E. M. Cope, Commentary on the Rhetoric of Aristotle

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A connected sketch of the contents of the following chapter, a particular account of ἐπιείκεια or equity, and of the relations of the different kinds of ‘law’, will be found in the Introduction, p. 187—193, and on p. 239 (Appendix E to chap. XIII).

It analyses and classifies actions right and wrong, first from the strictly legal, and secondly from the equitable or moral point of view. Equity is the principle of merciful consideration, that indulgent view of men's actions which makes allowance for human infirmities, looks rather to the intention than the act, and thus mitigates or corrects (ἐπανορθοῖ) the strict rigour of the ‘written law’.

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‘In distinguishing or analysing wrong and right acts, let us commence with the following consideration’ (or, let us take the following for our starting-point). On δικαίωμα here ‘an <*>ust act’, the opposite of ἀδίκημα, and its various senses, see note on. I 3. 9, p. 56. ‘Accordingly the definition of justice and injustice has reference to two kinds of “law” (§ 2), and two kinds of persons (§ 3)’. The divisions of just and unjust depend upon their relation to two kinds of law, and two kinds of persons: πάντα ὁρίζεται τῷ τέλει.

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‘I distinguish therefore two kinds of law, the special and the universal; and by special, I mean that which is determined in each people or nation (separately or individually) by themselves, (lit. that which has for each class of people or nation its definition directed or referred to themselves,) by their own peculiar habits, customs, feelings, opinions, form of government, and this either unwritten or written’ (see in explanation of this, Introd. Appendix E p. 242—244); ‘and by universal law, the “law of Nature”.’ For there is, as all are instinctively convinced, a natural and universal notion of right and wrong, quite independent of any mutual communication (association, intercourse), or compact, such as Sophocles' Antigone evidently alludes to, when she says that it is just, (right), though forbidden, (by the positive law of Creon's enactment) to bury Polynices, implying (ὡς, on the supposition that) that this is naturally right.

Not of today nor yet of yesterday Is this, but everlasting is its life, And none doth know what time it came to light.

And, as Empedocles says about killing living animals; for this is not right for some and not right for others, ‘but this same law for all (this universal law) spreads without break or flaw’ (ἠνεκέως, usually διηνεκῶς, ‘continuously’) ‘over the wide ruling sky and again over the boundless earth’.

Law universal of no human birth Pervades the sovereign sky and boundless earth.

On the distinction of the κοινός and ἴδιος νόμος here taken, compare Eth. N. V 10 (Eth. Eud. IV 10) 1134 b 18 seq. quoted in Introduction, p. 241. The same distinction is found supra I 10. 3. On ‘natural law’ see Whewell, Elements of Morality, § 380 seq. Duke of Argyll, Reign of Law, Definitions of Law, c. 2.

μαντεύονται] of a presentiment or foreboding, or as here an instinctive conviction, a sort of divination; see note on I 9. 40, καταμαντεύεσθαι.

Ἀντιγόνη...λέγουσα] Soph. Antig. 456.

Ἐμπεδοκλῆς λέγει] Empedocles, Fragm. lines 404—5. Karsten ad loc. p. 281 says, ‘Scaliger ad vocabulum αὐγῆς in margine annotavit lect. αὖ γῆς. Codices variant (the best including A^{c} appear to give αὐγῆς); hoc perperam recepit Bekkerus, quem plures sunt secuti, qui loci sensum parum habuerunt perspectum.’ Spengel follows Bekker in reading αὖ γῆς. In illustration of the doctrine alluded to in the lines quoted, Karsten cites Diogenes Laertius, de Pythag. VIII 13, qui dicit, eum vetare ἅπτεσθαι τῶν ζῴων, κοινὸν δίκαιον ἡμῖν ἐχόντων τῆς ψυχῆς; and Sextus Empiricus adv. Math. IX 127, who says that the entire school of Pythagoras and Empedocles, and all the Italians, assert that we have intercourse not only with the Gods and one another, but that this extends also to irrational animals; ἓν γὰρ ὑπάρχειν πνεῦμα τὸ διὰ παντὸς τοῦ κόσμου διῆκον ψυχῆς τρόπον, τὸ καὶ ἑνοῦν ἡμᾶς πρὸς ἐκεῖνα: διόπερ καὶ κτείνοντες αὐτὰ... ἀσεβοῦμεν. On the interpretation of αὐγῆς Karsten has this note. ‘Ergo commune illud ius pertinet διά τ᾽ αἰθέρος i. e. per aerem (cf. annot. ad v. 105) quo omnes animantes vescuntur, διά τ᾽ αὐγῆς per lucidum caelum (ut vs. 127) in quo Dii degunt’. The verse cited by Karsten in support of his interpretation of αὐγῆς seems insufficient for its purpose; the word there seems to have no other meaning than its ordinary one, ‘sunbeam or sunlight’; I doubt if αὐγή could stand for ‘heaven’; and perhaps it may be better to accept Bekker's reading.

On Alcidamas, see the article on the Sophistical Rhetoric, in the Cambridge Journal of Classical and Sacred Philology, Vol. III. No. 9, p. 263 seq. and on the Μεσσηνιακὸς λόγος, ib. p. 257. It is quoted again, II 23. 1. Vater, and Spengel (Artium Scriptores p. 175), cite the anonymous Scholiast, who supplies the missing quotation thus; ἐλευθέρους ἀφῆκε πάντας ὁ Θεός, οὐδένα δοῦλον ἡ φύσις πεποίηκεν. It seems to be totally inapplicable to the topic which it professes to illustrate, and if it comes from the speech at all is at all events quite out of place here. Spengel (Praef. ad Rhet. Gr. I vi) says of it, fictum non verum: but being as it is so utterly inappropriate, it can hardly have been ‘manufactured’ for an occasion to which it is not suitable.

