MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

Aristotle on the Rhetoric of Law 

David C. Mirhady 

1\ A DISCRETE TREATMENT of the rhetorical tactics of argu­
mentation about law and the presentation of evidence, 
i.e., the ex.EXVOt 1tlO'tEt<;, Aristotle's Rhetoric 1.15 is 

important for philologists 1 as well as for researchers of rhetoric,2 
legal historians, and philosophers.3 The cursory nature of 
Aristotle's text has proved obfuscating, however, and many of 
its words and rhrases must be carefully considered from 
various points 0 view for proper evaluation. The present study 
concentrates on the sections dealing with argumentation about 
law and contract (1375a25-b25, 1376a33-b30), the latter of which 
Aristotle treats largely in terms of the former. Here Aristotle is 
to a great extent using concepts that he discusses more fully in 
earlier chapters of the Rhetoric and in the Nicomachean Ethics. 
But some of these concepts-such as fairness ('to E1ttEt1(E~) and 
universal law (0 1(OtVO~ v6Jlo~)-need to be freshly considered 
from the perspective of this chapter, for Aristotle here makes a 
shift by which he identifies fairness and universal law with their 
counterparts in the Athenian courtroom) justice ('to SlK(xtoV) 
and the beneficial ('to (JUJ.UpEpOV). A highly organized structure 
underlying the apparently haphazard series of arguments 
affords an opportunity to study the interplay between these 
concepts that has not previously been exploited. Since the 
structure has gone unnoticed in recent commentaries, this 

1 E. M. Cope, The Rhetoric of Aristotle 5 (Cambridge 1877); W. Grimaldi, 
Aristotle, Rhetoric I: A Commentary (New York 1980: hereafter 'Grimaldi'). 
For background and issues relating to the presentation of evidence see my 
"Non-technical pisteis in Aristotle and Anaximenes," AJP 112 (1991) 5-28. 

2 R. Volkmann, Die Rhetorik der Griechen und Romer (Leipzig 1885) 
178-90; J. Martin, Antike Rhetorik (Munich 1974) 97-101. 

3 E.g. J. Triantaphyllopoulos, Das Rechtsdenken der Griechen (Munich 
1985) and F. D. Miller, Jr., "Aristotle on Natural Law and Justice," in D. Keyt 
and F. D. Miller, edd., A Companion to Aristotle's Politics (Cambridge 
[Mass.] 1991) 279-306. I pass over much recent literature on Aristotle's legal 
thought, since I find it largely unhelpful for exegesis of Rh. 1.15. In the future I 
expect to clarify my view of such concepts as lCOtvO<; V0l-l0<; and 'to bn£llC£<; in a 
wider survey of Aristotle's thinking. 

393 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

394 ARISTOTLE ON THE RHETORIC OF LAW 

paper proceeds by pairing coordinated passages and outlining 
Aristotle's progression of thought in them. 

I 

Before proceeding, we need to resolve two textual difficulties 
that will affect our interpretation of the .e.assage as a whole. The 
first appears at 1375a25-27: 1tp&'rtov JlEV OUV 1tEpt VOJlOOv d1tOOJlEV, - , , , ", , 
1tOO<; XPll0'tEOV Kat 1tPO'tPE1tOV't(X Kat a1tOIpE1tOV'ta Kat Ka'tll-
yopouv'ta Kat U7tOAOYOUJlEVOV. 4 In view of the omission of Kat 
7tPO'tpE1tOV'ta Kat U7tO'tpE1tOv'ta from MS A2 the phrase is ath­
etized by L. Spengel (1867), A. Roemer (1885), and M. Dufour 
(1960).1. Bekker (1831), W. D. Ross (1959), and R. Kassel (1976) 
print it without athetesis. Grimaldi, the most recent commen­
tator, is "not certain that we should exclude the phrase" (319). 
The problem arises because Aristotle states only three lines 
before that non-technical pisteis belong exclusively to forensic 
oratory; but the phrase "proposing and opposing" suggests 
political and not forensic argumentation (Rh. 1.3, 1358b22-24). 
In support of the phrase Cope, Kassel, and Grimaldi point to 
passages in the section on witnesses that suggest political 
discussion and infer from them that Aristotle does not mean 
what he states explicitly at 1375a25f, but that he intends the non­
technical pisteis to enjoy a wider application than simply in the 
courtroom. But this seems incorrect. The first part of the 
section on witnesses, in which the political passages occur, is 
exceptional in the whole chapter. 5 It consists of a listing of 
different sorts of witnesses, the strongest appearing first and the 
weaker ones after. The rest of the chapter consists of almost 
perfectly symmetrical pairs of arguments for and against the 
persuasiveness of each non-technical pistis. So it is rather the 
first part of the section on witnesses that needs to be treated 
cautiously; a different explanation of the phrase Kat 1tPO'tpE1tOV'ta 
Kat U1tO'tpE1tOv'ta needs to be found. 

It may be that Aristotle is not so much advocating the use of 
non-technical pisteis in deliberative or epideictic oratory-al­
though he would probably not protest if they were 
introduced-as simply acknowledging that political terminology 

4 "First, then, let us discuss laws (and see) how they are to be used zn 
proposing and opposing, and in accusation and defence." 

