasion.forensic or otherwise. Once the procedurefor witness testimony was altered in the 380s..in Persuasion ed. e. GRBS31 (1990) 397. 13. a commentary(New York 1980) 317 f. I find it difficult to accept the identification. Grimaldi S. Aristotle divides the means of persuasion into two groups. Guthrie. This content downloaded from 193. Although the morality of Aristotle's advice has been debated.Therewere no lawbooks. Harris 'Law and oratory'. Mirhady.16 Kac got T6c. 1428al6 ff. 140.C.5 cv6yvo60fgot r6v v6ov.2 and atechnoi pisteis or 'artless proofs' which 'have not been provided through us but were already in existence'. Mirhady.g. and therewas no text of relevantlaws availableto the jurors.torturesand oaths.5 with the result that there was no perceptibledifference in the lawcourtsbetween the law and depositions.

el. v6go. tfvTv V OOiK else in the Atheniansystem.137) that we can dismiss occasions on which emotional appeal obfuscated legal considerationsas rare aberrations.BICS xxxix (1994) 95-106. individual and common. 6vTa. There are two types of law. But the penalty in such cases consisted of damages to the prosecutor.. r6v 68t KoIv6v. R. X^yo6t v6gov r6v tofTov Tov utv i p6O. that is to prove that the speaker's conduct in the matterunder dispute has been. indicate that the jurors did feel bound by the law and that for the most partthey consciously sought to make their decisions conform to the law.at 1373bhe says: v tI8ov. Firstly. tortures etc. in accordancewith the law. tIov gv r6v tidC6Coi.once convinced of the relevance of a law to the subject at issue. We are told that the penalty for introducing a non-existent law was death. That the jurors might allow other factors to outweigh the law indicates only that its authoritywas not absolute. and the strenuousefforts of Athenianlitigantsto prove that the law supportstheir stance on the subject at issue. laws were protected procedurally in a way which distinguished them from other atechnoi pisteis. CAREY 34 approximatesthem in some respects to the status of depositions etc. Harrison.W.However. 8 For this and other clauses in the dikast's oath see A. though not with complete consistency.tob. Smith. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . Kai 6 I discuss this issue in 'Artless proofs in Aristotle and the orators'.a'Tof). and also in cases of contracts for similar reasons. since both the challenge to torture and the torture session itself would be witnessed. This content downloaded from 193. Let unjust action be defined as doing harm voluntarily contrary to the law..The law of Athens II (Oxford 1971) 48. The administrationof justice from Homerto AristotleII (Chicago 1938) 152 ff.8 Law is thus treated in an ambiguous way.] 26.J. It is of course true that the litigant in citing a law seeks to persuadethe jurors of its applicabilityto his own or his opponent's conduct. As with so much tob. we also find speakersusing laws to supporttangentialissues.C. Todd. and. 6'tortv p? r6 &8iK?V 6 v t80o.146 on Fri.7 Procedures were in place to prevent abuse in relation to other atechnoi pisteis. enforcement(by legal action) was presumablyleft to the volunteer. For false witness there was the dike pseudomartyrion. Formally it is treated as a means of proof. rcpiopav. The juror's oath. intended to create hostility toward the opponent) or to overwhelm the jury with a seemingly compelling array of legal support. or the opponent's has not been. for instance to demonstrateallegations of the sort classified by rhetoricians under the heading diabole (that is. 6 8 Kicov6. Law is privileged in its protection by the death penalty. It is also privileged in the decision-making process.108. S.tatrco6f TO TO v KicaO'Ov ypactgvov 8 6oa &ypax(a7ap6 mca v Xyo) 6t t8Iov cKOIVOV iroXIrEGovTOX.24 icKat06vatov Xtv ObpKvivat Trv rl?ufav. The shape of Athenian law (Oxford 1993) 60 underratesthe force of law when he attributesto it only a persuasive power. like depositions. not that it did not take priorityover other considerations. He defines law at Rhet.Here I am in general agreementwith Harris(n.160. of the greaterapplicabilityin context of one law ratherthan another. feel that its authorityin court is merely to suggest a response. 6ioXoyEi0aI 68oK?Ei. but it is given a status quite distinct from other means of persuasion. this action would also prevent abuse in cases of torture. by common all the unwritten laws which seem to be universally agreed.. For althoughconsiderable space is given to laws relating unambiguously to the main issue in order to demonstrate substantivepoints. Bonnerand G. KoIv6v 6 Tor6vKccTdOAcv. form part of the speaker's strategy. 7 [Dem. 1). By individual I mean the written law which forms the basis of the constitution. & toDpfTou. It is important however to distinguish between the formal presentation of laws and the role of law in the courts. as follows: 6 PXTCtV K6vtcairap6cr6v v6gov..t6v ti. C0pipgtvov 6Cypa(cov.t6v 8t TypacLggvov. OV)K6vra v6gov 7ap6caXroTai. where conflicting laws are cited.either the opponent or ho boulomenos. Aristotle subdivides law in the Rhetoric into different types.But this does not mean thatthe jurors.Thus the law forms partof the process of persuasion.6 Laws.TobTou. 1368b5 ff. At 1374a25idios nomos andgegrammenosnomos are againidentical.C.R. though I do not share his belief (p. since the jurors swore to vote according to the laws and decrees of the Athenian assembly and Boule. & 6VTOVv6cov Tt6IV &6yovTa.

