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the law are the province of “equity” (epieikeia), which is “but a correction
of legal justice.” Providing for such correction is intrinsic to Aristotle™s
idea of law because he takes the generality of rules to mean that they are
correct for the “average case”: “The reason [for the existence of such a
corrective] is that all law is universal but about some things it is not
possible to make a universal statement which will be correct. . . . And
this is the nature of the equitable, a correction of law where it is defective
owing to its universality.” Indeed, Aristotle goes even further to say
that “this possible defect of law” will also explain why not all questions
can be settled by law: “about some things it is impossible to lay down a
law, so that a decree is needed. For when the thing is indefinite the rule is
also indefinite. . . .”37
Whereas Plato saw only two possibilities, that the judge either applies
the law strictly or departs from it, Aristotle introduced a third kind of
decision in which the judge complements the work of the legislator. Plato

35 36
Nicomachean Ethics 1137b20“24. Rhetoric I, 1375a22“b35.
37
Nicomachean Ethics I, 1137b12“30.
Aristotle 35
described equity as a dispensation from the law, a kind of leniency that is
a corruption of the justice embodied in law. To modify the law by
epieikeia is therefore necessarily an abrogation of the law. But in
Aristotle™s usage, epieikeia takes on the connotation of a correction of
the letter of the law. It is law adapted to particular circumstances, and this
is the province of the judge. His duty is to act in place of the legislator,
as if he were the legislator on the spot, so as to arrive at the decision that
the legislator would have chosen if he had been confronted with the
particular case. The law enables the judge to do this because it tells him
how to think as did the legislator. By describing the judge™s use of
epieikeia as a bridging of the gap between the law and the concrete world,
Aristotle made the judicial decision part of the shaping of the law and not
just an enforcement of the legislator™s will.
The gaps in the law that call for decisions according to “equity” also
explain how advocates may defend cases that appear to run against the
written law. If he wishes to win, Aristotle advises, the pleader
must appeal to the universal law and to equity as being more just. We must argue
that the juror™s oath “I will give my verdict according to my honest opinion”
means that one will not simply follow the letter of the written law. We must urge
that the principles of equity are permanent and changeless, and that the universal
law does not change either, for it is the law of nature, whereas written laws
often do change. . . . We shall argue that justice indeed is true and profitable, but
that sham justice is not, and that consequently the written law is not, because
it does not fulfill the function of the law. Or that justice is like silver, and must
be assayed by the judges, if the genuine is to be distinguished from the counterfeit.
Or that the better man will follow and abide by the unwritten law in preference
to the written.38
In other passages, Aristotle suggests that the “gaps” in the law may also
be filled by appeal to “unwritten law” in the sense of “what is customary.”
And at times, Aristotle speaks as if what is “equitable” may be identical
with what is customary, as well as with “natural law.”
Although all these arguments imply that law is necessarily defective,
Aristotle does not conclude that the law should thus be disregarded
whenever it seems to be undesirable. His emphasis falls rather on the
need to supplement the law. But that his suggestions for correcting the law
could destroy it, because the materials used to fill “the gap” are so various
and undefined, is overlooked by Aristotle. Nowhere does he consider how
an appeal to “equity” or “custom” may be distinguished from an attempt
to promote selfish interests. Nor does he recognize that his account of
adjudicating contradicts much else that he says. For it implies that a