5 See my article (supra n.1) 13-16. 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

DA VID C. MIRHADY 395 

does enter the courtroom. In some cases one of the two 
litigants attempts to persuade the judges not only to decide the 
facts of the case as judges, but also to evaluate the validity of the 
relevant law as legislators (ef Eth. Nie. 5.10, 1137b22f: 0 Kav 0 
VOJl08E'tTle; au'toe; av dm:v fKEt 7tapwv; Lys. Adv. Ale. 1 4: 
xPWtOV XEpt tOUtWV VUVt OtaKaCOvta~ ~~ ~6vov OtKaOta~ 
af...f...u Kal vOJlo6£'tae; au'toue; "(Ev£CJ6at; Lycurg. Leoer. 9; Anax­
imenes Rh. AI. 36.21). By means of such argumentation the one 
litigant attempts to transform a purely forensic discussion (in 
which only the facts of the case are considered) into one that is 
extra-legal and semi-political, where the judges assume the role 
of legislators; the other litigant obviously argues against this 
attempted transformation. For this reason Aristotle introduces 
into his discussion of law the terminology of deliberative 
oratory. The phrase Kat 7tPO'tpE1tOV'ta Kat U1tO'tpE1tOv'ta is an 
example (ef 1358b8f). Support for this explanation appears in 
the use of CJU/.UpEpOV. At 1362a17, for example, Aristotle asserts 
that 'to CJUJlq>EPOV is the goal of deliberative oratory, but at 
1375b3 and 13 it is also a matter of concern to judges. 

With 1tPO'tpE1tOv'ta and U1tO'tpE1tOv'ta Aristotle therefore 
indicates that he will be considering arguments in support of 
extra-legal, semi-political argumentation in a case (1tPO'tpE1tOv'ta) 
as well as arguments against this sort of procedure (U1tO'tPE1tOV­
'ta). These can be used for both prosecution and defense (Kat 
Ka'rTl,,(opouv'ta Kat U1tOAO"(OUJl£vov). Between the two sets he 
sketches two different lines of argumentation based upon legal 
interpretation and the obsolescence of a law (1375b8-15). The 
sentences he uses to describe them are syntactically quite 
different from the rest of the section and they describe 
situations that are accordingly quite different. 

A second and vital textual problem appears as Aristotle 
introduces the five pairs of coordinated arguments. 

1375a27-29: cpav£pov ,,(ap on, faV JlEV fvav'tlOe; n 0 
, _, - - I \,.., 

"(£"(paJlJlEVOe; 'rep 1tpa,,(Jlan, 'tep KOtVep XPTlCJ'tEOV Kat 'tOte; 
EzttEtKECJtV Ox; ()tKato't£pote;. 

1375b16: faV ()£ 0 "(E"(paJlJl£VOe; n 1tpOe; 'to 1tp<l"(Jla .... 6 

6 .. If the written (law) tells against (our) case, clearly we must employ the 
universal (law), and arguments based on fairness inasmuch as they are more 
just." "But if the written law is favorable to our case .... " 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

396 ARISTOTLE ON THE RHETORIC OF LAW 

The phrase E1tlEllC£O'lV roc;, printed by Kassel, has a variant, 
E1tlElKECJ'tEPOlC; Kat, adopted by Ross and supported, if not 
unequivocally, by Grimaldi, who interprets the passage "we 
must use the more equitable interpretation, that is to say the 
more just" (319). If we accept this version, however, we are led 
to ask "an interpretation more equitable than what?" An in­
terpretation of the law is not being sought at this point in the 
text, but rather a suspension or non-application of it. There is no 
mention of interpretation until 137Sb 11-13. 

At 137Sa28f Aristotle is stating that in arguing for the non­
application of the law-and this would include only a clause of 
it-one can employ two distinct concepts, 'the universal law' 
and 'fairness',? These two concepts, under different labels, are 
discussed again and again in the section, and the reading 
E1tlElKEO'lV roc; makes it clearer that two and not three concepts 
are involved. Fairness is here meant to be identified with justice, 
not to be a distinct concept. There is no doubt that the Greek is 
strained in both textual variants, although Aristotle uses a similar 
pattern in his discussion of contracts at 1376b21: OUKOUV ,[ou,[o 

CJKE1ttEOV, aAA' roc; blKalo,[EpoV. Moreover, the use of the 
comparative with '[0 E1tlElKEC; makes little sense. Those who read 
E1tLElKECJtEPOl<; have understood the omitted substantive to be 
"laws" (V6~OlC;), and this is probably the only possible in­
terpretation (also the one presumably understood by the 
mistaken copyist). But a law governs 'the general', while fairness 
comes into play only when a specific situation does not 
conform to the general law. It ensures that despite deficiencies 
in the law, justice will be served (see Eth. Nic. 5.10, 1137b13f). 
Since arguments based on fairness are altogether distinct from 
the law, only the positive and not the comparative form of the 
adjective is needed. E1tl£lK£CJlV stands for 'arguments based on 
fairness', the sort of arguments listed at 1374b2-23. 

7 The communis OpWIO about this passage needs correction: e.g. M. 
Ostwald, "Was There a Concept ayp(X(po~ VOIlO~ in Classical Greece?" in E. N. 
Lee, ed., Exegesis and Argument (Assen 1973) 81: "Aristotle lumps these 
'higher considerations' together under the term KOlVO~ (VOllo~) which consists 
of bttEtKEcr'tEpa and BlKato'tEpa." But KotVo~ VOIlO~ is an altogether distinct 
concept from 'to btt£lKE~. 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
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DAVID C. MIRHADY 397 

II 

The five arguments for extra-legal argumentation and the five 
arguments against are arranged symmetrically in a one-to-one 
correspondence. Nowhere is this correspondence clearer than 
in the first pair of arguments. concerning the judges' oath: 8 

(1) 
1375a29-31: Kat. on 'to YVWJln 't11 aplcr'tn 'tou't' fcr'tl, 'to Jlll 
1taV1EAw<; xpTjcr8al 'tOl<; )'£)'paJlJlEvol<;. 