VcA 60. (tc&[ttv ~* XypcgtJLv(Xt(dL6' IIRhetr 1374a1 8 if. 6)1Iargue that Aristotle exaggeratesthe distinction between artful and artless proofs. Aristotle is not. he proceedsto analyse the treatmentof law in the context of the lawcourtsaccordingto a simple schema for dealing with such proofs. 1354a1 I ff.160.NOMOS IN ATTIC RHETORIC AND ORATORY 35 I termone type of law individual.108.. E)goXnf86a t iyof)vtat.D.commonbeing that which accordswith nature. 1) 287. This content downloaded from 193. and 1375a33 ff. requital of benefactions. tcu0tctX 6' at(tv'rt tr6X6cptv EAT)KaX 6ctFEfltotCiV t6V F-T5iiotfaCCvta tX&tv(j)1noU'(Y(Xvtl lK Valvc TOt. E. as does 1374a23 ff. dcoTKE ir6xvta.ig~l6vovXpf'iofkxttot."0 This would appearto identify common law with rules of conduct. 1373b18 f. 14Rhet. o168va 6ofUXOVf~0fxt.Lys.Grimaldi(n. tativ). irept wbtww6cXX6icattot. in classical Greece' in Exegesis and argument:studies in Greekphilosophypresented to Gregory Viastos.60ev cTpiiTct cd 6ti yYcp dcnoXo-Xittxt oi5iccpdct6vtzypccov.Uov. In 'Artless proofs in Aristotle and the orators' (n.'2 But Aristotle also cites Alkidamas' maxim that nature made no man a slave.3 6cvci Xx0b.. he exemplifies common law with reference to the famous speech of Antigone justifying her decision to bury Polyneikes in contraventionof Kreon's decree.. 6. for they are not in his opinion the real business of rhetori.P. ica0' of). 12Thuc.' The orator's role is to use rhetoricalproof (specifically argument)to maximize the impact of his own artless proofs and to minimize the impact of his opponent's. Since Aristotlehas characterizedlaw as a species of artlessproof.146 on Fri. incxpdt6v to1DKptovTo. 'AvTty6vi9t. in the second. Rorty.'tXeu6tpou~. have a lacuna after 'AXKI66Jix. tc6o tr at ri ftv &pXf~t6vtov 6nKpo6caeicacttOw v6J. Mourelatos. d6ii. 'Was there a concept of ksypbo4o.'3 Evidently thereforehe has in mind something broaderthan non-statutoryimperatives.R. 13Rhet. itriofrjicrV'.tY 8g66crtx &6u&o. 71If. tv t(p MeGarvuoxiajXtyFl 'AXKi6ci&ci. More precisely." where he lists gratitudefor a good turn.1375a34-b2 t6 gtv rutp-uct.This means underminingthe general validity of such 9See in general M. This agrees with Perikles' famous formulation of unwritten laws in Thucydides as rules whose breach results in informal ratherthan formal sanctions.2. the Mss.anothercommon. gXtatx o.10 icKatoto ~68ucougtwvov I"IptOXta itot pOaO apoatvtat 1~gtVMupltdwv6cae4Pofivt(ov. and with the (possibly) dependentpassage in Lysias 6. v6got. Ostwald. (Katvr6 4finrv y6cp tx v t?i IoOoKtou. since the distinctionbetween written and unwrittenlaw does not play a majorrole in the Rhetoric. particularlyinterestedin the artless proofs themselves. as distinct from individual law.37.ec4C6cDxt.K(at K(XIr3orlOllt& hac6cXka otov6iccir). 10Rhet.N.6 7apxvoI1oolev. A. ftiri 8t ow 6tKcttf ov K(Xltdwv~68iov Av 8&Oo @cpoxox). Lee. The definitions at 1368b and 1373b are not entirely compatible as formulated.9 In the first.the quotationis supplied by the scholiast. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . wcypaggtvot. helping friends.individualbeing thatwhichis definedby a groupwith referenceto themselves.. What Aristotle meant by unwrittenor common law is never fully clarified. 't6w 6' 6ryp6L4ov60o Nativ rt6rj. t6c 6t toi t6tou v6goio icati'ypa[t[tvoix txXtgga.. which quotes Perikles to the effect that one should obey the unwrittenas well as the written laws. dt gLtvEticcxtoib8t7cotcg. In 1373b7 ff.KcXtg6cXltxr ccitO)w 6aot tc tir' x4eXtQctdwv ciccvaticat 6Got&ypaoot6vtE. For our present purposes it is the first formulation which matters. 70-104.4)tXot. oib8'6 icotv6. dcyp6coot.. for this is the definition which forms the basis of Aristotle's guidance on appropriateuse of the law in oratory.The unwrittenlocal law is of no further significance for the treatise.consistingof two categories. oaX~fMvrv 6goXoyoi)gMvrv Otpouatv. once he has dealt with law he abandonsit.ed. of course.&Td tY t6x irpoaYogtXofjvtc. of 6t X~ypocgg&i~oi itoXX6ii.unwrittenand written. 0r-6. v6giov &XX' 90ooxVi.v6gto. unwritten law is a species of individual law. as with the other atechnoi pisteis.lrcpi dwvjiv oi v6liot &yoptio'Lxn-vcTPrjtat. unwritten law is identical with common/sharedlaw.M.

. the specific action at issue' gives an inferiorsense. Grimaldi(n. Crit.. who taught his pupils to argue the same case from diametricallyopposing sides.C. his treatment of laws at 1443all ff.Aristotlebegins with argumentsto adopt when the law is against us. Subservience to impersonallaws. is one of the features which distinguish the Hellene from the barbarian. supports our opponent.For my present purposes.Whateverlogic may say. equity. tortures and oaths at 1431b20 ff.they are still drawing on an enormous reservoirof respect for nomos.'7 the rhetorical force of the Crito as part of Plato's continuing apologia for Sokrates derives in no small part from the ideology of obedience to nomos. but offers no argument. tj 16 There is a textual problem at 1375a28 f. Even when speakers misuse the laws. we encounter a problem. At first sight this looks like a promising approach.146 on Fri. any theoreticalgain in force of argumentfrom an outright attack on the laws is immediately counteractedby a disproportionateloss in the area of ethos.It is standardpracticeto associate 15 Rhet. the actual fact.160. newly proposed laws are subjected to rigorous criticism through the graphe nomon me epitedeion theinai. Rather. in general. This content downloaded from 193. The same approach is adopted by Anaximenes.to take 7Cp&7rpcWn which took place. there appears to have been a fundamental inhibition against frontal assaults on the authority of law. Inevitably. the word nomos itself. 50c-53a. 1etKtoV 4. to which it appeals.v6go. This attitudeis not merely Athenian but more generally Greek. in any form.But in fact the value of what Aristotle and Anaximenes have to say lies. less in the direct applicability of the advice than in the insight it gives theeti attitudeto law. I agree with Xpratov itKCeatrpo1. interpreted strictly. as distinct from the authorityof a single figure. It is importantto rememberthat the speakerhad only a limited amountof time available to present his case. Kaic Ttoi. (where they figure in his advice on the anticipationof the opponent'scase) is very similar to his treatment of depositions. 6 yEYpagiLtvo. This is a rhetoricalas well as a mnoral problem. To judge from surviving oratory. and written nomos. however. commanded enormous respect. and accordingly Aristotle proposes that we should utilize the koinos nomos and base our argument on epieikeia. and justice.l Presumablyhe does not here mean 'when we are patentlyguilty' or 'when the person we are accusing is patently innocent'. applied to written law or customs and values. Mss. 1) objects to the translationof tdv pgv tvxvrTfo. and that he faces an opponentready to exploit any vulnerablepoints in his case. 1) 396 in preferringthe second of these two readings. and the positive is therefore to be preferredto the comparative.It reflects a strandin Greek rhetoricwhich was represented for instance in the teaching of Protagoras. all that mattersis that epieikeia is offered as an alternativeto gegrammenosnomos. into some areas of ambiguity in the Athenian In advising on the use to be made of law in oratory. he appears to have in mind a situation in which the law. 8icKactipot. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . and which in surviving works is representedby the Dissoi Logoi and the Tetralogiesof Antiphon. CAREY 36 opponent and stressing the validity of such proofs where they proofs where they favour thethe favour ourselves. Although Aristotle makes much of the distinction between the different types of nomos. But we do not find assaults on statute law as a category.108.His alternative. when they cite irrelevantlaws or seek to distorttheir significance. 1432a33 ff. 1432al4 ff.. 17Plat. however. In this context the speakercannot afford to presentan ethos of which disregardfor nomos is a salient characteristic. icKat ?incatortpot. it would appear to be in our interests to subvert the authority of law.the context requiresa firm distinction between tr6 itEiKc.'6 When we attempt to exemplify Aristotle's advice from contemporary oratory. and editors are divided between t(p KOtVQ)xprJUTtov Kat toi. and rp KOicotV) Mirhady (n. though (as was noted above) he does not explicitly classify laws as proofs. 1375a27 ff. as 'when the written law is opposed to our case'. The question 'that as npxW(xa is not whether the law is relevant to the subject under dispute (for throughouthis discussion of nomos Aristotle clearly envisages the citation of law by one side or the other) but which side the law favours. In such a context. Although few Athenians would go as far as Sokrates in Plato's Crito in obedience to the laws.

