Aristotle, Art of Rhetoric

LCL 193: 4-5

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ὀργὴ καὶ τὰ τοιαῦτα πάθη τῆς ψυχῆς οὐ περὶ τοῦ πράγματός ἐστιν ἀλλὰ πρὸς τὸν δικαστήν. ὥστ᾿ εἰ περὶ πάσας ἦν τὰς κρίσεις καθάπερ ἐν ἐνίαις τε νῦν ἐστὶ τῶν πόλεων καὶ μάλιστα ταῖς εὐνομουμέναις, οὐδὲν ἂν εἶχον ὅ τι λέγωσιν· 5ἅπαντες γὰρ οἱ μὲν οἴονται δεῖν οὕτω τοὺς νόμους ἀγορεύειν, οἱ δὲ καὶ χρῶνται καὶ κωλύουσιν ἔξω τοῦ πράγματος λέγειν, καθάπερ καὶ ἐν Ἀρείῳ πάγῳ, ὀρθῶς τοῦτο νομίζοντες· οὐ γὰρ δεῖ τὸν δικαστὴν διαστρέφειν εἰς ὀργὴν προάγοντας ἢ φθόνον ἢ ἔλεον· ὅμοιον γὰρ κἂν εἴ τις, ᾧ μέλλει χρῆσθαι κανόνι, τοῦτον ποιήσειε στρεβλόν. 6ἔτι δὲ φανερὸν ὅτι τοῦ μὲν ἀμφισβητοῦντος οὐδέν ἐστιν ἔξω τοῦ δεῖξαι τὸ πρᾶγμα ὅτι ἔστιν ἢ οὐκ ἔστιν ἢ γέγονεν ἢ οὐ γέγονεν· εἰ δὲ μέγα ἢ μικρὸν ἢ δίκαιον ἢ ἄδικον, ὅσα μὴ ὁ νομοθέτης διώρικεν, αὐτὸν δή που τὸν δικαστὴν δεῖ γιγνώσκειν καὶ οὐ μανθάνειν παρὰ τῶν ἀμφισβητούντων.

7Μάλιστα μὲν οὖν προσήκει τοὺς ὀρθῶς κειμένους νόμους, ὅσα ἐνδέχεται, πάντα διορίζειν αὐτούς, καὶ ὅτι ἐλάχιστα καταλείπειν ἐπὶ τοῖς κρίνουσι, πρῶτον μὲν ὅτι ἕνα λαβεῖν καὶ ὀλίγους ῥᾷον ἢ πολλοὺς | 1354bεὖ φρονοῦντας καὶ δυναμένους νομοθετεῖν καὶ δικάζειν· ἔπειθ᾿ αἱ μὲν νομοθεσίαι ἐκ πολλοῦ χρόνου σκεψαμένων γίνονται, αἱ δὲ κρίσεις ἐξ ὑπογύου, ὥστε χαλεπὸν ἀποδιδόναι τὸ δίκαιον καὶ τὸ συμφέρον καλῶς τοὺς κρίνοντας. τὸ δὲ πάντων μέγιστον, ὅτι ἡ μὲν τοῦ νομοθέτου κρίσις οὐ κατὰ μέρος, ἀλλὰ περὶ μελλόντων τε καὶ καθόλου ἐστίν, ὁ δ᾿ ἐκκλησιαστὴς καὶ δικαστὴς



compassion, anger, and similar emotions has no connection with the matter in hand, but is directed only to the dicast.3 So if all trials were now carried on as they are in some states, especially those that are well administered, there would be nothing left for these rhetoricians to say. For all men either think that the laws ought so to prescribe, or in fact carry out the principle and forbid speaking outside the subject, as in the court of Areopagus, and in this they are right. For it is wrong to warp the juror’s feelings, to arouse him to anger, jealousy, or compassion, which would be like making the rule crooked which one intended to use. Further, it is evident that the only business of the litigant is to prove that the fact in question is or is not so, that it has happened or not; whether it is important or unimportant, just or unjust, in all cases in which the legislator has not laid down a ruling, is a matter for the juror himself to decide, not to learn it from the litigants.

First of all, therefore, it is proper that laws, properly enacted, should themselves define the issue of all cases as far as possible, and leave as little as possible to the discretion of the judges; in the first place, because it is easier to find one or a few men of good sense than many, capable of framing laws and pronouncing judgments; secondly, legislation is the result of long consideration, whereas judgments are delivered on the spur of the moment, so that it is difficult for the judges properly to decide questions of justice or expediency. But what is most important of all is that the judgment of the legislator does not apply to a particular case, but is universal and applies to the

DOI: 10.4159/DLCL.aristotle-art_rhetoric.2020