Of the ‘Messeniac declamation’ the Schol. says that it was a μελετὴ ὑπὲρ Μεσσηνίων ἀποστησάντων Λακεδαιμονίων καὶ μὴ πειθομένων δουλεύειν. Conf. Sauppe, ad Alcid. Fragm. 1, Oratores Attici III 154. [Vahlen, der Rhetor Alkidamas, (Sitzungsberichte der Kaiserlichen Academie der Wissenschaften, Vienna, 1863, pp. 491—528, esp. p. 505). S.]

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πρὸς οὓς δὲ διώρισται, διχῶς διώρισται, Vulg.—δίχα ὥρισται A^{c}, adopted by Bekker and Spengel [ed. 1867], omitting the first διώρισται: in Rhetores Graeci [1853] he reads [διώρισται] διχῶς διώρισται, in conformity with § 1. (I do not myself see why the first διώρισται need be omitted without manuscript authority.) ‘In respect of the persons to whom it is referred, this division of law is twofold, for the right and wrong, justice and injustice, in acts, are referred to (severally determined by, divided in relation to) either the public, society in general, the whole community (against whom the offence is supposed to be directed), or an individual member of it. And therefore just and unjust acts are divided into two classes, according as they are directed against a single and definite individual, or the community at large. Adultery and assault are injuries or wrongs to the indi viduals, refusal to serve, or desertion, is a wrong to the entire community or nation’. This is the basis of the distinction in Attic jurisprudence between the δίκη, the private civil action or suit of man against man, and the γραφή, or public, criminal prosecution; since the latter is a state offence, common to the whole community, a public prosecution may be conducted by ὁ βουλόμενος, ‘any one that pleases’, provided, that is, he be a qualified Athenian citizen. See further on this subject, in Introd. I 13, p. 187, and Meier u. Schömann, Der Attische Process, Bk. III. § 2. Buttmann ad Dem. Med. § 9.

Accordingly ὁ τύπτων is liable to a δίκη αἰκίας; ὁ μὴ στρατευόμενος, one that either declines to serve altogether, and so fails in his duty to society and his country, or a deserter, to a γραφὴ ἀστρατείας or λειποταξίου. μοιχεία is here included with αἰκία in the class of wrongs that are the subject of a δίκη or δίκη ἰδία; under the ordinary classification it exposed the offender to a γραφή, a criminal prosecution, which, as it could be carried on by the husband or one of the near relations, might also properly be called ἰδία. Meier u. Schömann, u. s., p. 163—4, 327 seq. In this case the state, as well as the husband, considered itself aggrieved as the guardian of public morals. In illustration of this twofold aspect of a crime, Victorius quotes Cic. in Verrem, V (III) 69, 161, quibus in rebus. non solum filio, Verres, sed etiam reipublicae fecisti iniuriam: susceperas enim liberos non solum tibi sed etiam patriae.

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‘After this division, or classification, of wrong acts, some of which are directed against the entire community, and the others against one or more individuals, let us first repeat our definition of τὸ ἀδικεῖσθαι, that we may know what being treated unjustly, or suffering wrong, is, and then proceed to the rest’.

The introduction of ἄλλους here leads to a new distinction: a civil action between parties in their private capacity may be brought either against one or several, as when an action is brought against a club or commercial company or the partners in a firm: in either case the offence which is the subject of it is private and particular, and directed against individuals, and both of them are distinguished from state offences.

ἀναλαβόντες] to repeat or resume (take up again) seems to be a reference to I 10. 3, where ἀδικεῖν, the exact opposite of ἀδικεῖσθυι, was defined, and the latter can readily be inferred from the former. This may be called a resumption, or, in a sense, a repetition of the preceding definition, or at all events of the same subject; and this seems to be confirmed by the reference, in the next sentence, to this very definition. On the entire question of the voluntary character of ἀδίκημα and ἀδικία see Eth. Nic. V 11 (Bekk.): and that of vice in general is discussed in the same work, III 7 (Bekk.). The conclusion in the two chapters of the Ethics is that which is here assumed to be the fact.

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‘To be wronged then is to be unjustly treated by a voluntary agent, for to do wrong has been previously defined to be voluntary’, I 10. 3. And since ‘doing’ and ‘suffering’, action and passion, are opposites, and opposites fall under the same γένος, we may infer at once that if doing wrong is voluntary, suffering wrong is voluntary too—not in the patient of course, but in the agent. Comp. Eth. Nic. V 10, 1135 a 15, ὄντων δὲ τῶν δικαίων καὶ ἀδίκων τῶν εἰρημένων ἀδικεῖ μὲ̣̣ καὶ δικαιοπραγεῖ ὅταν ἑκών τις αὐτὰ πράττῃ: ὅταν δ᾽ ἄκων οὔτ̓ ἀδικεῖ οὔτε δικαιοπραγεῖ ἀλλ̓ ἢ κατὰ συμβεβηκός ... ἀδίκημα δὲ καὶ δικαιοπράγημα ὥρισται τῷ ἑκουσίῳ καὶ ἀκουσίῳ...ὥστ̓ ἔσται τι ἄδικον μὲν, ἀδίκημα δ̓ οὔπω, ἐὰν μὴ τὸ ἑκούσιον προσῇ.