view of the hostility of Athenianjuries to anythingresemblingprofessionalismin legal matters. At Dem. 41). 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . not mere semblance.'8 A second line of argument offered by Aristotle is that written law is subject to change. 6pKO. Quite the reverse. The fifth is that it is a sign of moral superiority to utilize the unwrittenratherthan the writtenlaws. not the speaker.. while common law. In real trials. argumentis that it is the dikast's task to distinguishbetween true and specious justice. and the preference for physis.160.Moreover.and the ease with which hostility to this stereotypecould be aroused in court.g.40 f.for to elevate one type of nomos over anotherin this way is in effect to reduce the validity of the non-privilegedcategory. Aristotle's third. it is actually difficult to exemplify in oratorical practice the advice which Aristotle gives.fourthand fifth topoi may be takentogether.41 in fact quite the opposite use is made of the oath. 10. 'AOrivalot. can be seen from [Dem. closely related. This content downloaded from 193. 39. As will be shown below. which is justice. & &v6p?..This devaluationof writtennomos is most explicit in the third line of argument. irrespective of the date at which the laws referred to were enacted. For the general compatibility of oath and laws see e.The scope for exploiting the antithesisbetween change and continuitywas thereforerestricted. the dikasts' oath does not oppose law and justice. Not surprisingly. The fourth. None of this is to be found in the orators.] 35.not surprisinglyin impression of deminotes.a bold paradoxin which the status of writtennomos as nomos is challenged.. The antithesis between nomos and physis. obedience to the statutes is characteristic of the good litigant. would probably suggest the sophistic movement to the average Greek. 8Dem.. which was probably typical of Athenian attitudes in general. the orators do not in the citations of laws or their general references to the laws reflect this awareness.If the argumentfrom fixity and fluidityseems unhelpful. Aischin. being the product of nature (physis).41 xnte caciKcaTdT1V xIKaloT6ctTlV YVy6)v Kat KaTictx icKatKaadc Tfv To'itou 7npo. Aristotle's first argument in support of the application of epieikeia rather than the written law is that this is what is meant by 'using our best judgement'. written law is not just and does not performthe function of nomos. The third argumentis that justice is something real and beneficial.146 on Fri. but at the same time individual laws are felt to reflect the antiquity of the lawcode as a whole.ogoXoy(av tyfb gv gftpi' ti6v. there was more advantage to be gained from evasion of issues or straight falsification of the facts than in undermining the laws. and Lys. for there is a tendency to associate laws with the name of Solon.since all rest on the superiority of unwrittenlaw as being more just. But although Athenians had personal experience of the legislative process. that deminotesis a characteristicof the opponent. The persistence of the stereotype of the sophist throughthe fourth century. and therefore create an cleverness. is of eternal validity. 5tojau . the laws are the product of legislation involving ordinary people. that law and just judgement coincide. not fluidity. tg6(x6caT?p?iVTgiRVOtKiodT6V v6pov . so that they knew in practice that laws could and did change. The nearest parallel from the oratorsknown to me for Aristotle's downgradingof To v66olY. KatJKaTd TO.The effect of all this was to provide the laws with a patina of antiquity.32 (n. 39.to suggest fixity.8 tc6v 6pKvo)V i). in fact.NOMOSIN ATTIC RHETORICAND ORATORY 37 oneself with observance both of moral rules and of statutes and to dissociate the opponent from such observance. 3. There is a 'doublethink' at work. nor do real speeches on the rare occasions when this clause of the oath surfaces. The last phrase here refers to the clause in the juror's oath which prescribed that in matters where there were no laws the juror was to use his 'most just opinion'. Accordingly. the point that the superiorityof unwritten law resides in its relation to physis is positively dangerous.108.the more ponderous processes for new legislation and revisions to existing legislation in the fourthcenturymade the representationof the law as something impermanentconsiderablyless plausible that it might have been in the fifth century. However. viz. This of course reflects the more conservativeapproachto nomos prevalentin the fourthcentury. But it is a general rule in the orators.

21 See especially S. OX& . Tof vfv &8tfLiaToo. we never find litigants explicitly urging the jurors to vote in contraventionof the laws. they also avoid questioningthe wisdom of specific establishedlaws. Anaximenes suggests (1443al2 ff. rather than on statute law as a category.Anaximenesadvocatesa frontalassaulton the laws where necessary(1443a20 ff. in Aischines' insistence that the law does not allow proclamationsof honours to be made in the theatre (2. this is always in the context of the applicationof a law ratherthan the outrightsubversionof a law. 'lawlessness'.44-5) and Demosthenes' citation of a law which allows exceptions (18. In the same vein. 20. Todd (n.however.160. 'negationof law'. I find no trace of the argumentin the orators. His second proposedargumentis that the jurors are not acting illegally in ignoring the law but legislating for the future. the exploitation of ambiguities in the written law.19But this is still both more subtle and more insidious than Aristotle's prescriptions. 8) 64 ff.to define means of redress rather than offences.146 on Fri. There are. though he confines himself to attacks on specific laws. e&i Oax. since it is harmful to the state.] 56.3. Cf. This content downloaded from 193. The eighth and final argumentconcerns laws which are obsolete. since at most it argues for a broad interpretationof the law while still upholdingthe authorityof law. as distinct from disagreementsbetween laws.).His advice has two aspects. d) &vp?e. 'law'. the laws are never describedby litigants as mochtheroi.) that we should praise the laws which supportour case and criticize the laws put forwardby our opponents. although it was certainly possible to question the applicabilityof a given law in a given situation. the manipulationof disagreementbetween laws and the exploitation of internal contradiction within a law.2' Accordingly.And not only do we not find litigantsobjectingto statutelaw as a type. of course.Not surprisingly. [Dem.4. Paragraphai by their very nature must appeal to specific clauses in the laws dealing with special pleas.we should arguethat the law in question is not nomos. was considerably limited by the proceduralorientation of Greek laws. Where the laws which oppose us are held to be bad (mochtheros). And of course cases of graphe paranomonand graphe nomon me epitedeion theinai must deal with questions of law in detail. Lys. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions ioKaaT6c. while the law is meant to confer benefit. this is hardly surprising.C. Again.20and it was natural that such contradictionsshould be exploited. Although some laws in Athens were substantive(inheritancelaws. 7EvaOai |L'f gi6vov icKat voglo9tTa. 20 See Dem. However. beyond the demonstration (certainly important in itself) of basic legal support for a position. Anaximenes' third point 19 Lyk. for instance. in general there was less room for quibbling about the content of a law. CAREY 38 statutelaw is the occasional suggestion that the jurors are not merely adjudicatingon the basis of law but acting as lawmakersin their interpretationof law. 1.108.9 16 Kaot gcXXT'. Again.91. given the dikast's oath. for instance).. The Athenians were themselves aware of the existence of contradictorylaws.14. Like Aristotle. exceptions. The same objections may also be advanced against Aristotle's seventh line of opposition to the law.C. Aischin. but anomia.48. as is Hypereides' speech Against Athenogenes. There is accordingly far less interest in the precise wording of laws than Aristotle's general discussion might lead one to expect. Aristotle's sixth line of argumentconcerns the exploitationof contradiction. And although we do (as was noted above) find speakers urging the jurors to regardthemselves as legislators. Lysias 10 is most unusual in its interest in the details of law.His first suggestion has something in common with Aristotle's thirdline of argument. the scope for exploitation of internal inconsistency within a law.. it does not oppose another authorityto that of the written law. there is a markedtendency for Athenianlaws to be procedural. In most surviving forensic speeches however there is not much interestin the precise details of law.38.120). The first type of argumentationcan be seen.