1375b16-18: 'to 't£ YVWJln 't11 aplcr'tn AEK'tEOV on OU 'tOU 
1tapa 'tOY VOJlOV £V£Ka OlKa~ElV fcr'tlV, aAA' tva, faV 
ayvoftcrn 'tl AE)'El (, VOj.LO<;, Jlll E1tlOpK'ft.9 

Aristotle apparently considers this oath of the greatest impor­
tance for any argument about law or legal procedure (see 1376 
a19; 1377a14. 24f, 29; 1377b10). He never challenges its validity 
and is only concerned with its interpretation. With good reason: 
for despite the cautious way in which he formulates the positive 
argument, one would search in vain for a similar example in the 
orators. The negative argument seems, in contrast, to be familiar 
(e.g. Dem. 23.96f). This does not mean, however, that Aristotle's 
view was necessaril y remote from that of the practicioners of 
forensic oratory. One should not expect Aristotle's argument to 
be reproduced word for word or even with the same logical 
force. Demosthenes (20.118), for example, exhorts the judges to 
apply the principle of the phrase olKalO'ta'tll YVWJlll to the law, 
even though the phrase was only supposed to apply either 
where there was no relevant law or where, as Aristotle says, the 
judges are really ignorant of what the law means (see also Dem. 
23.96. 39.39ff, 57.63). 

The junction of the initial pair of arguments is to bring the 
procedural legitimacy of extra-legal argumentation into the 
discussion. The heliastic oath, which bound judges to decide 

8 Cf A. Biscardi, "La 'gnome dikaiotate' et l'interpretation des lois dans la 
Grece ancienne," RIDA 17 (1970) 219-32. 

9 "And that the (phrase in the judges' oath) 'according to my best under­
standing' means this: Not to use the written laws exclusively." "And that 
'according to my best understanding' does not mean to judge contrary to the 
law, but (is there) so that, should one be ignorant of what the law says, one 
would not commit perjury." 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
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398 ARISTOTLE ON THE RHETORIC OF LAW 

cases according to the law, was the biggest stumbling block for 
the Athenian orator who wished to engage in extra-legal 
argumentation. His only means of circumventing the oath was 
offered by the phrase in the oath cited by Aristotle. With it the 
orator is to assure the judges that it is legitimate (in the widest 
sense of that term) to entertain extra-legal argumentation. A 
parallel argument, that the judges should decide the facts of the 
case based on probabilities and not on testimony, is given at 
1376a19. 

Burnet noted the relevance to the heliastic oath of Eth. Nic. 
6.11, 1143a19-24 (ilOE KaAouJl£vll YVOOJlll, Ka8' llv ouyyvooJlovac; 
Kat EXElV <paJlEV YVOOJlllV, il tOU E1tlElKOUC; EOtt KpiolC; op8ft· op8l) 
0' il tou aA1l80uc;),lO but he did not point out its relevance to our 
understanding of the Rhetoric. In this passage Aristotle is of 
course more concerned with a form of cognition than with 
jurisprudence, but it is clear that he is drawing his explanation of 
it from a forensic setting. The association of concepts suggested 
by the linguistic association of yvooJlll and ouyyvooJlll triggers in 
his mind the idea of fairness and the fairminded man (note also 
the occurrence of 'truth' at 1375b3, infra). 

(2) 
1375a31-b2: Kat on to JlEV EltlElKEC; €lEt Jl£VEl Kat 
ouObtOtE JlEta~aAAEl, ouO' 0 KOlVOC; (Kat a <pUOlV yap 
Eonv), Ot OE YEypaJlJlEVOl 1tOAAaKlC;' 08EV dplltal to. EV 
tTl LO<pOKA£OUC; 'AvnyovTI' a1tOAoydtal yap Otl E8a'l'E 
napa tOY tOu KPEOVtOC; VOJlOV, aAA' ou napa tOY 
liypacpov, 

ou yap tl VUV yE KaX8Ec;, aAA' ad nOtE . 
taut' oily EYoo OUK EJlEAAOV aVOpOC; OUOEVOC;. 

1375b19: Kat Otl OU to anAWC; aya80v aipEltal ouodC;, 
&./ .. :J...a to autro. ll 

• 

10 J. Burnet, The Ethics of Aristotle (London 1900) 279. 

11 "And that fairness always remains and never changes, nor does the uni­
versal {law)-for it is by nature-but the written laws change often; whence 
are said the lines in Sophocles' Antigone. For she defends herself by saying 
that she has buried (her brother) contrary to the law of Creon, but not 
contrary to the unwritten (law): 

for it is not something for now or yesterday, but exists always. 
Thus I did not hesitate because of any man.» 

" And that no one chooses the good in itself, but the good for himself." 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

DAVID C. MIRHADY 399 

The second pair of arguments goes on to reintroduce the 
intellectual means by which one circumvents the law, namely 
the concepts of universal law and fairness, which Aristotle had 
first introduced at 1375a27-29. The distinction between fairness 
and universal, or natural, law has been put succinctly by K. 
Kuypers: "Wahrend ... das Naturrecht in engerem Sinne im 
allgemeinen die fundamentalen Rechtsnormen des Zusammen­
lebens enthalt, ist die Billigkeit immer auf das Konkret-Indi­
viduelle der menschlichen Wirklichkeit und des menschlichen 
Handelns bezogen.» 12 Fairness is associated with the individual; 
universal laws are directed toward issues of the family and 
community, such as the unwritten law that compels Antigone 
to care for the corpse of her brother. 