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‘Now injury, and injury against one's will, being both of them necessary to the notion of injustice or wrong, it will be clear from what has preceded, what the injuries are (αἱ βλάβαι the injuries of different kinds which are contained in the notion); for things good and bad in themselves (as opposed to the comparative goods of c. 7) have been previously analysed (in c. 6), and of things voluntary it has been stated (c. 10 § 3) that they are things done with the full knowledge’ (of the special circumstances of the case. Eth. Nic. III 2). Spengel has adopted εἴρηται from MS A^{c}, for διῄρηται the Vulg., which Bekker retains.

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‘So that all charges (accusations, complaints of wrong) of every kind must be referred to two different distinctions, the first that of the persons offended, whether individuals and private persons, or the community at large; and the second (ἢ καί, ‘or again’), in the nature of the act, whether it was done in ignorance or unintentionally (i.e. under compulsion, by a superior external force), or intentionally and with full knowledge; and of these last (ἑκόντος καὶ εἰδότος) either with deliberate purpose, malice prepense, or under the influence of passion or excited feeling’. Bekker and Spengel have omitted καί with MSS Q, Y^{b}, Z^{b}, before ἀγνοοῦντος, or rather changed the order of ἢ καί into καὶ ἤ, and substituted καί for ἤ after ἀγνοοῦντος. This is certainly unnecessary, though perhaps preferable. The sense is perfectly good as I have translated, following MS A^{c}, which appears to give the vulg. reading. The first καί is ‘again’, the second distinction: ἢ ἀγνοοῦντος of course corresponds to ἢ ἑκόντος: ἀγνοοῦντος ἢ ἄκοντος is quite defensible, the two don't always go together; τὸ ἀκούσιον includes other things besides ignorance, ὄντος τοῦ ἀκουσίου τοῦ βίᾳ καὶ δἰ ἄγνοιαν, Eth. N. III 3 init., the involuntary is due to external force or compulsion as well as to ignorance. This does not apply to ἕκόντος καὶ εἰδότος, because knowledge and voluntary action always do go together; voluntary action implies full knowledge of the circumstances of the case, τὸ ἑκούσιον δόξειεν ἂν εἶναι οὗ ἡ ἀρχὴ ἐν αὐτῷ εἰδότι τὰ καθ᾽ ἕκαστα ἐν οἷς ἡ πρᾶξις. Eth. N., u. s., and see the preceding chapter on ignorance as the justification of an act. Of the two last classes of acts liable to ἐγκλήματα, τὰ προελομένου and τὰ διὰ πάθος, the former are acts done with προαίρεσις, the deliberate purpose or enlightened and deliberate intention which alone gives them their virtuous or vicious character, and stamps them as morally good or bad; the latter are acts due to the two impulses, here called πάθος, appetite and desire (ἐπιθυμία), and ‘passion’, any sudden and violent, especially angry, excitement (θυμός). Acts of this latter kind cannot properly be said to be involuntary, οὐ καλῶς λέγεται ἀκούσια εἶναι τὰ διὰ θυμὸν ἢ δἰ ἐπιθυμίαν, Eth. N. III 3, 1111 a 24, because though they are done in ignorance (ἀγνοῶν πράττει), or in the temporary blindness of a fit of passion, they are not due to ignorance, δἰ ἄγνοιαν, ignorance is in no sense the cause of them, and therefore no justification, Ib. III 2. These are in fact the four degrees of criminality of Eth. Nic. V 10, on which, and on this subject in general, see Introd. p. 181—9. They are afterwards reduced to the ordinary three in § 16, infra.

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Of θυμός we shall have to speak when we come to treat of the πάθη or emotions in II 2—11, where the second chapter gives the analysis of ὀργή, as it is there called. The motives and incentives to crimes and the intentions and dispositions of the criminals have been already dealt with (in cc. 10 and 12).

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On this and the two following sections, which refer to what were subsequently called στάσεις, status, the legal issues of cases, and by Aristotle ἀμφισβητήσεις, see Introd. p. 189, 190.

‘But whereas it frequently happens that men when called to account for an imputed criminal act, admit the fact, but refuse to admit either the title, or name that has been applied to it’ (by the prosecutor namely, who has had it registered under a certain name or title whereby it is referred to a certain class of crimes, and some particular tribunal, and has a special penalty attached to it: this is the στάσις ὁρική, status finitivus, nomen, or finitio, of the subsequent classifications), ‘or that which is contained under the title’ (that is, the description of the act which is supposed to correspond to the title, but may not actually do so): ‘a man may say, for instance, that he ‘took’ the thing but did not ‘steal’ it, or that he struck the first blow but was not guilty of wanton outrage, or that there was intercourse but no adultery, or that he was guilty of theft but not of sacrilege (because the thing stolen belonged to no god), or that he had committed a trespass but not on public lands, the state domains, or had conversed (held communication) with the enemy but was guilty of no treachery—from the frequent occurrence of these and similar distinctions it becomes necessary that it should be determined what theft is, and what ὕβρις, and what adultery, and so on; in order that if we want to prove that the fact is so, or the reverse, we may be able to set in a clear light the real merits or rights (τὸ δίκαιον) of the case’.