231354a3 1 ff 6chXiTa. This is implied in Aristotle's definitionof wrongdoing(56 &?IKeiv) at 1368b5 (quotedabove) as harm done contrary to the law. although Aristotle's taxonomy has a basis in contemporarypractice.The emphasis on function leads to misunderstanding when applied rhetoricallyto the manipulationof the form of the laws.. It reflects a widespread conception of the role of law.3 that the Atheniansobey the laws or in the assertionof Euphiletos at Lys. iKEgvou. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . but since he does not explicitly oppose the authorityof the law. v6ooV. Such a markeddeviation from actual practice requiresexplanation. 1. it cannot be assimilatedcompletely to other documentary means of proof. Again the oratorsare silent.22 A second problem common to Aristotle and Anaximenes is a failure to take due account of the form of Athenian law. both concentrateon its normativefunction..The same is essentially true of Anaximenes. First. cf.): v6go. esp. Accordingly. However.. tAvra &ioptf4?v aVrTOf). This suggestion was also made to me independently This content downloaded from 193. containing few omissions. like witnesses. in Persuasion ed.NOMOS IN ATTIC RHETORICAND ORATORY 39 is that there is no law which prevents a man from helping society. 35 f. 43f.146 on Fri.). 'Rhetoricalmeans of persuasion'. 2. Worthington(London 1994) 26-45. must allow for opposed modes of argumentation. found for instance in Perikles' statementat Thuc. his advice does not present the moral and rhetoricalproblems raised by Aristotle's approach. and that annullingbad laws is helping society. Law is a commonagreementof the stateprescribingin writinghow people shouldact in variousmatters.oaths. all of which are to be strengthenedor underminedby argumentaccording to immediate need. In defining law. The emphasis here on the role of the laws in regulatingconduct in general and not merely the processes of dispute settlementis perfectly naturalas a descriptionof the social function of the laws. Kotv6v. problems arise when Aristotle imposes on law the schema he applies to artlessproof as a category. I. He also agrees with Aristotle in advising appeal to epieikeia where a defendant cannot take a stand on the legality of his conduct (1444al0 ff.There are several factors at work. This conception of law is explicit in Anaximenes (1422a2 f.Kptvoixnvv. Anaximenes agrees with Aristotle in suggesting that we exploit ambiguities in the law (1443a31 ff. 29.23Very few real Athenian laws would meet Aristotle's ideal.His purposein this section of the Rhetoricis to exemplify ways in which the presence or absence of supportfrom differenttypes of artless proofs can be exploited by the litigant. For each category of artlessproof he offers means of strengtheningor weakening the impact of the pistis itself by rhetoricalmeans. For other examples of the rigidity of rhetoricaltheory in comparison with actual practice see C.. 1424all f. Carey.108. both Aristotle and Anaximenes ignore the fact that the laws fulfil their role largely by prescribingprocedures for obtainingpunishmentand reparation. Xpo' nOI?IV CKaaxoa. R. Within this schema laws.). As ws observed above.who approachesthe law exactly as he approachesdepositions. Aristotle may also be influenced by his own ideal formulationof the law in 1354a31 ff. the advice is the product of the theoretical structureimposed ratherthan of observationof actual practice. the treatmentof written law by Aristotle is the direct result of his categorizationof law as a species of proof. 39 f.160. 6p09. 6oa tv&Xeral. the advice on means of counteractingappeal to the law by the opponent is difficult to squarewith what actuallyhappenedin the courts. The limitationsof this approachwere noted above. and evidence from torture. 6tc ypaxgtvdrcovnpoot6TTov lLd.26 that the adultererEratostheneschose to transgressthe law. In both cases. 6' trtiv 6goX6yrma l6XE(o.G. there he tells us that good laws should be as complete as possible.UvoVv ipocrKnc T0to... Taken as a whole.37. ni TOto.Kat 6OTItX6ClcTra KaTaXflt1V by Dr. Osborne. law occupies an ambiguousposition.

1374a.25But in general the two categories are seen as governing different areas of conduct. This is not in fact a common view. 6XX6 Kait 1 06t.4. Dem. which leads both authors to pursue lines of argument which. :rirca kc:8' a oct:otei. 6ypca(ov. a similar definition is offered by Anaximenes at 1421b36 ff. o. dxmp Toib.ra)ea yp Kat T T-oVot. Inevitably.av0pomtvot.19 Xen. the two categories of nomos overlap. Iv o6tvI T:p6tot ?ovraT6v 6vO0p6rnTp .26and it is true also of the other classical reference to Perikles on unwrittenlaws. 1415b5 ff. tviot coapapatvovTre. A further factor at work in Aristotle's treatment. At Rhet. where the speakerof Lysias 6 appeals simultaneouslyboth to written and to unwrittennomos. It would for instance be a mistake to conclude from the inadequacyof Aristotle's opposition between written and unwrittenlaw that the distinction between law and 24 At 1354al5 ff.. (at Jgv o5v KOltvat mplOatctl 6f5Xov 6T &5 &6t T(cvS(moo8a(ftov. Tvao. the awarenessof ambiguityin the Greek attitudeto law on which it rests is of use. most obviously in the sphere of religion. On pragmatic grounds he accepts the importance of ethos and pathos. which is generally both more sophisticated and more abstract than that of Anaximenes. at Arist. But in general we find that Greek thinkers present these systems as complementary and mutually supportive. iv.v6got. Kaa TaTa6:dvoIgtogt6vou. cat rt: odip&.itfotecox.108. However. 12. ob) g6vov ?v :oit. X)&pQ v &8awivyE. 5tfiaov lgv o{v kTy r6 : r6T(ov RXkiarov ?0o. but as two alternative and potentially competing sources of authority. Wypaiggtvcov 8' A dayp6tov. v61oau. 18. Both (with their formulation 'not only but'/both and') presuppose written and unwritten laws as interlocking parts of a system of constraintwhich makes civilized society possible.tq. 0. 6dck' O?ti6ypa6o4p iKat icotvO v6gp vogf?arct.v. Aristotle sees written and unwrittenlaws not merely as two distinct parts of a comprehensive set of imperatives and prohibitions.24This intellectual approach is visible in the relative space afforded to the different means of persuasion. 1180a34 ff.. would carry grave risks of alienating the hearer. 67b6Twv ?OebvKcetglvoI. ola0a. E. toieiv. in6 TV9d6v0p6rovw Ke?gVOu.27Likewise Aristotle at E.t6v &v 866?et? a(xtpetv. Toi. 27 C(o v6tcwvrov Anaximenes 1421b36 ff. CAREY 40 The third common factor is an overly cerebral approach to the task of persuasion. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions .19. Infta. 