Here Aristotle urges, on the positive side, the metaphysical 
priority of the two concepts over written law: they are per­
manent and never change. On the negative side the Aristotelian 
thinker would have to concede the view of the positive side as 
true, so he completely disregards it by arguing (implicitly) that 
the point is irrelevant in the courtroom, where psychological 
considerations playa larger role (see 1354b7-11). No one, 
litigant or judge, when faced with his own litigation or with a 
quick decision in the courtroom, truly seeks fairness or uni­
versal law, which are represented in the negative argument by 
'to Cx1tAW<; aya86v; he seeks only what is good for himself. 
Aristotle is being cursory (E1tlbpaIlElV: 1375a23), and he does not 
pause to expand the negative argument by spelling out at this 
point 'the good in itself'. But 'to CxrrAw<; aya80v is given priority 
by its position at the beginning of the phrase, which is co­
ordinated with the position given to fairness and universal law in 
the positive argument. The positioning illustrates Aristotle's 
consistent interest in the interplay of higher intellectual con­
cepts in considerations of law. 

(3) 
1375b3-5: Kat on 'to biKalOV Eanv UAT\8E<; n Kat 
(JUIlq>EPOV, aAA' OU 'to bOKOUV' WO't' OU vOIlO<; 6 
YEypaIlIlEVO<;' OU yap 1tOlEl 'to EPYOV 'to 'tou vOIlOU. 

12 K. Kuypers, "Recht und Billigkeit bei Aristoteles," Mnemosyne SER. 3 5 
(1937) 298. 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
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400 ARISTOTLE ON THE RHETORIC OF LAW 

137Sb20: KcxL on ouoev olcx<p£pn tl !lil KEta8cxl tl !lil 
Xp1l08CXl.13 

The third pair of arguments moves from the metaphysical and 
psychological tension of the second pair to a political question: 
what is the function and goal of law? More importantly, it is also 
here that Aristotle makes a crucial and very interesting step: he 
gives new labels to the concepts "fairness" and "universal law," 
which he mentions first at 1375a27-29 as the intellectual tools of 
extra-legal argumentation, and whose metaphysical priority over 
written law he confirms in the second positive argument. Here 
they appear again, this time not in the language of the 
philosophical school but in that of the courtroom. Fairness ('to 
E7tl£lKEe;), which otherwise seldom appears in the extant 
speeches of the orators and then only as a general term, is here 
implicitly associated with 'true justice' and so with the countless 
references to 'to OlKCXLOV that appear in the orators. Likewise 
universal law, which is also rare in the orators, is associated with 
'to OU!l<pEPOV, again a ubiquitous phrase in forensic oratory. 

Other examples of these new links of concept and language 
may be found elsewhere in the Rhetoric and Nicomachean 
Ethics. In his discussion of fairness (Rh. 1.13), for example, 
Aristotle cites the example of the man wearing a ring who raises 
his hand to strike someone, or actually does strike someone. 
According to the letter of the law the ring is a piece of metal, a 
weapon, and so the man is guilty of a serious charge. In truth, 
says Aristotle-that is, according to fairness-the man is not 
guilty of that serious charge: KCX'tU OE uATl8EC; OUK UOlKEl, Kcxl 'to 
E7ttElKEe; 't01h6 Eonv (1374b 1). Here the identification of fairness 
with true justice is explicit and, I think, definitive. Further, the 
phrase E7ttEtKEOlV we; OlKCXLO't£pOte; (1375a29) implies that 
arguments based on fairness are more just, and seems closely 
akin to the identification of fairness with justice as something 
true (uATl8£C; n). 

The connection between universal law and the idea 
represented by 'to OU!l<P£pov is more difficult to confirm, 
beyond pointing to the matrix of thought surrounding them that 

13 "And that the just is something true and beneficial, but the apparently just 
is not, so that the written law (is not just); for it does not fulfill the function of 
the law. n "And that there is no difference between the law not existing and its 
not being applied." 



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DAVID C. MIRHADY 401 

strongly suggests their association. (This 'matrix' recurs at 
1375b12f in the discussion of legal interpretation.) But at Eth. 
Nic. 5.1, 1129b14-16 Aristotle says that laws aim at what is 
beneficial in common to all those who have political power: 01. 
OE VOJlOt ayopEuoucrt 1tEpt cmuv't(Ov, cr'toxaSOJlEVOt 11 'tou KotVfl 
<I'UUW£pov'to, n:a<IlV f\ 'tolC aplcr'tolC f\ 'tolC lruPlOlC Ka't' ap~'tilV f\ 
Ka't' aAAov nya 'tP01tOV 'tOLOU'tOY. He goes on to say (b25f) that 
this is a form of justice. The connection of universal law with the 
beneficial becomes more rlausible if 6 KOtVO<; VOJlo<; can be 
viewed both in the sense 0 the delimited universal law to which 
Antigone appeals in the second positive argument (other 
examples of which are suggested at 1374a20-25), and also in the 
sense of 'law in general' as devoted to some form of justice 
related to the benefit of the community (1tpo<; 'to KOtYOV: 
1373b19). KOtVO<; suggests the two senses more easily than is 
possible in English. 

(4) 
137Sbsf: Kat on Wcr1tEP apYUPoyvwJlWV 6 KPt't,,<; Ecrnv, 
01tW<; OtaKptVn 'to KtpOT\AOV OtKaLOV Kat 'to aAT\8r<;. 