The distinction of the ἐπίγραμμα and περὶ ο τὸ ἐπίγραμμα I have already indicated. The one is the στάσις ὁρική, the name or title by which the act should be designated, which determines the court that it shall be tried in, and is represented in all the examples given except the case of trespass: the other is the description given of the act, as may be seen in the instance that illustrates it, the trespass (the name) is acknowledged, but the detailed account described it as a trespass upon the public land, which is denied. This, if it corresponds to any of the στάσεις when they were regularly classified (on which see Introd. p. 397 seq. in Appendix E to Book III), must be the στάσις of quality, ποιότης, quale: but it seems certain that in Aristotle's time they had not yet been systematised and arranged under constant technical names. At all events, in this passage in the two last cases it seems that no very clear distinction is made out; or apparently intended, as appears from the mixing up together of the examples of both. Quint. III 6.49, where Aristotle's division of στάσεις is noticed, must be referred, not to this passage, but to Rhet. III 16.6, and 17. 1.

πατάξαι πρότερον] to be the aggressor in an affray. It is otherwise termed ἄρχειν χειρῶν ἀδίκων, II 24. 9, Rhet. ad Alex. 26 (37). 39.

ἐπεργάσασθαι] Donaldson, New Cratylus § 174, has introduced this passage amongst his examples of a large family of verbs compounded with ἐπί, in which the preposition corresponds to the Latin (and English) inter (in composition), implying reciprocity, or mutual right or association, as ἐπικοινωνία, inter-communion, ἐπιγαμία, the right of inter-marriage, Rhet. I 14. 5. It is quite true that ἐπεργασία and ἐπεργάζεσθαι (see the examples in Donaldson, p. 296, and the Lexicons) are both used in this sense for the right of inter-cultivation of land, just like ἐπινομία the right of mutual pasturage, as on a border territory. But here ἐπεργάσασθαι must mean to encroach or trespass, otherwise it is no offence: and so the word is used by Aeschines, Ctesiph. § 113, of the Locrians of Amphissa who ‘encroached upon’ the sacred soil of Crissa, by cultivating, Thucyd. I 139, and elsewhere; as well as ἐπινομία and ἐπινέμειν, for a similar trespass on the pasturage of some one else. The primary sense must be no doubt that of reciprocal right or occupation, the interchange of cultivation. Perhaps the notion of going backwards and forwards over a border to cultivate land may have suggested the notion of trespassing, by extending the original signification to cases where there was no such right existing, or only in the trespasser's imagination.

I will add some instances of similar formations which are not given in the New Cratylus.

ἐπαλλάττειν, Eur. Heracl. 836, ποῦς ἐπαλλαχθεὶς ποδί, ‘interchanged, interlaced’: common in Aristotle, Pol. I 6 (quoted by Donaldson), c. 9, 1257 b 35, ἐπαλλάττει ἡ χρῆσις κ.τ.λ. Ib. VI (IV) 10, 1295 a 9, διὰ τὸ τὴν δύναμιν ἐπαλλάττειν πως αὐτῶν, Ib. VII (VI) I, 1317 a I, ποιεῖ τὰς πολιτείας ἐπαλλάττειν. Parva Naturalia, de longitate et brevitate vitae, c. 1, 464 b 28, ἐπηλλάττει τὰ νοσώδη τὴν φύσιν σώματα τοῖς βραχυβίοις, de ortu anim. II 1, 732 b 15, ἐπάλλαξις, 733 a 27, ἐπαλλάττουσιν ἀλλήλοις κ.τ.λ. de insomniis II 18, 460 b 20, καὶ τῇ ἐπαλλάξει τῶν δακτύλων τὸ ἓν δύο φαίνεται, Theophr. Hist. Pl. I 3. 2.

ἐπιμίσγεσθαι, Thucyd. I 2 and 13, ἐπιμιγνύντες, ἐπιμισγόντων; Herod. I 68, ἐπιμιξίη; Thuc. V 78, Xen. Cyr. VII 4. 5, Ar. Pol. IV (VII) 6, 1327 a 39: ἐπέρχεσθαι, Thucyd. IV 120, ἐπήρχοντο, ‘were going backwards and forwards paying one another visits’: ἐπικοινωνεῖν, ἐπικοινωνία, Plat. Gorg. 464 C, Soph. 251 D, 252 D, ἐπικοινοῦσθαι, Protag. 313 B, Ar. Top. Δ 2, 123 a 6, ἐπικοινωνοῦσι γὰρ οἱ τόποι, Anal. Post. A 11, 77 a 26, ἐπικ. πᾶσᾳιͅ αἱ ἐπιστῆμαι ἀλλήλαις, Rhet. ad Alex. 5 (6). 5.

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‘In all such cases the issue (the dispute, question in dispute, disputed point) turns upon this, whether namely (the accused party) is criminal and vicious or not; for the vice and injustice (of the act) lies in the deliberate purpose or intention, and names of this kind, such as wanton outrage and theft, connote (signify in addition to their direct and literal meaning) the deliberate intention or purpose; for the act of striking is not in every case (co-extensive with) wanton outrage, but only if it was done with a particular object or purpose, of insulting the other for instance, or for his own gratification (the wanton pleasure in the insult itself and in the humiliation it inflicts, ὅπως ἡσθῇ, Rhet. II 2. 5). Nor is surreptitious appropriation in every case theft, but only if the theft was for the injury of the other and for the thief's own private use and advantage. And so the same rule that applies to these cases holds in like manner of all the rest’.