28 i v6gtov yTyvovracl.5&ca?cyoouaT This content downloaded from 193.275 0xavfa?oa xtacrao c Trot. q0eiv 6t)pKcev. There Antigone sets Kreon's psephisma against the abiding and unwritten nomima of the gods.:oi. rg &Ioptov Td Kaidc v6got 0yptggtavot 6cpiv fmo&S86vct. 6gotoa obcK mrot6rrox:t Tot. whatever their intellectual appeal. VOlaotI.vo ' d &u iv. although this aspect of the advice on the forensic use of law offered by fourth centuryrhetoricis of limited value. 25 See n. Aristotle asserts that logical argumentsare the (aTcx Trfi. accat ?CIepyt:at. is the transformation of a distinction into an antithesis. but he regards these as accommodationsto the inadequacyof the hearer. so also Dem. where he associates unwrittenjustice with non-judiciary penalties and informal reward and with omissions in the written law. 1375a25 ff. r6 o6yovt.4. 6yp6(roo.. In Aristotle's case this is typical of his whole overall approach to the art of rhetoric.v xouv.N. Cf. It is familiar to us above all through the famous speech of Antigone which is quoted by Aristotle to exemplify the dichotomy.275 and Xen.146 on Fri. Lysias 6. 18. Mem.N..:yp(t0ot.The proper business of the art of persuasion is to argue.ra5aboT'TO. of For Aristotle see n. 1180a sees unwrittenand written laws as mutually supportiveinducementsto properconduct. y tv n6crio. Kat ntav' o6to). Mem. m?icKEt?K..while emotional appeals are tco Tof np6y(gaT:o. kkdc 85 rrv y 5t56aaiv oti capaPatvovTse Totb.6tKv &686va. . v6gou.and are directed7rp6cr6v itKaotf. 11. with the unwritten laws supplementing written laws and providing additional sanctions to deal with activities not covered by the written statutes.. v6gou. This approachis also exemplified by Aristotle himself in Rhet.C.28 It is difficult to see how this general consensus on the compatibilityand complementarityof written and unwrittennomoi could persist if the different types of nomos were perceived as opposed. 26 See n. tv0po(not. 12.160. This complementarityis seen for instance in the ThucydideanPerikles.

even when the law is on his side (6 gx? iKptpo c(Kaito.13 i6Tepov OTrw. [Dem. However. Katlep tX(ov T6v v6Jtov por06v).c Kaot IXeOV?KTIKlX. O)K 6yvOO)Vre. if y7c6Xcogealin6 Co) Kati tfT. O 6civ6. TT? v6ioum tetxr6eiv CKCo. they do so largely by prescribing remedies rather than by forbidding the acts themselves. v6gou. the paragraphe is based in technical irregularities in the prosecution..32And in many contexts the laws and justice are treatedas identical.179 O(atv?Ta 6' obxo. v6ooti.but they are open to abuse. but what matters is the ideology to which they appeal rather than the veracity of individual claims.. 1a9lXIKa(.] ICKatTO v6g(p Kat toit. There is a clear awareness on the part of speakers addressing the courts of a potential for abuse of the laws. Athen.3' This attitude to law is prevalent in the paragraphe cases in the Demosthenic corpus. idcvtxatvavta tot. by definition.33 29 Hyp.108. 4. &cuoT?To. o16. and will therefore involve reliance on specific clauses of the relevant law.45. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions .. 7Coir?a6cevov.5 that the opponent Euboulides possesses excessive knowledge of the laws.alTtp Tot v6ov TCOIeIV ticKac6v CTItV. ? &6aT?. [sc. The potential for manipulationis not perceived.it is usually assumed that the laws andjustice are on the same side. Athen.] 56.. icKactoi.. The laws are seen as a final means of resolving a dispute. Toi.160.] 44.] 56. so for instance [Dem. 35. by litigants as a flaw in the laws but simply a result of individualunscrupulousness.8 iKati Cv ?K tv T6OV IXPv6poi7a 6. T.[Dem.thereis a markedtendencyfor speakersto lay claim to a reluctance to assert their legal rights. tit T6 %eipov&XX' XaTTcoticK6. 57.. where the speaker expresses a readiness to give up the legal advantage afforded him by the law if the case presented by his opponents is reasonable.2 xitnep ?ouactv e6ozK6TO. |ofntRg7aai. 33 6 TI aXvpof)XTat Kat j. Hyp. See also Isai. This content downloaded from 193. Dem. 1138al f.35 ip6..14 fiei(.5 oo. or at least not presented. 6tKaia 5? Ka Oa(vtcv XlyovT?. and a consequent tendency to apologize for legal knowledge displayed.) characterizesas disinclined to insist rigidly on his rights. This attitude underlies the accusation hurled at Dem. as at Hyp. ot. so as not to appear philodikos. Cf. We find litigants presenting themselves as fair-minded people who are ready to forego the advantages which they could claim under the law in an effort to be reasonable. 6XX' iyo4t?Voi ?iv XaTTo'taoat TI KaiCt (coycop?iv xcTtrEe gi' 5oKeiv iX65iKoi dtvai. Lys.29where the speaker prefaces a dazzling display of legal expertise with a complaint that his enemy has forced him to study the law.. [Dem.. ofaX. Athen. 8t Totoio.. ?toi&b. Isai. not a remedy to be applied casually.30 Most potent of all as a source of miscarriage of justice is the mixture of legal expertise and rhetorical training. 57. It is importantto note. a reasonable/equitableman. & &v6p?. g?V taXoa coV aeopOfJgiv. t6pcpEpyaT6 a idC6vTa Dem. T6 ?K tA. &iKatact. The efforts of litigants to present themselves as pitchforked into litigation indicates that there is a reluctance to resort to litigation. iKat a oycXpofLEtv. thatthis is not a straightoppositionbetween the laws and justice.14. KaCtReXrtav vOKTtaKCIat fJpav. 65KalOV. Althoughwe find contexts in which the laws andjustice are distinguished. 13. &V ov Katriyoptav ?tciroilct.41.The laws are themselves fair in intention. who is ready to take less than he might under the letter of the law. 7t7oilrKaoc.146 on Fri.] 44.0 TcetpeaP 6K6. Kat Tots.] 42. however. Accordingly nomos and dike (in the sense 'lawsuit') are irrevocablylinked. whom Aristotle (E. 13. Cf. 5KatoI. similar is the speaker of [Dem. gtiv 6toOativotev tvavCtx. Individual litigants may of course be misrepresenting themselves..N. t' dt Xppft?ai TOIt. There is therefore a degree of discomfort felt by speakers citing the laws in detail. This suspicion of excessive legalism arises naturallyfrom the orientationof the laws towardprocedure.NOMOS IN ATTIC RHETORIC AND ORATORY 41 natural justice is without value in the lawcourts.v6toi. 19. 13 t av5btv &6Cot tov v6gcov tycb OaVep6)T?pOV tpovoflao. DYYpatf. 1. The effect is to presentthe speakeras an 7i?Ktic. 32 Cf. 31 xi v6gov gf b1dpX1. 10. . tiv Mo.21.Althoughthe laws detercertaintypes of behaviour of which society disapproves. So the laws can be manipulated. ?fjei.8.tj 6.Tf. gakXov I ipoKiev Katlept4opov Kat yap Otco glE 65oaT0elKac. 39. eiv6TnTto. speakers are never satisfied with the demonstration of the legal base for their objection to the prosecution. since there is always the possibility that legal expertise is being used to win an unjust victory.In addition. See also Dem..