1375b20-23: Kat on £v 'tat<; aAAat<; 'tExyat<; ou Aucrt'tEAEt 
1tapacro<ptsEcr8at 'tOY ia'tpoy· ou yap 'tocrOU'to PAU1t'tEt 
il uJlap'tta 'tOU icnpou ocrov 'to E8lSEcr8at a1t£t8Etv 'tip 
apxovn.14 

The fourth pair of arguments now shifts from direct discus­
sion of the law to the role of the judges. Rhetorically, this would 
represent a shift from 'ta 1tpuYJla'ta to 'to 1tu80<; , the laws being 
the direct subject of discussion and the judges being in this case 
the listeners whose 'emotion' is to be stirred (see 1356al-4). The 
warning against becoming accustomed to disobeying one who is 
in charge only makes sense as an exhortation to the judges to 
adhere to what the legislators, like doctors, have prescribed in 
the written laws (Eth. Nic. 1.13, 1102a20f). 

The tension between the concepts of fairness and universal 
law is suggested here for the first time; it is made more explicit 

14 "And that the judge is just like an assayer of silver, so that he distin­
guishes the counterfeit justice from the true." "And that in other disciplines it 
does not pay to outsmart the doctor; for the mistake of a doctor does not 
harm as much as the practice of disobeying the ruler." 



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402 ARISTOTLE ON THE RHETORIC OF LAW 

at b 12f. The positive argument focuses again on true justice (i.e., 
fairness), emphasizing that when entertaining argumentation 
based on fairness the judges, like the assayer of silver, focus on 
details of the case and the individuals involved that escape the 
general parameters of the written law. In the negative argument, 
on the other hand, Aristotle extends the association of universal 
law and the beneficial by pointing out the 'disadvantageousness' 
of extra-legal argumentation. It is only when the role of the 
judges is introduced that considerations of diverging interests 
become apparent. The judges, as representatives of the polis, do 
have an interest distinct from that of either litigant, who might 
be better served by considerations of their particular cir­
cumstances beyond the written law. The positive argument 
concentrates on the details of the case, which would be to the 
advantage of at least one of the litigants; the negative argument 
concentrates on the well-being of the state. IS 

(5) 
1375b7f: Kat on J3EA:tioVO<; avopo<; 'to 'tOt<; aypclcpOl<; 11 
'tot<; YEypaJlJlEVOl<; xpn08al Kat EJlJlEVElV. 

1375b23-25: Kat on 'to 'trov VOJlwv OOCPW'tEPOV ~Tl'tE'iv 
";' - " , t'" ,.., , , Elval, 'tOU't Eonv 0 EV 'tOl<; E1talVOUJlEVOl<; VOJlOl<; 

cl1tayopEuE'tat. 16 

The trend of Aristotle's scheme would suggest that after 
dealing with 'ta 1tpclYJla'ta in the third pair of arguments and 'to 
1tu8o<; in the fourth, he would proceed in the fifth pair to 
discuss 'to ~8o<;. And he well might be addressing the role of the 
speaker-I think he is-but the evidence is not conclusive. At 
the beginning of the second book Aristotle says that the speaker 
is supposed to argue for his own intelligence, virtue, and good 
will. Here he would argue for his being the 'better' man. 
Grimaldi cites as a parallel 1375a15ff: clJldvovo<; yap Jlil Ol' 
clVclYKTlV OiKaLOV ttval' 'ta Jl£V o-ov YEypaJlJlEVa E~ avcl'YKTl<;, 'ta 0' 
aypacpa ou. But a second passage (1365b35f) is equally impor-

t'" " .... " -, , tant: Ol yap EJlJlEJlEVTlKO'tE<; EV 'tOl<; VOJllJlOl<; EV 'tn aplo'toKpan~ 

15 See also Rh. 1.13 1373b19-24; PoL 2.8 1268b25-69a9. 
16 "And that it is of the better man to use and abide by the unwritten laws 

rather than the written.» "And that to seek to be wiser than the laws, this is 
what is forbidden among the laws that are praised." 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
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DAVID C. MIRHADY 403 

apxoUCHV. uva:YKTl (5E 'tou'tOUC; <paivEo8al upio'touC;. The 
differences in meaning suggested by the words ~EA.'t trov, 
aJ.1.Elvrov, and aplo'toc; should not be overlooked, even if we lack 
at this point the sort of word study that would enable conclusive 
distinctions. UJ.1.ElVWV at 1375a 15 appears (as could aplo'toc; at 
13(5635) to suggest the r;ghtm;ndedness of a person to do 
justice voluntarily and without compulsion, while ~EA.ttroV sug­
gests rather an ability of intelligence to recognize what is right 
independent of the canon of written law. This distinction is 
consistent with the formula at 1368b9f: EKOVtEC; (5£ nOLOUOlV ooa 
d(50tEC; Kat J.1.11 avaYKaS0J.1.EVOl. It is also supported by the 
negative argument, which singles out the attempt to be more 
intelligent than the laws as forbidden by the best laws. 

For Aristotle the ideal of legal procedure is represented by the 
Areopagus at Athens, and one finds in his discussion of it the 
best external clue that the fifth pair of arguments relates to the 
role of the speaker. According to Rh. 1.1 (1354a21-31) anaV'tEC; 
yap 01. J.1.EV OlOVtat OEtV OUtro tOu~ VOJ.1.0U~ ayopEUElV, 01. DE Kat 
xproVtal Kat KroAuOUOlV f~ro tOU np6.YJ.1.atOC; AEynv, Ka86.nEp 
Kat EV 'Apdq> nayq>, op9roc; 'tou'to VOJ.1.lS0V'tEC; ... fn (5£ <pavEpov 
Ott tOU J.1.EV aJ.1.q>to~TltOUvtO~ OUOEV fattv f~ro tOU OEt~El to 
npuYJ.1.a Ott fattV 11 OUK fattV, 11 YEyOVEV 11 OU YEYOVEV' Ei (5£ J.1.Eya 
11 J.1.lKPOV, il (5lKaLOv il (i(5lKOV, ooa J.1.11 (, vOJ.1.o8£'tTlC; (5l(OPlKEV, 
au'tov (5iJ nou 'tOY (5lKao'tllv (5El YlYVWOKElV Kat OU J.1.av8avElv 
napa trov aJ.1.q>la~TltOUvtrov. 17 The speaker is to confine himself 
to the facts and to avoid extra-legal questions. But the judges are 
not "forbidden" from entertaining extra-legal argumentation 
except in the oath, which is already mentioned in the first pair of 
arguments and is unlikely to be implied again in the last pair. 