38
Rhetoric I, 1375a27“b8.
36 Law anchored to a cosmic order

judicial decision is concerned with achieving certain consequences, and
that the proper question for a judge to ask himself is: “What would be the
right outcome here?” And this removes the distinction between the judge
and the arbitrator on which Aristotle otherwise insists “ “An arbitrator
goes by the equity of a case, a judge by the law,”39 which means that the
judge should be concerned with maintaining what has already been
established by the legislator, rather than with producing any particular
results. Aristotle makes the same point in his distinction between laws and
decrees, where he argues that rule by law is preferable because it means
that decisions are not determined by the passions of the moment, but by
the judgment of the legislator, which “is not particular, but prospective
and general.”40 Aristotle thereby implies that decisions according to law
should not be concerned with producing any particular substantive con-
sequences here and now. In short, Aristotle was troubled in the same way
as Plato by the difficulty of reconciling the impersonality and generality of
law, which enables it to secure men against arbitrary, self-interested
rulers, with the recognition that these qualities put law at odds with the
mutable and various reality of the world on which it tries to impose order.
Aristotle recognized that the shortcomings of law considered in his
discussion of equity gave support to the opponents of the rule of law. In
answer to them, he suggests that the rules of law should not be regarded
as blueprints or designs to be copied, but rather as signposts, directions,
or instructions for how to proceed in thinking about the correct answer.
Law “[does the best it can: it] trains the holders of office expressly in its
own spirit, and then sets them to decide and settle those residuary issues
which it cannot regulate ˜as justly as in them lies™.” On the whole, “All
persons in office who have been trained by the law will have a good
judgment,” and if there are a number of cases that law seems unable to
determine, it is also true that a personal ruler would be no better able to
find satisfactory answers for such cases.41 Above all, Aristotle emphasizes
the identity of law with reason by pointing out that a just ruler also
necessarily decides in terms of general rules because he is governed by
reason, and reason always looks to the universal: “Those who hold that
kingship is expedient argue that law can only lay down general rules; it
cannot issue commands to deal with various different conjunctures; and
the rule of the letter of law is therefore a folly in any and every art. . . But
we have to remember that general principles must also be present in the
ruler™s mind.” Unlike Plato, Aristotle points out that even if we could find
the “one best man to rule,” he, too, would rule by law because that is the


39 40 41
Ibid., I, 1374b21. Ibid., I, 1354b6“8. Politics III, 1287a“b.
Aristotle 37
only way in which he could make certain that his decisions were not
tainted by passion: “That from which the element of passion is wholly
absent is better than that to which such an element clings. Law contains
no element of passion; but such an element must always be present in the
human mind. . . . These considerations lead us to conclude that the one
best man must be a law-giver, and there must be a body of laws (even in a
state which is governed by such a man), but these laws must not be
sovereign where they fail to hit the mark “ though they must be so in all
other cases.”42 The advantage of rule by the best man, according to
Aristotle, is not that he would dispense with law, but that he would make
better laws and fill their gaps more perfectly.
But this argument in defense of law only serves to underscore
Aristotle™s struggle with the difficulty of choosing between two views
of the generality of law that have continued to trouble all his successors:
The blueprint view of rules (to which Plato adhered completely) success-
fully expresses their impersonality and stability, but excludes any possi-
bility of adjusting law to circumstance. The signpost view of rules (which
Aristotle developed) allows for flexibility, but at the cost of destroying
the impersonality and stability of law. Much of Aristotle™s discussion of
the relation between general rules and particular decisions oscillates be-
tween these alternatives, sometimes attempting to combine them, but
never succeeding.
In addition, however, Aristotle suggested a third way of understanding
the relation between rules and decisions. He speaks of the law as applying
to “classes” of individuals and acts and describes the judge™s decisions as
“a perception akin to that by which we perceive that the particular figure
before us is a triangle.”43 The logic by which a judge moves from a legal
rule to a decision, which has been called “reasoning by example,” is
analyzed in the Prior Analytics as follows:
We have an “example” when the major term is proved to belong to the middle by
means of a term which resembles the third. It ought to be known both that the
middle belongs to the third term, and that the first belongs to that which
resembles the third. For example let A be evil, B making war against neighbours,
C Athenians against Thebans, D Thebans against Phocians. If then we wish to
prove that to fight with the Thebans is an evil, we must assume that to fight
against neighbours is an evil. Evidence of this is obtained from similar cases, e.g.
that the war against the Phocians was an evil to the Thebans. Since then to fight
against neighbours is an evil, and to fight against the Thebans is to fight against
neighbours, it is clear that to fight against the Thebans is an evil. Now it is clear
that B belongs to C and to D (for both are cases of making war upon one™s