108. ot Xp3ri! . a-uoyv6url. and the general characterof the parties to a suit. Here the speaker sees the citizens as being entrapped by the laws. 1143a21 ff. 7. The notion of epieikeia. KacOEotflKalXvq 'TO. At Rhet. Pity for relatives is meant to induce the jurors to reflect on the injustice of punishing the innocent along with the guilty. ?6v 6' TyiovEg F 5eTv6t?poi Tog A8tlouvtvo o.I 137a33 ff. both there and at E. Some are obviously intended in part to affect the jurors' view of the veracity of the parties to the 34 Cf. It is important assessment in agones timetoi.explicit appeal for epieikeia is in fact not found in the orators. is excite sympathy for his situation. to annulthe laws] is far betterthanto have the citizens ambushedby the laws. who makes no attemptto distinguish them precisely. TXapaTrots. It is of course an impossible task to distinguish clearly the different effects sought throughthese devices. Characterassassinationis intended to make the jurors ask whether the opponent deserves a favourable verdict. 1) 396 n. epieikeia is closely associated with forgiveness. Harris(n. he thewho habitually uses system for his own profit onlegalas someone may present the opponent and advantage. Evidently the two are not completely identical. Epieikeia and unwrittennomos are associated at 1375a29 ff. In fact. The blunt opposition of epieikeia and law favoured by rhetoriciansis avoided. Tt. Mirhady (n. it is as a characteristic in mind however that we lack the brief speeches allowed for the to bear jurors. Better still. the motive. but the paradox of laws as ensnarers is a powerful reflection of the prevailing ideology of the laws as fundamentally just. which in context is explicitly one of two aspects of unwrittendikaia (for the close relationshipbetween epieikeia and to dikaion see E. also Anaximenes 1444alO ff. CAREY 42 It is from this tacit acceptance that the laws are just that Lys. otlK?E6XO1)(tXV. 1. 1374bl ff. however. Alternatively.49 derives its force: inoX ytpp orco 6tK)Kat6tpov f ntb6TvV v6Ocov otsi noXktlmct. 1137bll ff. Aristotle sees the exercise of epieikeia as the temperingof the strictnessof the law with reference to factors such as the circumstancesin which an act is committed.).N...34Again. E.V?Sp?e6baat. particularlyassociated with imprecisionand omission in the law (cf. an habitual malefactor.a plea based on extra-legalconsiderationswill inevitablybe taken as an acceptance the an admission of and the legal position the defendanthats offendant's weareforknesse howeve.N. he does not mean the laws at all. or request speaker can do. 6 T &v po6iXrtiat Zpfo9a0.N. 1) 140. gratitude for past services. Mention of past services to the city is meant to give the jurors a countervailing impression of the overall worth of the speaker which will have the effect of reducing the significance of his offence.v6ovgi. It is however difficult to disentangle the two concepts completely. Epieikeiafiguresin survivingoratorynot as text but as sub-text. or for his relatives. a figure worthy only of hostility from the jury. he defines it as 'justice contraryto writtenlaw'.160.35Where epieikeia is mentioned of partiesto a suit ratherthan a quality to be displayed by the rateristic explicitly.g gotzv 6ckozpiaf KOataiXtvovU yuvalKca. rhetoricalguidelines prove less subtle than actual practice. however. Ta&S This [i. he discusses epieikeia in the context of his definition of writtenand unwritten dikaia. but they are closely associated for Aristotle. At Rhet.These all amount to a means of inducing the jurors to hesitate before applying the rigour of the law.).146 on Fri. which prescribe thatif someonecapturesa moichoshe shouldtreathim as he sees fit. where explicit appeals for epieikeia might naturally figure. 35 Cf.. while the trialshave becomefarmore dangerousfor the victims of injustice than for those who bring shame on the wives of others in contraventionof the laws. but the application of the laws by those sitting in judgement. The avoidance of pleas for epieikeia by defendants in the defence speech proper is readily understood. as a counterweightto the rigid applicationof the written statutes.C. he may present his opponent as a man of low character. sharedby Aristotle and Anaximenes also plays a significantrole in forensic contexts. 1374a27 ff.e. This content downloaded from 193. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . 399 argues that epieikeia in Aristotle is to be distinguished from common law.

. allow equal rights to all where this offence is concerned.24. 25.v6ApE. ort(& Cf. 6. as a result even oligarchies.o. The appeal to laws outside Athens implies an opposition between the law of the individual community (idios nomos) and law which is recognized in most or all communities (koinos nomos). 1. is accordingto Isaios observed not only throughoutGreece but also among barbarians.pf(Yeoc.50.. PoO6XT1rjtt bocXo.50 ~lwc irp6. XttC' Ka0XO)1(0(1O1. gi4tv trotcita 1tc1EoXltc14tuvo)v.148 &iaxat. Although the laws of Athens carry great authority. along the lines of Aristotle's 38 and the superiority of distinction. I~ cO tlgopfo a ot. he insists that all Greek cities regard moicheia as the most serious of offences. 7tp6. 8oict.. tX(ov . Lys.Aristotle argues that the phrase 'most just opinion' relates to areas where the juror does not know the law. Dem.o{~to.175 otKoov 6ct16oict-v. is less contentious. KiOcctai. txt.He also offers the argumentthatthereis no differencebetween having no laws and not using the laws. universal law.dci ot. jii'j' VXrOV c_.Lys. oi5 866xEt gu'~t6vpa gn98tVaCt1~tCE tXvT1vgT8tr8cjtv &icrv. It is however used in ways not anticipatedby Aristotle.icoci8tdctof)troXp6rata ir6tcr. This content downloaded from 193.160. when Lysias wishes to stress for the jurors the seriousness of the offence of moicheia at 1.with Isaios' discussion of the laws of adoptionat 2.2. lbcp t6wvnooXov iccia0ca.tt gt7tacTt0 8uv0(c1tvou 6uro&6otai 38 It also implies that this antithesis had permeatedfrom intellectualdebate into the collecti-veconsciousness.v6g~ov t(bxfta.36The jurors' readiness to give weight to such considerationsis in harmony with the ideology of law implied by the disinclination(affected or real) of litigants to insist on their legal rights.146 on Fri.21. tvo. A similar point is made by Isokrates 19. irovrjp6v KaxtPfctiov ictt pi4patfv Xca3ofxnv cv0p(ontovK1(0 1' otiXavOpuonf gi16tva gtl6aji6Oc-v. Cf. 2.225 8e1 tofviv gu'jt kiyto1)py(a. 37Isai. This is closer to the juror's oath than his counterformulation. v6gou. This is the case.tot. t6Ote tOw 6gliowtov(ov 6pm(ov6cgeXi'arcxva. on the treatmentof the law when it is in our favour.i. it appearsthat they gain still more authorityif they can be shown to be in agreementwith laws elsewhere in Greece. irrespective of the political system.108. c(o~t1'-KCC6V. uiii6' 601oV EtVai oCoitw1VR 6AvpC6v0o60nV6toy6votq. dutci0ofikn Rt'V O~)&~V 60~EXo.2 irept toftou y6p g6vou toi) 68t&igccli(o. &0(0O11(o(1. toO.11 et t4awta 6 ti 6v Tt. o1b8&v 39Cf. v6jtou. toi). and the tacit notion of universallaw is used not to subvertthe authorityof written law. notouYcoo. -Butthe antithesisis never drawnexplicitly. ~tfltofvov lbtiv.oiu. 