περὶ οὗ. These words, suspected from Victorius downwards, omitted by A^{c} and three other MSS, and finally rejected by Bekker and Spengel, were probably inserted by some transcriber or commentator who was doubtful about the construction. If they are omitted, the accusative, πάντα τὰ τοιαῦτα, will be, as Victorius says, equivalent to κατὰ πάντα, ‘in all such cases’; which is thus grammatically to be explained. The accusative here follows the analogy of that class of accusatives which indicate the local seat of any ‘affection’ in its widest sense, and follow passive and neuter verbs and adjectives, (τερφθεὶς τοῦτο, Eur. Ion 541, ὦτα κατεαγότες, Plat. Gorg. 515 E, τὰ ὦτα κατάγνυνται, Protag. 342 B, ἀλγεῖν τὴν κεφαλήν, νοσεῖν ὀφθαλμούς, βοὴν ἀγαθὸς Μενέλαος, πόδας ὠκὺς Ἀχιλλεύς) and are themselves probably nothing but extensions of the ordinary cognate accusative; which passes first from the direct expression of the same notion as that in the verb, μαίνεσθαι μανίαν, τέρπεσθαι τέρψιν, to the indirect and general and indefinite neuter, μαίνεσθαι τάδε, τέρπεσθαι τοῦτο or ταῦτα (see Wunder on Oed. R. 259), and secondly into the expression of any equivalent notion almost without limit, of which the seat of the affection is one form. This is the explanation of Kühner [§ 410 anmerk. 5 of 2nd ed.], Jelf, Gr. Gr. §§ 545, 6, and I think probably the true one. Here therefore πάντα τὰ τοιαῦτα ‘all such instances’ are represented locally as the seats of the several ἀμφισβητήσεις, the points on which each case turns, or legal issues: in them the points in dispute or issue are said to reside.

ἐν γὰρ τῇ προαιρέσει ἡ μοχθηρία] See note on I 1. 14, and the passage there cited. One of them is Top. Z 12, 149 b 29, οὐ γὰρ ὁ λάθρα λαμβάνων ἀλλ᾽ ὁ βουλόμενος λάθρα λαμβάνειν κλέπτης ἐστίν. Add Eth. Nic. III 4, init. περὶ προαιρέσεως...οἰκειότατον γὰρ εἶναι δοκεῖ τῇ ἀρετῇ καὶ μᾶλλον τὰ ἤθη κρίνειν τῶν πράξεων. Ib. 1112 a 2, τῷ γὰρ προαιρεῖσθαι τἀγαθὰ ἢ τὰ κακὰ ποιοί τινές ἐσμεν. Ib. V 10, 1135 b 25, οὐ γὰρ διὰ μοχθηρίαν ἡ βλάβη, ὅταν δ᾽ ἐκ προαιρέσεως, ἄδικος καὶ μοχθηρός. 1136 a I, ἂν δ᾽ ἐκ προαιρέσεως βλάψῃ ἀδικεῖ. Rhet. I 14. I, 5 (implied).

προσσημαίνει] περὶ ἑρμηνείας c. 3, 16 b 5, ῥῆμα δέ ἐστι τὸ προσσημαῖνον χρόνον. Ib. lines 8, 9, 13, 18, 24; ubi Ammonius, προσσημαίνειν δὲ τὸ πρὸς τῷ πρώτως δηλουμένῳ κατὰ δεύτερον λόγον καὶ ἄλλο τι συνεμφαίνειν. Eth. Eudem. II 3, 1221 b 18 seq. (where much the same thing is said as in this passage of the Rhetoric in many more words).

ὕβρις] See note on I 12. 26.

σφετερισμός is ‘the making a thing one's own’, appropriating it to one's self, and one's own use. Plato has σφετερίζεσθαι, and Arist. Pol. VIII (V) 11 sub fin. 1315 b 2, σφετεριστής. The meaning of the genitive ἑαυτοῦ, which looks as if it meant ‘appropriation of oneself’, must be interpreted by the opposite βλάβη ἄλλου, with which it is contrasted. As ἄλλου after βλάβη is the objective genitive, injury to another, so ἑαυτοῦ after σφετερισμός is the appropriation to yourself and your own benefit, appropriation for your own use and advantage.

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ἦν] ‘there are, as we said’, viz. in § 2. This however was not ‘said’ precisely as it is here; there, laws were divided into universal and special, and then the special subdivided into written (or positive law) and unwritten: and we now learn that the universal law is also unwritten, and that the special branch of the unwritten law, which must now be distinguished from the other, is to be found in that spirit of fairness and mercy and consideration, which consists in an inclination to relax the unnecessary rigour of the written code arising from its own imperfections, and at the same time to make due allowance for human errors and infirmities: all which is contained in the principles of equity, the unwritten law which prescribes such a course of conduct in matters of doubt. I have observed in the Introduction p. 244 that we are probably to extend this subordinate kind of ἄγραφοι νόμοι so as to include all the prevailing feelings and opinions as to propriety and right and wrong in general which prevail in each special state (and are therefore a kind of ἴδιος νόμος, distinguished from the universal): of which indeed the views and feelings represented by equity form a very considerable part.

