Rhetoric

​Next, in connection with what has been said, we must run through what are called the inartificial proofs; for these are peculiar to forensic oratory.

​They are five in number: laws, witnesses, contracts, tortures, and oaths.

​First, then, let us speak about laws, and how one should use them both when exhorting and dissuading, and when accusing and defending.

​For it is clear that, if the written law is contrary to our case, we must use the common law, and more equitable and more just arguments.

​And that the oath “according to the best judgment” means this: not to rely entirely on written laws.

​And that equity always remains and never changes, nor does the common law (for it is according to nature), whereas written laws often change; whence the words in Sophocles’ Antigone are spoken, where she defends herself for burying her brother contrary to Creon’s law, but not contrary to the unwritten law: “For not now nor yesterday, but always and forever does this live. For these I did not intend, through fear of any man’s pride, to suffer punishment from the gods.”

​And that what is just is true and useful, but not that which only seems to be so; wherefore the written law is not a law, for it does not perform the function of a law. And that the judge is like a money-changer, so that he may distinguish counterfeit justice from the true.

​And that it belongs to a better man to use and abide by the unwritten laws rather than the written.

​And if a law is contrary to a well-reputed law or even to itself; as sometimes one law commands that whatever agreements men make shall be valid, while another forbids making agreements contrary to the law.

​And if a law is ambiguous, so that one can turn it and see to which interpretation either justice or utility will apply, and then use it.

​And if the circumstances under which the law was enacted no longer remain, but the law does, one must try to make this clear and fight against the law on this ground.

​But if the written law is in favor of our case, then, as to the oath “according to the best judgment,” we must say that it is not meant for judging contrary to the law, but so that, if the judge does not know what the law means, he may not commit perjury. And that no one chooses what is absolutely good, but what is good for oneself. And that it makes no difference whether a law is not enacted or not used. And that in the other arts it is not beneficial to try to be cleverer than the physician; for the error of the physician does not do so much harm as the habit of disobeying the authority. And that to seek to be wiser than the laws is exactly what is forbidden in well-esteemed laws. Concerning laws, then, let things be defined in this way.

​Concerning witnesses, there are two kinds: ancient and recent; and of these, some share in the danger, while others are outside of it. By ancient witnesses I mean both the poets and all other famous men whose judgments are known; as the Athenians used Homer as a witness concerning Salamis, and the Tenedians recently used Periander of Corinth against the Sigeians, and Cleophon used the elegiacs of Solon against Critias, saying that his family had long been dissolute; for otherwise Solon would never have written: “Tell red-haired Critias to listen to his father.”

Concerning the past, then, such are the witnesses, but concerning the future, soothsayers also are witnesses; as Themistocles said that they must fight at sea, referring to the “wooden wall.” Moreover, proverbs also, as has been said, are testimonies; for example, if anyone advises not to make an old man a friend, the proverb bears witness to this: “Never do good to an old man” and as for killing the sons whose fathers one has killed: “Foolish is he who, having slain the father, leaves the sons behind.”