'EXrioitv 6iuaat (o(X6). "5jtCL. Aristotle's notion of common or universal law is not entirely without value. f~X6cprt6. This can be exemplified in surviving oratory. [ttv 6XXoi. which discriminate in favour of the rich and powerful. and even beyond.cti. allowing a man without childrento adopt an heir. 19. vfv XakoKtaftrua. for instance.6 icpi tfj. K01t 'EXXr9i aiocj3op[ppot. III The opposite set of argumentsoffered by Aristotle. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions .KFiaOcctt. Likewise.24 1(Kod tot.] Poil0ofvt0(. 6c~t(oact.39He also offers the argument 36 As Dem. and this in turn implies the nomos/physis antithesis. 14. as Aristotle prescribes. icat tv &W1oKpoctIqicot1(1 6Xty0(pXfqc 0ccateaxc.3 the same law.possibility that such extra-legalconsiderationswould carry weight with the jurors is clear from the attemptsof prosecutorsto close the possibilities for leniency and urge harshness.but to enhance that authority. (Yoyyv6)[t. But all are in part a tacit insurance policy against the possibility that the factual case will go against the litigant..cto. The applicationof the laws must be tempered with broaderconsiderationsof fairness and with the knowledge that the laws are subject to abuse. 8oKei 1(0(X6o.81. 24. [sc. 21. a. totb. 6uraatv (&(Vp6)1o1.XavOp6Mco). this is a truly universal law. if unquantifiable. gT6&OEgiT6V VO[tIft'C.e.NOMOS IN ATTIC RHETORIC AND ORATORY 43 action and therefore their decision on questions of fact.6i' 6ou nocpa4V6.57 6XXkd ltoev. That there was a real. Isokr.. 6v6g. v6g. Kiet00xt. which was discussed above. itp6.

d) &v6pe. Tro. 36. there is a broader rhetoric of law which is not tied to artless proofs. v6go.C. 21. I offer a few examples of this broaderrhetoric. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions .ou. Though I can find no specific example of such blunt advice to the jury (it is the opponent who tends to be represented as aspiring to be cleverer than the laws). OXuTtreiv y6ap Toil. The logical counterpart to the advice that the opponent's laws be denigrated (1443al2 ff. OlXav90ponitac. 6ppti?9aOui 64toi. Lys.43the frequency of the reminderof the oath to vote according to the laws has already been noted.) is that we should praise the usefulness of laws which we cite. 40 Dem. v6gou. As with the inadequacyof the harguments against the authority of statute law. 21. See in general Harris(n. the oratorsare full of examples of exhortationsto the jurorsto apply the full rigourof the laws. Dem. Moreover... the law is more often a blunt instrumentthan the sharpinstrumentAristotle envisages. 43 Cf. This content downloaded from 193. The effect is partly to assist the speaker in projecting an appealing ethos. 6XoV.32 &v gepvrqg&voi Kodt?got iKat TO iartpt porj0ioaT 42Cf.?t Tq 6ooKti . To. CAREY 44 that one should not seek to be more clever than the laws. E.ey76cXiA1Tnti[acval Kat Xftv tIaXp6. presumablybecause the rhetorical demands of a situation in which the laws may be cited with confidence are considerablyless. 64da.g. t. 177 toto 6 tqo' 6ei.160. individually and collectively.. 21. For Aristotle the law is to be pressed of usage.6ofXoux. ' 6 . 6pKOV. the aim of this rhetoricis to tap the reservoirof respect for nomos which the Atheniansshared with other Greeks. v6gov. o0x. It is not uncommon for citation of the law to be accompaniedby praise of the law. this limitation arises from excessive schematism. the rhetoric of law appearsto bear no discerniblerelationto the most importantdiscriminatorfor Aristotle in terms that is. The superimposedschema makes the treatmentof the topic unduly specific.. 57.9 Kati ?v 5f.But the rhetoric of law is martialledirrespective of the precise legal position. giHvf|(9aOXt xpt 6nr o) Wvfltof5gevoi. In this respect again. 6.that or underminedin court accordingto its precise supportfor our case or our opponent's.6-7. they are to be told thatthey are to judge thethes other occasions rather than in court. 1) 149 nn. However. since it ties the rhetoric of law to citations of specific laws and leads the rhetoriciansto ignore the broaderuses of law in oratory.41 In general this clause of the juror's oath is invoked much more frequently than the 'just opinion' clause. together with an emphasis on the intellectual element in the act of persuasion to the detriment of the affective. the real limitationin the treatmentof the utilizationof the supportof the laws by Aristotle and Anaximenes is that it appears to be envisaged solely in terms of the direct support of specific laws cited on substantiveissues.Although the citation of laws intended to convince the jury of the legal supportfor the speakeron the main issue plays a major role in the orators.o|iOK6atVKactaTOi. Wjfrlotiea6. precisely because of the explicit restriction in the oath on the exercise of 'just opinion'. is. Anaximenes has considerablyless to say on this subject. AO9vvacot.. partly to stimulate the audience to the appropriate emotion. O`6? Toob. 6 nept anJTvhvIK?T?. 18. of. i?15c. Isai..49 TcTui Tdcyp6ggcxaTao. v6. 177. whether the law is with us or against us..oi v6got.. 6pKot. actual usage deviates from Aristotle's instructions. We find the authorityof law marshallednot only in the context of a specific appeal to one or more laws but in portions of the speech where ethos is the primaryeffect sought or where emotional appeal is the dominanteffect. The latter advice can be exemplified in oratory. r6v Dem. oTwc og-va ?V Kaxt DO2aFPr vogioOetOFraT?c.tof v6ioi Tf. 10. 224.108. 6gCog6icKaT8.34. vo0to96etcTJOVT?.. y 6g.48 6cKO)i?T?. d) &vp?.26 f. 21 is particularlyrich in examples: cf.42He also suggests that the jurors be remindedof their oath to judge according to the laws and be discouraged from tampering with them. 5iKacaTaf. 41 icot i Kai T Kagvot.d) 6v6pe. Essentially. KEItgVOV.15.40and remindersof the dikasts' oath to judge accordingto the laws. the facts not laws.121 ckX' ov65' actaXfvl otalpov pLpr|.Put simply. in fact in some cases where a precise appeal to the law would probablybe damagingto the speaker. 6tcKatov fV LieTawrocvt6..TC6v 6vaoyyv6a1KEaOalt Toi. rarely to appeal to reason. YXX KaXT T1ot.146 on Fri. v6govu. Lys. and to legislate on specifically.6.