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The two kinds of unwritten law are, first the universal law, the precepts of which suggest higher considerations and higher duties than mere legal obligations to pursue virtue and avoid vice (this is what is meant by the ‘excess, or higher degree, of virtue and vice’ above the legal standard, expressed in καθ᾽ ὑπερβολὴν ἀρετῆς καὶ κακίας, quod eximiam virtutem aut vitium inde continet, Victorius), obedience to which law is rewarded by praise and honour and gifts (the two kinds of rewards; the ‘gifts’ in this case being conferred of course not for their value as a pecuniary compensation, but in so far as they are signs of moral approbation) and the breach or violation of it punished by (not fine or imprisonment or any personal penalty, as the violation of a legal enactment, but by) censure, reproach, dishonour (not deprivation of civil rights, which is a legal penalty): of such precepts examples are, gratitude to benefactors, the return or repayment of obligations (differing from the feeling of gratitude), the inclination and readiness to aid and defend one's friends, and such like. It is remarkable that amongst the precepts of the universal law which we are all bound to obey Aristotle should have here omitted the duty of interring and paying honour to the dead, so strikingly exemplified by the appeal of Antigone against Creon's tyrannous proclamation in the play to which he himself had just called our attention (comp. Eur. Suppl. 16—19, 526, 538), and still more so perhaps in the trial of the eight generals after Arginusae.

The second kind of unwritten law is that which belongs to law special, and is what is omitted by (i. e. intended to supply the deficiencies of) the written law.

Some of these universal principles of the popular morality are occasionally mentioned by the poets and other non-scientific writers: they are the most general rules of conduct which every one everywhere is supposed to recognise and obey. A short list of the most fundamental of them is given in the Rhet. ad Alex. c. I (2). 6, 7, which almost coincides with Aristotle's in the Rhetoric, δίκαιον μὲν ουν ἐστὶ τὸ τῶν ἁπάντων ἢ τὸ τῶν πλείστων ἔθος ἄγραφον, διορίζον τὰ καλὰ καὶ τὰ αἰσχρά. τοῦτο δ᾽ ἐστὶ τὸ γονέας τιμᾷν καὶ φίλους εὖ ποιεῖν καὶ τοῖς εὐεργέταις χάριν ἀποδιδόναι: ταῦτα γὰρ καὶ τὰ τούτοις ὅμοια οὐ προστάττουσι τοῖς ἀνθρώποις οἱ γεγραμμένοι νόμοι ποιεῖν, ἀλλ̓ εὐθὺς ἀγράφῳ καὶ κοινῷ νόμῳ νομίζεται. Eurip. Antiope, Fragm. XXXVIII (Dind.), τρεῖς εἰσιν ἀρεταὶ τὰς χρεών σ᾽ ἀσκεῖν, τέκνον, θεούς τε τιμᾷν, τούς τε φύσαντας γονεῖς, νόμους τε κοινοὺς Ἑλλάδος. Comp. Xen. Memor. IV 4. 19—24, where the same are mentioned with one or two additions. On the unwritten law in general, see Plato, Legg. VII 793 A, B, C; he says inter alia, οὓς πατρίους νόμους ἐπονομάζουσιν, δεσμοὶ οὗτοι πάσης εἰσὶ πολιτείας μεταξὺ πάντων ὄντες τῶν ἐν γράμμασι τεθέντων τε καὶ κειμένων καὶ τῶν ἔτι τεθησομένων, ἀτεχνῶς οἷον πάτρια καὶ παντάπασιν ἀρχαῖα νόμιμα, ἃ καλῶς μὲν τεθέντα καὶ ἐθισθέντα πάσῃ σωτηρίᾳ περικαλύψαντα ἔχει πρὸς τοὺς γραφέντας νόμους, and he finally classes with the unwritten law the ἔθη καὶ ἐπιδεύματα, Aristotle's second class of ἄγραφοι νόμοι, as I have mentioned in p. 243 of the Introduction.

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On what follows, see Introd. pp. 191—2, on equity; and the 14th chapter of the Nic. Eth. Book V. ‘For equity appears to be just (or a kind of justice), and it is the supplement to the written law that is equity (equitable)’. Comp. Eth. Nic. V 14, 1137 b 8, τό τε γὰρ ἐπιεικὲς δικαίου τινὸς ὂν βέλτιόν ἐστι δίκαιον, καὶ οὐχ ὡς ἄλλο τι γένος ὂν βέλτιόν ἐστι τοῦ δικαίου. Ib. line 12, τὸ ἐπιεικὲς δίκαιον μέν ἐστιν, οὐ κατὰ νόμον δέ, ἀλλ᾽ ἐπανόρθωμα νομίμου δικαίου. Line 26, καὶ ἔστιν αὕτη ἡ φύσις ἡ τοῦ ἐπιεικοῦς, ἐπανόρθωμα νόμου, ᾗ ἐλλείπει διὰ τὸ καθόλου.