42 43
Ibid., III, 1286a“b. Nicomachean Ethics VI, 1142a28“30.
38 Law anchored to a cosmic order

neighbours) and that A belongs to D (for the war against the Phocians did
not turn out well for the Thebans): but that A belongs to B will be proved through
D. Similarly if the belief in the relation of the middle term to the extreme should
be produced by several similar cases. Clearly then to argue by example is neither
like reasoning from part to whole, nor like reasoning from whole to part, but
rather reasoning from part to part, when both particulars are subordinate to the
same term, and one of them is known. It differs from induction, because
induction starting from all the particular cases proves (as we saw) that the major
term belongs to the middle, and does not apply the syllogistic conclusion to the
minor term, whereas argument by example does make this application and does
not draw its proof from all the particular cases.44

This kind of reasoning is discussed also in the Rhetoric, where Aristotle
describes it as the logic appropriate to deliberation that deals with things
that are “probable,” that is to say, that happen generally but not neces-
sarily and “may be other than they are.” In other words, Aristotle distin-
guishes a kind of reasoning suitable to practical affairs, which reasoning
cannot issue in indisputable truth because it deals with contingent things
and does not start from indisputable propositions, but which nevertheless
has a distinct and orderly character.
Aristotle™s “reasoning by example” has in recent years been redis-
covered as a description of legal reasoning45 which can explain how legal
rules can be stable while decisions are adjusted to particular circumstances.
But Aristotle himself did not make that connection. He bequeathed a
clear idea that the law contains a movement from the general to the
particular and suggested different ways of understanding this movement,
but he did not devote himself to explaining it because the question about
the logic of law was not at the center of his idea of law.
Aristotle emphasized not only that contingency is inseparable from the
nature of law, but also that the contingency operates in two ways. It
affects, on the one hand, the relation of law to the universal principles that
are the standard for all law because these principles are not a pattern that
human laws imitate, but rather highly abstract requirements that can be
translated into concrete rules in many different ways, about which there
may be reasonable, irresolvable disagreement. Therefore, even though it is
certain that human laws can be judged by eternal universal principles to
which human reason has access, whether the judgment made is correct
cannot be known with certainty. On the other hand, there is contingency
in the relation of law to particular cases due to the generality of rules of

44
Aristotle, Prior Analytics 68b“69a, in The Works of Aristotle, trans. W. D. Ross, vol. I
(Oxford: Clarendon, 1928).
45
Cf. Chapter 11.
Aristotle 39
law. There are consequently “gaps” in the law, and these are the proper
subject for “equity,” which adapts law to changing circumstances but
cannot give indisputable decisions.
Both theoretical and practical reason enter into the law in another way
that makes it impossible to purify the law of contingency. Theoretical
reason enables men to know the abstract principles by which to judge
their constitutions, but it cannot tell them how to construct a constitution
for any particular historical community. Recognizing a constitution limits
the area of disagreement about what rules to make here and now about
particular matters, and the rules made by the legislator further limit the
area of disagreement about how to resolve particular disputes. But in
the end the judge must decide, and there can be no certainty about the
correctness of his decision. The law accordingly has the character of
an inverted pyramid in which reason operates at increasingly concrete
levels to restrict disagreement about conclusions that are irremediably
contingent, but without ever removing altogether the possibility of
disagreement.
The effect of Aristotle™s treatment of law is to emphasize its uncertainty
and fragility. Although this suggests that making changes in the law is a
perilous operation, he considers why allowing the law to be changed may
nevertheless be desirable. In arts, such as medicine and physical training,
he points out, there have been great improvements, and as politics is also
an art or form of skill, “it can be argued logically that the same must also
be true of politics.” The ancient usages were simple and uncivilized, and
the relics that still remain “are utterly absurd.” Since men “as a rule, seek
to follow, not the line of tradition, but some idea of the good,” it would
seem ridiculous to remain constant to what is established. Such consider-
ations are even more pertinent to written laws than to “unwritten custom”
because the first form of a law is bound to be “inexact” and “need[s] to be
changed in the light of further experience of men™s actions in detail.”
Nevertheless, Aristotle concludes by emphasizing the reasons for refrain-
ing from making changes in the law: “When we reflect that the improve-
ment likely to be effected may be small, and that it is a bad thing to
accustom men to abrogate laws light-heartedly, it becomes clear that there
are some defects, both in legislation and in government, which had better
be left untouched.” The benefit of the change will be less than the loss that
will likely result “if men fall into the habit of disobeying the government.”
Indeed the analogy from the arts is false. Changing the practice of an
art does not have the same effect as changing the law because “It is from
habit, and only from habit, that law derives the validity which secures
obedience. But habit can be created only by the passage of time; and
40 Law anchored to a cosmic order