26 t7(b 6' tiTcov6ti 'oiocK t76 ae 6ucoictev6 6tXX'6Tg 45Ant.. The opponent is someone who despises the laws. O~)Kc ~tCoX9(XTF6CTCoXwretvctx. v6got. for although the speaker aligns himself with the laws he dissociates himself (unless his status makes such dissociation implausible) from knowledge of the laws. v6got. tot. v6g.But this is merely the most dramatic instance of the invocation of nomos.. tot). Cf.10 the jurors are told that they cannot have both the laws and Andokides.] 42. I3oneetv.ti. f~t6v itp6.Xpr~lcOMx. oLv ~' 6fivagj.21. This content downloaded from 193. 52Lys.45There is of course an ambiguity here.56.9 obto.48 Even where the opponent is obedient to the letter of the law.] 59. yp6pgtex7teyp yEypagg~t~V of'v6got 0' 14ttv e~YtdV at(TIV.2 icctcupov1'aca.221ff. ot KFirivtxnFpcpibvTotoiotwvi6vre-. The laws are the basis for ordered society.Dm.The clearest case is in Lys. Strict legality is not enough. 6ei tofvuovtoftdtl.. 1. (ii.50 The wrong decision in the present case will have the effect of invalidatingthe laws. There is no simple correlationhere with the amount of legal supportfor the speaker's case. The use of the same motif at 5.5' As such they are a source of fear.o.27 naepoxicXamnvt. Dem. 6. accordingly this aspect of the rhetoricof law does not fall neatly into the 'law on our side' half of Aristotle's antithesis. 50 Lys. taniv..Andokides.160. '4tcbw . &p'M6vt. 46 Cf... KII(XPt tattv. 10.] 59. as we are reminded on occasion. v6gou. again seeks to achieve an emotional effect ratherthan to prove a substantivepoint. 6cgOoctpov. already noted. Demn.Lys.156CXX' 6giw. -Kex t6w teipcyWvo)v (Thti~ip6. 6.. o.i5iet.225 (n. t6c~Et. T6xeo). 48[Dem..iTokXitex.6. Puno~of)v'te.115 the laws are envisaged as actually presenting the case against Neaira.86. KccntEOp6vrjcmcad t6wvv6gov oi5ictop6vtnae.1 jr6v. where the speakerbases his case on his strict adherenceto the law...] 59.47 At [Dem. The rhetoricof law is not just about legality but aboutjustice and reasonableness. he may be represented as someone who knows the laws but exploits them for personal advantage..224-i' 8t tdwvv6gow taXO.aO(xt Kcxt6(nc6xr(xt.6v Og(x.) There is an equally strongtendency to associate the opponentwith breachof the laws.4'despite the fact that (as is generally recognized) he is at the very least interpretingthe law over-narrowly. i4t6w ~6uc8'"fRVOi4Cvo pTov'TO lrpoa68petgof)VteXa (V(X1cp6y13..] 58.iced xptxrit icptotu..'.. to the extent of asserting at one point that he is merely the physical agent of the law. MAe 'Av8old6l3. iC(XTpfot. ocVroo.34 tv i4ttv 6' tact nt6tepov Xpi" troOt&i toXipo'b. The jurors thus have the choice of voting for the opponentor siding with the laws.n6Xe-O.) The future of the laws themselves is in the balance. te v6got.115 fjyiaOE &t gftyugtc6v Xtyovtx e-lvexi'AitoXX66wpovjn'jte oil. 1.146 on Fri... tot6. KcxtTot.49 The right decision in the present case will confirm the validity of the laws.32 (n.115.14. [Dem. he may still be represented as abusing the laws. 'AOr9vaoto.2.14. 14. 6XXk& rnwUEPOfvta.. 6cnoyriaog&vou. 44Lys. edipEia0at. either the laws must be expunged or they must be rid of.ti.o~6Wc6cpetntc 14itv eX~Yoi. or otherwise placed into outright opposition to the laws.00f31ocn8i'crtevtcot. &xvtncvxva vtOv 1iX6tcTtaw -KF. though rathercloser to Aristotle's general treatment of law (since it is closely linked to the speaker'sobjectionto the procedureused againsthim). Thus at Lys. cf. Lys. (iii..21.. icexti'gCov icd Tof.of).]59.. 5' [Dem. The jurors must give aid not just to the litigant but also to the law'S.] 26. ic(v8uvov.8 oi5icol6v Te l4Liv tativ @uxctot.NOMOS IN ATTIC RHETORIC AND ORATORY 45 (i.fo le. icedtNtcenpotvt(wnv1v irsptcv 49[Dem.. v6gomo. tot.. gv v6jioo.) There is a strong tendency for litigants to associate themselves with the laws or to appropriatefor themselves the discourse of law. 6ckki'iou. Cf. [Dem.52The deterrentpower of the law prevents unscrupulousmen tf. 41). 50). ioxgttou. 47Lys. When Antiphon praises the homicide laws.108.46 The opponent can be represented as the enemy of the laws.6cXXY 7Loki)~t6csXov tOoPFeiTa0e Tot. [Dem. tdYv PEPMt' oo~YtOi). vjtou. 1. iced oiJxt &Ovenvt'6xvtexot)oitofIeTan.. ke-ttCo8eotv~p-olbcoO(v ehnav iaXl)pot ictOed4it.. &v6pe. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . he is in part drawingfor his own purposeson the widespreadrespect for these laws.

I wish to express my thanksto all who commentedon both occasions. Accordingly we find that speakers who have to face real juries in real trials do not use the arguments favoured by the rhetoricians. 21. There is thus a paradox in the presentationof the laws in oratory. I am also grateful to the anonymous referees for a numberof helpful suggestions. 04 Dec 2015 15:06:36 UTC All use subject to JSTOR Terms and Conditions . CAREY Royal Holloway. 54 This article is a revised version of a paperpresentedto researchseminarsat the Instituteof Classical Studies in London and at Oxford University in November 1993. have no power in themselves. and used with caution it may still provide a useful approachto reading the orators. CAREY 46 from exploiting their advantages over others. it seems that. at least as far as the attempts to undermine the authority of law.C. This content downloaded from 193. Yet the laws themselves are also perceived as weak. The clearest statement (and the nearest Demosthenes comes to a devaluation of written law in line with Aristotle's examples in the Rhetoric) is Dem. on the issue of the role of law in oratory.54 C.108. Universityof London 53 See n.53The laws. It is throughtheir enforcementby the jurors that the laws become a force for orderin society. ignore the broader uses to which law was put in oratory of the period.160. we are told. The same image of the laws lies behind the many other passages in which the jurors are asked to make the laws kyrios. But although the discussion of nomos in surviving fourth century rhetoric is flawed. IV In conclusion. Both authors also. that use of the arguments proposed could seriously damage a litigant's chances of success.224. general and specific. 50.the advice of Aristotle and Anaximenes should come with a health warning. They are inert.146 on Fri. are concerned. in concentrating on the specific question of the extent to which the litigant's factual case finds support in the laws. it offers a useful startingpoint for an examinationof the ambiguities in the Athenian attitude to law.