‘This is done sometimes unintentionally, sometimes intentionally, on the part of the legislators, unintentionally when the omission escapes their notice, intentionally when they find it impossible to define or determine every thing (to provide by their definitions or determinations for all possible cases in detail), and are therefore obliged to lay down the rule as absolute (to pronounce universally), though it is not so in fact, but only true and fair for the most part’; and so fail to provide for exceptional cases. Eth. Nic. V 14, 1137 b 15, ἐν οἷς οὖν ἀνάγκη μὲν εἰπεῖν καθόλου, μὴ οἷόν τε δὲ ὀρθῶς, τὸ ὡς ἐπὶ τὸ πολὺ λαμβάνει ὁ νόμος, οὐκ ἀγνοῶν τὸ ἁμαρτανόμενον. καὶ ἔστιν οὐδὲν ἧττον ὀρθῶς: τὸ γὰρ ἁμάρτημα οὐκ ἐν τῷ νόμῳ οὐδ᾽ ἐν τῷ νομοθέτῃ ἀλλ̓ ἐν τῇ φύσει τοῦ πράγματός ἐστιν: εὐθὺς γὰρ τοιαύτη ἡ τῶν πρακτῶν ὕλη ἐστίν. Pol. III 11, 1282 b 2, so in the administration of government, and in enforcing obedience to the laws of the state, the sovereign power assumes the office of equity in the administration of justice; δεῖ τοὺς νόμους εἶναι κυρίους κειμένους ὀρθῶς, τὸν ἄρχοντα δέ, ἄν τε εἷς ἄν τε πλείους ὦσι, περὶ τούτων εἶναι κυρίους περὶ ὅσων ἐξαδυνατοῦσιν οἱ νόμοι λέγειν ἀκριβῶς διὰ τὸ μὴ ῥᾴδιον εἶναι καθόλου δηλῶσι περὶ πάντων. In Magna Moralia, II 1, the author, in treating of ἐπιείκεια, says, ἃ γὰρ ὁ νομοθέτης ἐξαδυνατεῖ καθ᾽ ἕκαστα ἀκριβῶς διορίζειν, ἀλλὰ καθόλου λέγει, ὁ ἐν τούτοις παραχωρῶν, καὶ ταῦθ̓ αἱρούμενος ἃ ὁ νομοθέτης ἐβούλετο μὲν τῷ καθ̓ ἕκαστα διορίσαι, οὐκ ἠδυνήθη δέ, ὁ τοιοῦτος ἐπιεικής, and concludes, τῶν μὲν γὰρ φύσει καὶ ὡς ἀληθῶς ὄντων δικαίων οὐκ ἐλαττοῦται, ἀλλὰ τῶν κατὰ νόμον, ἃ ὁ νομοθέτης ἐξαδυνατῶν ἀπέλιπεν. On the defects of the written law, see also Rhet. I 1. 7.

And not only is the legislator unable to provide for all exceptional cases to general rules, but also the infinity of particular circumstances which distinguish human actions and crimes precludes the possibility of his enumerating in detail all those varieties which in justice should have different degrees of punishment apportioned to them; as for instance, in enacting the prohibition of ‘wounding with an iron instrument’, to define the size and the kind of instrument in every case; for life is too short, and would fail a man in the attempt to reckon them all up in detail (on this case, which is given also by Quintilian, VII 6. 8, see Introd. p. 191).

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If then it be thus impossible to determine all these particular and exceptional cases, and yet there is a necessity for legislation, the law must be expressed in general terms; so that if a man wearing an iron ring lift his hand (to threaten) or strike another, by the written law (the letter of the law) he is liable (to the penalty), and has committed a crime, but in truth and in fact he is not guilty of a crime, and herein (τοῦτο, in this fair interpretation of the act) lies equity’.

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‘If then equity be such as we have described it, it is plain what sort of things (i.e. charges, imputed crimes) are equitable (i.e. suitable for equitable treatment), and the reverse, and what sort of men are not equitable’. And hence to the end of the chapter we have an analysis of the popular objects of equitable treatment, and the characteristics of it, or of the absence of it, the negative which may be inferred from the positive, in these subjects.

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‘(The first of these), the kinds of actions which are suitable objects of equity are such as these. Cases which ought to be treated with indulgence, and mistakes or errors (implying ignorance in particulars, Eth. Nic. III 2, on involuntary ignorance) and mere misfortunes, accidental, which should be carefully distinguished from actual crimes, and not visited with equal penalties: the latter of the two, accidental misfortunes, are such acts as are sudden and unexpected, or beyond calculation, and do not spring from a vicious habit or evil intention; errors are such as are not accidental, in the sense of unexpected and beyond calculation, and yet do not proceed from vice (in the same sense as before); but crimes are acts that are not without calculation (i.e. deliberate), and are prompted by a vicious habit or inclination, because all wrong acts that are due to desire, proceed from this depraved will and moral judgment’. This is the usual classification of the degrees of criminality in actions; for acts, of which the mischievous consequences are purely accidental, and therefore altogether beyond our own control, and for mischievous acts committed under some mistake as to the particular circumstances of the case (not of general moral principles, for which we are responsible), as when a man is killed with a gun that was not known to be loaded, we are not responsible: what makes us responsible for an act is not only the harm or injury that is its consequence, but the deliberate intention or purpose with which it was done (and in all cases where the wrong was prompted by desire, this is sure to be an evil one, τὰ γὰρ δἰ ἐπιθυμίαν ἀπὸ πονηρίας) and full knowledge of all the circumstances of the case. In the treatment of this subject in Eth. Nic. V 10, a fourth degree is introduced between the error and the crime. This is the case of a wrong act, as a homicide, done in a fit of passion ὁ θυμῷ ποιῶν, ὁ ὀργίσας: this being done by a spontaneous impulse, and not after deliberation with malice prepense (οὐκ ἐκ προνοίας), is only an ἀδίκημα, a wrong no doubt, and a thing which ought not to have been done, but not punishable like the deliberate act; a homicide not a murder. Compare the treatment of this topic in Rhet. ad Alex. 4 (5). 9—11. It seems to have been one of the stock topics of the rhetorical books. The degrees of criminality are there, as here, only three.