a readiness to change from existing to new and different laws will
accordingly tend to weaken the general power of law.”46
In this discussion, Aristotle enlarges the idea of law to include “a habit
of obedience.” He thereby adds a different kind of consideration to
discussions about the desirability of altering the law. Not only must the
direct consequences of a change in law be considered, but also its indirect
effects on the attitude towards law. This is, of course, entirely consistent
with Aristotle™s emphasis on the need to consider the effectiveness of law
and the importance of learning in all aspects of human life. And he
concludes, much as Cleon argues in Thucydides, that it is better to have
imperfect but stable laws rather than good laws that do not command
obedience because the benefit of change is likely to be less than the
damage resulting from weakening the habit of obedience.
Along with Plato and others in ancient Greece, Aristotle took the
essence of law to be that it provides men with something fixed which
protects them against the disorder to which their mortal condition ex-
poses them. Just as Plato says in the Laws that if men lived without laws,
they would be no different from the most savage beasts, so Aristotle says
in the Politics, “Man, when perfected, is the best of animals: but if he be
isolated from law and justice he is the worst of all.”47 His picture of law as
a hierarchy of regulations of increasing degrees of fixity and generality is
rich enough to accommodate apparently incompatible qualities and can
explain how the law imposes order and unity at an abstract level while
allowing change and heterogeneity to reign at more concrete levels. It can
explain how, even though the law cannot wholly eliminate injustice and
uncertainty, it can impose a moral order and ensure stable expectations. It
can also explain how the justice and stability of a legal order can allow a
constantly changing diversity to flourish.
Aristotle™s explanation of how the law can provide a fixed barrier
against the fluidity of the human world and at the same time accommo-
date it is made possible by his distinction between theoretical and prac-
tical reasoning. That distinction rests on his assumption that human
beings can achieve indisputable knowledge of a cosmic order and reason
from that knowledge to conclusions about the contingent human world.
When that assumption was rejected by Aristotle™s modern successors, the
distinction between theoretical and practical reasoning was lost. And until
its restoration on a new basis well into the twentieth century, it became
impossible to reconcile the fixity of law with its contingency.
Aristotle did not succeed, however, in resolving another problem raised
by Plato. By describing law both as a pattern for “the good life” and as

46 47
Politics II, 1268b“1269a. Ibid., I, 1253a.
Aristotle 41
the bond of a polis, characterized by the diversity and independence of its
members, he produced a sharper version of the tension between Plato™s
two senses of justice. In Aristotle™s account, this tension takes the more
definite shape of what in modern times would be described as a conflict
between justice and liberty. In other words, we have inherited from the
ancient Greeks two ideas of law, one as a means to preserving peace
among heterogeneous associates and the other as a means to achieving
perfection. In addition, Aristotle opened but did not answer the question:
How can we acknowledge standards other than legal without denying
an obligation to observe the law? It was left to his medieval successor,
Aquinas, to struggle with that question and to his modern successors to
dismiss it.
3 Cicero
_____________________________________________________________________________________________________________________________________________________