The tension between considerations of fairness and advan­
tageousness in the fourth pair of arguments seems almost 
inverted here. The positive argument, with its recourse to 
unwritten laws ("die fundamentalen Rechtsnormen des Zusam­
menlebens"), evokes the idea of a greater advantage for the 
polis. But fairness, which is essentially extra-legal in character, 
cannot be used in support of the legal side of the argument. So in 
its stead Aristotle goes full circle by using an argument 
reminiscent of the beginning of the Rhetoric and with it closes 
his discussion of law. 

17 See also Ath. Pol. 67.1; Dem. 23.96f; Lys. 3.46. 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

404 ARISTOTLE ON THE RHETORIC OF LAW 

Between the arguments for and against extra-legal argumenta­
tion Aristotle inserts two sentences concerning the interpreta­
tion of a law or laws and the obsolescence of a law (I have 
modified Kassel's punctuation somewhat to reflect my view 
that Aristotle means to treat interpretation within a single 
sentence): 

1375b8-13: Ka1 El1to'U £vav'tto~ VOJlq> £UOOKtJlOUvn 11 
Ka1 au'to~ 0.1>1:0 (olov £VlO1:£ 0 JlEV K£A£UEl KUpta dval 
a1:'t' av 0''Uv8WV'tal, 0 0' cl7tayop£uEl Jlil 0''Uv'tl8£0'8al 
1tapa 'tOY VOJlOV) Kat d UJl<Pl~OAO~, wO''t£ O''tPE<pElV Kat 
opav £<p' o1to't£pav 'tilv uywyT)v 11 'to blKaLOV £<papJloO'El 
11 'to O''UJl<P£pov, £i'ta 'tou'tcp xpn0'8al. Ka1 d 'ta JlEV 
1tpaYJla'ta £<p' ol~ £1:£811 0 VOJlO~ Jl11KEtt Jl£VEl, 0 oE 
VOJlO~, 1tElpa't£ov 'tOU1:0 b11AOUV Kat Jlax£0'8al 'tau'tTI 
7tPO~ 'tOY VOJlOV. 18 

Interpretation is needed both where there is a conflict be­
tween two laws or between clauses of a single law and where 
there is some ambiguity in a law. In both situations the tension 
between considerations of fairness (here represented by 'the 
just') and universal law (again represented by 'the beneficial') 
comes into play. Since the written law or laws are unclear, 
extra-legal argumentation needs to be introduced. 

These sentences are logically and syntactically different from 
those of the other ten arguments. The others can be introduced 
in any situation. A litigant can always attempt extra-legal 
argumentation even if he wishes to circumvent only a minor 
clause in a law. But in the case of these two sentences inserted in 
the middle, certain conditions must be true: either an antinomy 
or an ambiguity in the law must exist, or else the relevant law 
must be obsolete. But these conditions do not always exist, so 
Aristotle casts the sentences in a conditional form. 

18 ,. And if somehow a law is contradictory to a well-reputed law, or even to 
itself (such as the one that says that those things agreed under contract are 
binding, and the other that forbids illegal contractual obligations), as well as if 
it is ambiguous, so that one must turn it over and see which interpretation 
accords either with the just or with the beneficial, one must use this in­
terpretation. And if the circumstances under which the law was passed no 
longer remain, but the law does, one must try to clarify this and to fight in this 
way against the law." 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

DAVID C. MIRHADY 405 

In sum, the proposal for extra-legal argumentation (1-5 above) 
asserts that the written law is at least partly wrong-or wrong 
for a particular situation-and so must be at least partly and 
perhaps only temporarily suspended so that there can be a just 
decision in the case at hand; but it does not assert that the 
written law is wholly wrong. The sentence on legal in­
terpretation, on the other hand, asserts only that the written law 
is unclear; it makes no claim about the validity of the law. Only 
the second of the two middle arguments suggests that a law, 
because of changing circumstances, can be no longer valid. 

III 

Aristotle discusses two aspects of contracts, their credibility 
and their validity. In the first part of the section (1367a33-b7) he 
points out that their credibility is inextricably tied to that of their 
signatories and custodians and suggests that the interested reader 
should pursue a line of argumentation about their credibility by 
means of his treatment of witnesses. The second part of the 
section, in which he discusses the validity of a contract, shows 
surprising similarities to his treatment of law. Of course 
Aristotle makes much of the inherent likeness of a contract to a 
law, but the similarities in the two accounts do not stop there. 
The order is reversed from that in the discussion of laws, with 
arguments in favor of contracts given first; but the same 
symmetrical pattern is followed with four coordinated ar­
guments on each side. As at I37Sa26 and b16 Aristotle coor­
dinates the JlEV at I376b6 with the OE at bIS. 

(i) 
1376b7f: 1) yap cruvEhlK1l VOJlO~ EcrtlV tOLO~ Kal Kata , 
JlEpO~. 