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καὶ τὸ τοῖς ἀνθρωπίνοις συγγινώσκειν] ‘the indulgent consideration of human accidents and infirmities’, especially errors, in mitigation of the application of the strict letter of the law. On τὰ ἀνθρώπινα, see note on I 2. 7, p. 34. These human errors and infirmities in the culprit should be met by a corresponding humanity on the part of the judge, the opponent, and indeed men in general. Victorius quotes ‘Ter. Adelph. III 4. 24, persuasit nox amor vinum adolescentia: humanum est.’ τὸ δ᾽ ἐξαμαρτεῖν καὶ περὶ τὰς πράξεις ἀτυχεῖν οὐ μόνον εἶναι αὑτῷ ἴδιον (φάθι), ἀλλὰ καὶ κοινὸν καὶ τῶν δικαζόντων καὶ τῶν ἄλλων ἀνθρώπων, Rhet. ad Alex. u. s. § 10.

§§ 17—18. ‘And to look (in interpreting the offence and the amount of the penalty), not to the law, but to the legislator, and not to the mere words (the letter) of the law, but to the mind (the intention) of the legislator’; (ὅταν οὖν λέγῃ μὲν ὁ νόμος καθόλου, συμβῇ δ᾽ ἐπὶ τούτου παρὰ τὸ καθόλου, τότε ὀρθῶς ἔχει ᾗ παραλείπει ὁ νομοθέτης καὶ ἥμαρτεν ἁπλῶς εἰπὼν ἐπανορθοῦν τὸ ἐλλειφθέν, ὃ κἂν ὁ νομοθέτης αὐτὸς οὕτως ἂν εἴποι ἐκεῖ παρών, καὶ εἰ ᾔδει ἐνομοθέτησεν ἄν. Eth. Nic. V 14, 1137 b 20); ‘and (to look) not to the act (of the accused) but to the deliberate purpose or intention, and not to the part but to the whole’ (i. e. not to take a narrow view of the criminality of the act by confining yourself to the consideration of the bare naked fact, or of some particular part or circumstance of it, which gives it a specially vicious appearance; but to look at it as a whole, to take into account the general character of the doer and all the attendant or surrounding circumstances which will throw light upon the intention of it, the purpose with which it was done), ‘and not merely to the present character of the offender but to the constant or usual character that he bore (to what sort of man he was, always or usually)’.

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‘And to remember rather the good than the ill treatment you may have received, and the benefits that you have received rather than those that you have conferred’.

μᾶλλον ἢ (ὧν, attracted, or ἃ) ἐποίησεν.—τὸ δίκαιον, strict justice, the letter of the law, requires an even balance of benefits on both sides, on the reciprocal (retaliatory, tit for tat, par pari) principle, τὸ ἀντιπεπονθός, Eth. N. V 8.—ἐπιείκεια, merciful indulgent consideration, remembers only the benefits and forgets the injuries; remembers kindnesses received, forgets those that it has bestowed. ἐγὼ νομίζω τὸν μὲν εὖ παθόντα δεῖν μεμνῆσθαι τὸν πάντα χρόνον τὸν δὲ ποιήσαντα εὐθὺς ἐπιλελῆσθαι, εἰ δεῖ τὸν μὲν χρηστοῦ τὸν δὲ μὴ μικροψύχου ποιεῖν ἔργον ἀνθρώπου. τὸ δὲ τὰς ἰδίας εὐεργεσίας ὑπομιμνήσκειν καὶ λέγειν μικροῦ δεῖν ὅμοιόν ἐστι τῷ ὀνειδίζειν: Dem. de Cor. p. 316. Victorius.

καὶ τὸ ἀνέχεσθαι ἀδικούμενον κ.τ.λ.] ‘and to put up with injury or injustice’, to endure it without retaliation, ‘and, the disposition or inclination, to have a matter decided rather by word than deed’.

λόγῳ κρίνεσθαι] to decide a dispute by an amicable settlement, by talking the matter over with the opposite party, or reasoning with him, rather than proceed ἔργῳ, appeal, that is, to the ultima ratio, the voie du fait, and actually fight out the quarrel: or (in the case to which Victorius would confine it, that of a quarrel between two neighbouring states) an appeal to arms. ‘Omnia prius consilio experiri quam armis sapientem decet. Ter. Eun. IV 7. 19. Apoll. Rhod. III 185.’ Victorius.

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‘Or again’—a particular case of the same kind of general disposition—‘to be more inclined to refer a matter to arbitration than to a court of law: for the arbitrator always takes the equitable view of the case, whereas the judge looks to the law’ (the letter, or literal interpretation of the law, which he is bound by oath strictly to carry out and interpret to the best of his judgment). ‘In fact the very motive or intention of the invention of arbitration (the introduction of it into jurisprudence and social relations in general) was that equity should prevail’.

διωρίσθω] note on εἴρησθω, I 11. 29 ult.

‘And so let this manner’ (this rough, hasty, popular sketch or outline) ‘of describing (marking out the boundaries in detail, determining the boundaries of the whole and the several parts, defining, analysing, describing, διορίζεσθαι) equity suffice’ for the occasion; for the use, that is, of the rhetorician, who requires no scientific treatment of the subject.