The discussion of law takes a radically different turn with Cicero. He
departs not only from Plato, whom he regarded as his master, but also
from the entire Greek tradition by taking little interest in what the
Greeks emphasized: that law consists of rules that are clear and fixed
and publicly known to be so. One reason for this may be that Cicero was
reflecting on the very different experience of the Roman Republic
where there was little law in the form familiar to Plato and Aristotle,
that is to say, explicitly formulated rules authoritatively declared to the
public. The Twelve Tables, which were supposedly based on Greek
models and enacted in the middle of the fifth century, were not a set of
rules, but decisions on certain matters that were commonly disputed.
Their provisions varied in form as well as substance and, taken as a
whole, the Twelve Tables hardly constituted a comprehensive system of
law. Nor is it clear how they were related to the many different sources of
lex or rules for both private and public actions.
Although in the early Republic lex was generally spoken of as a
declaration of the unchanging law, it was by no means obvious whether
such rules were enactments of new law or merely declarations of existing
law. And what constituted existing “law” was far from clear. Not only the
edicts of a great variety of magistrates, but also informal arguments were
used to settle disputes. There was besides “jurist-law,” developed by
people who dedicated themselves to knowing and making what were
regarded as authoritative decisions, but who had no official position
either as legislators or judges. These “jurists” were the only people who
were acquainted with the whole field of private law. They provided what
were described as “regulae” which were “standards” or “criteria” for
deciding disputes but were not, strictly speaking, rules of law.
Little or nothing was done officially to publish legal rulings. Magis-
trates had a remarkable degree of discretion. The Greek practice of
allowing individuals to charge a magistrate with failing to provide due
legal protection was unknown among the Romans. Though the magis-
trate could be called to account when his term of office expired, he was


42
Cicero 43
later made immune to legal prosecution. If in practice there was little
interference by officials in the private sphere of the individual, there was
no formally established limit to the officials™ powers. It was rather as-
sumed that magistrates had unlimited discretion to grant or withhold
rights. The rule, “no crime without law, and no punishment without
law,” was unknown. Legislation and adjudication were regularly con-
founded by being lodged in the same hands and by indifference to keeping
the distinction clear. And juristic discussions were concerned not with
whether a rule was clearly established, but with whether the effects of a
particular decision were desirable. The Roman Republic™s way of dealing
with law has been commended for its love of flexibility and as the source
of later Roman legal inventiveness, but it also suggests that the Republic
was not much concerned with securing the rule of law in the sense that
concerned Aristotle.
Certainly Cicero shows no great concern with the fixity of law. The
most obvious sign of this indifference is his use of the terms ius and lex.
In the traditional usage of his time, lex referred to a declaration of an
authoritative decision, and ius referred to the ground of this declaration.
Ius sometimes denoted custom or unwritten law as opposed to the written
law or lex expressed in the Twelve Tables. It has also been suggested that
ius referred to the king™s law or to patrician law, as opposed to the law of
the Republic or plebeian law. But it is generally agreed that ius referred to
the broader body of prescriptions or ideas about right and wrong of
which lex was a particular determination. Cicero reversed the traditional
usage. He either used lex to denote the broader sense of ius or treated the
two terms as synonymous.
He similarly transformed the meaning of ius gentium. In its earliest
meaning, ius gentium meant “the law common to nations,” that is to say, a
convention that was an appendage to the ius civile and was intended to
facilitate dealings with foreigners. Later ius gentium denoted common
usages observed in commerce and general intercourse. By the second
century b.c., it had become a quasi-technical term that distinguished
universal and informal usage from the ius civile. But, writing in the first
century b.c., Cicero, in De Officiis, speaks of ius gentium as “universal
law” that derives its sanction from nature and belongs with the idea
of the common brotherhood of man that transcends national differences.
It becomes, in other words, a synonym for natural law and, as such, a
standard for civil codes that requires them to respect man™s essential
nature. Cicero accordingly insisted that “Law is not a product of human
thought” nor any enactment of peoples, but “something eternal which
rules the whole universe by its wisdom.” Its commands and prohibitions
are one with “the primal and ultimate mind of God, whose reason directs
44 Law anchored to a cosmic order

all things either by compulsion or restraint.” Thus Cicero implies that
law and reason came into being together “ “reason did not first become
Law when it was written down, but when it first came into existence; and
it came into existence simultaneously with the divine mind.” And there-
fore, “just as that divine mind is the supreme Law, so, when [reason] is
perfected in man, that also is Law. . . .”1 For when reason is “firmly fixed
and fully developed in the human mind,” it is law.2 And as “that Law
which the gods have given to the human race” is the “reason and mind of
a wise lawgiver applied to command and prohibition,”3 everything done
in the human world is done by the gods who are “the lords and rulers
of all things.”4 In short, Cicero identified “law” with “reason,” and by
reason he meant the directing principle of the universe.
The conception of the cosmos as a rational order and of human reason
as a participation in that order, on which this description of law rests,

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