1376b17f: at01tOV yap d tOl~ JlEV VOJlOt~, av Jlll op8&~ 
KdJlEVOt c1crtv UAA: E~aJlaptwcrtv Ot tt8EJlEVOt, OUK 
oiOJlE8a OEtv 1td8Ecr8Ut, tUl~ OE cruv8ftKat~ uvuYKatov. 19 

19 "'The contract is a private law and applies to particulars." "'For it is strange 
if we think we do not have to obey laws whenever they are not rightly framed 
and those who made them were mistaken, but (think it) necessary to obey 
contracts. " 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

406 ARISTOTLE ON THE RHETORIC OF LAW 

As in the section on law, this first pair of arguments puts the 
legitimacy of extra-contractual argumentation under discussion. 
The first positive argument presents the contract as a private 
law; but in contrast with a law that a city legislates for itself (see 
1368b7f), a contract is valid only in a limited way, that is, 
between private individuals. Against this Aristotle suggests a 
premise that he would not have formulated against an actual law, 
namely, that one does not have to obey a law that has been 
improperly made. In the section on law Aristotle never 
indicates that legislators make mistakes (although at 1.13 
[1374a29f] he does suggest something of the sort), even when he 
has great reason to do so. Perhaps he felt that although one must 
admit privately that legislators do make mistakes, it would be 
impudent to do so before a court. But in this case the 'tl9iJ.1.£VOl 
are only to be thought of as private legislators, who are making 
laws for themselves; they are not vOJ.lo9i'tal. Of course the 
larger implication is there, but the negative argument seems least 
threatening when, in juxtaposition to the positive argument, it 
appears to relate only to an t()lOe; VOJ.1.0e;, in the sense that it is 
fashioned by and governs individuals acting privately. 

(ii) 
1376b8f: Kat Clt J.1.EV cruv911KCll OU 1tOlOU<Jl 'tOY VOJ.1.0V 
ri>plOv, Ot bE VOJ.lOl 'tae; Ka'ta 'tOY VOJ.lOV <JUV911 Kae;. 

1376bI9-23: Et'tCl O'tl 'tOU ()lKalOU Ecr'tl PPClP£u'tlle; 0 
()lKacr'tlle;· OUKOUV 'tOU'to crKE1t'tEOV, aAA: we; ()lKCll­
O't£POV· Kat 'to J.1.Ev blKalOv OUK (cr'tl J.1.£'tClcr'tpi'Val OU't' 
a1ta'tTI OU't' avaylCTI (1t£CPUKOC; yap E<J'tlV) , cruv911Kal bE 
Ylyvov'tal Kal E~a1ta'tT19iv't(J)V Kat avaYKacr9iv'tC.llv.20 

The second positive argument appears to be an attempt to 
anticipate an argument of the sort given at 137Sb9f: Olov EVlO'tE 0 
J.1.EV (voJ.1.0e;) K£Ad)Et Kupla EtVal 'l't't' av cruv9&v'tal, 0 ()' 

20 «And contracts do not make laws valid, but laws give validity to contracts 
made in accordance with law." "And then that the judge is an umpire of 
justice; it is not this (the contract) that must be examined, but with a view to 
what is more just; indeed it is not possible to pervert justice by deception or 
compulsion-for justice is based on nature-but contracts are among those 
things affected by deceit and compulsion." 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

OA vro c. MIRHAOY 407 

a1to:yopEl)Et J.1Tt auv'tHh:a8at 1tapa 'tOY V0J.10V. 21 Thus the 
negative argument admits such an argument from the beginning 
by not even challenging the validity of the contract, but instead 
changes the focus of the dispute to extra-legal argumentation, 
this time focusing on the possible peculiarities of the case 
(deception or compulsion) that might suggest an extra-legal 
approach. Again reference to the details of the case and the 
word OtKato'tEpoV suggest that Aristotle's 'justice' implies his 
no~ion of fairness, a key intellectual tool for extra-legal argumen­
tation. 

(iii) 
1376b9-11: Kal OA.oo<; a1>'to<; 0 Vo~LO<; ouv811KTI n<; fOtly, 
WO'tE oon<; U1ttO'tEl il UVatpEl ouy8ilKllV, 'tou<; YO~ou<; 
UvatpEl. 

1376b23-29: 1tpo<; O£ 'tou'tOt<; OK01tElV Ei fvav'tla fO'tl nvt 
11 'twv YEypa~~Evoov VOJ.1COV 11 'tWV KOtVWV, Kat 'tWV 
YEypa~J.1EVOOV 11 'tOl<; OiKdou; 11 'tOl<; UA.A.o'tplOt<;, £1tEt'ta Ei 
liA.A.at<; ouv8ilKat<; uo'tEpat<; il 1tpO'tEpat<;· at yap 
uo'tEpat KUptat, 11 at 1tpo'tEpat opSal, at 0' uo'tEpat 
Tt1ta'tllKaotv, 01tO'tEPCO<; liv n XPllOt~OV. 22 

The coordination of the third pair of arguments is suggested by 
the word -ru;: the negative argument concedes that a law is in 
general a certain sort of contract, but the implication of the 
phrase is that there are other contracts as well as other laws. For 
this reason the potential conflict between the contract, on the 
one hand, and laws and other contracts, on the other, can be 
exploited. Five cases are distinguished altogether. Interestingly, 
this pair of arguments corresponds to the two sentences in the 
section on law that deal with the interpretation and obsolescence 
of a law or laws (1375b8-15). Conflicts with contemporary laws 

21 Cf Hyperides Ad'll. Ath. 6: epEl OE rcpoc; UJlUC; au'dlm !luAu 'ASTlVOYEVTlC;, 
roc; 0 VOJlOC; Aiyu, oaa UV £'tEPOC; £u:PC? O!lOAoyrlO'1l, !CUpta dvm. 

22 • And in general the law is itself a certain sort of contract, so that whoever 
disobeys or abolishes a contract abolishes the laws." "In addition, examine 
whether the contract is contrary to any written or universal laws, and in the 
case of written laws either to those of the city or foreign ones, and then 
(whether it is contrary) to earlier or later contracts; for later contracts are valid, 
or else the earlier are correct and the later deceitful, whichever argument is 
useful. " 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

408 ARISTOTLE ON THE RHETORIC OF LAW 

and contracts are mentioned first, then cases in which contracts 
have been superseded. Also like those two sentences, this pair 
of arguments is set off from the previous ones by a distinct 
stylistic device. The first two pairs are coordinated, the positive 
arguments connected simply by a Kat (1376b8) and the negative 
arguments, which are longer, with 7tPWtOV JlEV (1376b 15f) and 
de' (bI9). The presence of 01..00<; in the third positive argument 
and of 7tpo<; OE tOUto\.<; in the negative signals a qualitative shift in 
this argument similar to the one accomplished by the shift from 
the repeated Kat on to the conditional construction in the 
section on law. 

Here the sense of 'universal laws' differs from that implied in 
the latter part of the section on law, where the phrase conveyed 
the general purpose of law, namely what is beneficial, rather than 
definite rules ('Rechtsnormen'), as in Antigone's appeal at 
1375blf. But the connection is not totally severed. The 
implication of the positive argument is that by nullifying a 
contract and so destroying the laws, one is doing something that 
is 'in general' harmful, since laws exist for the general benefit of 
the polis. Thus we see underlying this pair of arguments 
conflicting aspects of KOtVO<; VOJlo<;, law in general, and a definite 
universal law. 

(iv) 
1376bll-14: En oE 7tp<htEtat ta 7tOA1..a twv auva1..1..ay­
JleXtoov Kal ta EKOUOta Kata ouveilKa<;, roOtE aKupwv 
ytYVOJlEVWV avalJ'E'itat 'h 7tpo<; a1..1..Tt1..ou<; xpda trov 
av6po)7twv. Kat taAAa or oaa apJlottEt, E1tt7tOAl1<; iodv 
Eanv. 

1376b29-31: En or to aUJl<pEpoV opav, El 7tOU Evav­
noutat to'i<; Kptta'i<;, Kat oaa uAAa totouta' Kat yap 
tauta Eu6EwPTlta oJloioo<;.:B 

The last pair of arguments (and the suggestion of further 
unsketched arguments) goes beyond considerations of law and 

23 "Moreover, most voluntary transactions are done in accordance with 
contracts, so that if they become invalid, the commerce of people with each 
other is destroyed. And the other suitable things are obvious." "Moreover, 
look at the beneficial, if perhaps there is something contrary to the interest of 
the judges, and anything else of this sort; for these things are easy to see in a 
similar way." 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

DAVID C. MIRHADY 409 

justice to what is advantageous for the polis as a whole inasmuch 
as it is represented by the judges. The positive argument points 
out that in general, contractual agreements are the basis of 
commerce among human beings and thus ought not to be 
threatened (see Eth. Nic. 5.5, 1133a25-blO); the negative argu­
ment ignores what is true in general and appeals specihcally to 
the advantage to the judges. 

It is interesting to see how Aristotle has distinguished the idea 
of universal laws, which he mentions in the third pair of ar­
guments, from that of the advantage to the judges; they are 
linked in argumentation about law. He can do so because of the 
difference between a contract and a law. A law, as an act of the 
state, is in that sense proprietary to that state and to the judges as 
its representatives. Extra-legal argumentation, which obviously 
affects the status of the law, can thus be made directly with 
regard to the judges without explanation. But in the case of a 
contract, which is an agreement only between private in­
dividuals, a distinct plea must be made to the judges to assert 
their own interests. Neither the positive nor the negative 
argument make any appeal to justice or to the legitimacy of such 
argumentation; the whole matter is reduced to the judges' 
beneh t. 

The passages discussed above stand at a junction between 
philosophical thought about the nature of justice, law, and 
contracts, and the practical considerations of argumentation in a 
courtroom. They lead to further considerations about the way 
the Attic orators treat laws and contracts in the courtroom and 
abou t the intellectual milieu in which Aristotle did his 
jurisprudential thinking. Here he does not simply present 
sophistic tricks, or means of making the weaker argument the 
stronger, but sketches lines of reasonable (from his point of 
view) argumentation that exist on both sides of the issues, 
argumentation the judges should consider before making a 
decision. These lines of reasoning are based upon the procedural 
rules of the court, such as those inherent in the heliastic oath, 
upon the philosphical concepts involved, and upon the roles to 

be played by the judges and speaker. These rules, concepts, and 



MIRHADY, DAVID C., Aristotle on the Rhetoric of Law , Greek, Roman and Byzantine Studies, 
31:4 (1990:Winter) p.393 

410 ARISTOTLE ON THE RHETORIC OF LAW 

roles are for Aristotle the rhetorician to EVOEX0J.1.EVOV 1tl6avov 
(1.2 1355b26) of the rhetoric of law.24 

RUTGERS UNIVERSITY 

July, 1990 

24 This paper was prepared during a year at the Seminar fur klassische Philo­
logie, Gottingen, under the sponsorship of the German Academic Exchange 
Service (DAAD), and a version was read at the Victoria meeting of the 
Canadian Society for the History of Rhetoric in May 1990. The translations 
are my own, in consultation with Professor George Kennedy.