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Published online by Cambridge University Press: 12 February 2016
A fundamental problem in jurisprudence—the justification of subjection to law, the legitimation of the demand to account for one's deeds—is antecedent to the science of law. In furnishing a solution to this problem philosophy shapes qualitatively the nature of the legal order of a society which it underlies. In what follows we shall focus our attention on two outstanding achievements of European civilization in antiquity—attempt to state Aristotle's solution of the problem and point to its counterparts in Roman jurisprudence.
It should be noted that Aristotle's views, including his theory of responsibility, underwent certain developments. We shall, however, discuss it in its mature shape in the Nicomachean Ethics. As for Roman law, from the Twelve Tables in the 5th century B.C. down to Justinian's Corpus Juris Civilis in the 6th century A.D., and thereafter, it was never a static body of law. Yet the Corpus is its best known and most widely applied embodiment. It has exerted influence on later European legal thought long after the Roman Empire ceased to exist and inspired many systems of law throughout the world. We shall, therefore, discuss Roman law as it is reflected in that compilation.
1 See Hamburger, M., Morals and Law—the Growth of Aristotle's Legal Theory (1951).Google Scholar
2 See M. Hamburger, ibid.; Zeller, , Greek Philosophy, sec. 52.Google Scholar
3 See Nicomachean Ethics (hereinafter referred to as N.E.) 1109b 35. Quotations are from Ross', W. D. translation, in The Basic Works of Aristotle, ed. McKeon, R..Google Scholar
4 Cf. Ross, W. D., Aristotle (5th ed., 1949), 187–8 n. (1).Google Scholar
5 N.E. 1106b 36.
6 See Demonsthenes, , Oration Against Aristocrates 76 (Eng. trans. Vince, J. W. (1936), 267)Google Scholar; Plato, , Laws, 873–4.Google Scholar Such practices are evidenced elsewhere; the goring ox of Ex. XXI, 28–29 is famous (see Yaron, , “The Goring Ox in Near Eastern Laws”, (1966) 1 Is.L.R. 396).Google Scholar For other examples see Frazer, , Pausanias ii 370 ff.Google Scholar A cow was executed after trial in France as late as 1740. Cf. also the “dcodand” in English law (abolished in 1846).
7 For Aristotle's criticism of the Socratic view, see N.E. 1113b 14–17.
8 Some distinction can be discerned in his Rhetoric, 1374a 18–25; see Barker, E., The Politics of Aristotle, (1946), 370 nn. 1, 2.Google Scholar
9 He tended to treat them as a complete whole. The Nicomacheam Ethics is an introduction to his Politics, and its first chapter is introductory to both, while its last chapter (ending with “let us make a beginning to our discussion”) is a transition to the Politics.
10 See Vinogradoff, P., Outlines of Historical Jurisprudence, (1922) II, chap. 3,Google Scholar
11 N.E. 1109b 33.
12 Taylor, , Aristotle (Dover, , revised ed.) 50.Google Scholar See also McKeon, R., “The Development and Significance of the Concept of Responsibility” (1957) Revue Internationale de Philosophie, (No. 39— La Responsabilité), 10.Google Scholar
13 De Interpretatione 17a 7; Metaphysics 1027b 10.
14 N.E. 1113b 18.
15 N.E. 1113b 22.
16 Cf. N.E. 1113b 18.
17 N.E. 1109b 30.
18 N.E. 1111a 24, and see 1135a 23 and Ross, , Aristotle (5th ed., 1949), 215Google Scholar.
19 Proairesis.
20 N.E. 1111b 7.
21 N.E. 1111b 5; and cf. N.E. 1135b 18, where Aristotle distinguishes between cases where the action is bad though the agent is not to be considered so, and cases where the agent also is bad.
22 N.E. 1139b 4.
23 N.E. 1113a 11.
24 De Anima, 433a 13, trans. J.S. Smith, in McKeon op. cit.
25 “Now every wicked man is ignorant of what he ought to do and what he ought to abstain from, and it is by reason of error of this kind that men become unjust and in general bad;…for it is not mistaken purpose that causes involuntary action (it leads rather to wickedness) nor ignorance of the universal (for them men are blamed), but ignorance of particulars”. N.E. 1110b 27–33.
26 N.E. 1105a 34.
27 N.E 1113b 12–23.
28 See N.E. Bk. V chap. 8. Aristotle probably makes this classification on the basis of the Attic law. See p. 49 infra for the distinctions in Attic law between civil and criminal actions. In this classification Aristotle refers rather to negative conduct, but it is evident that it applies mutatis mutandis to positive conduct as well.
29 N.E. 1110a 3; 1135a 27.
30 “E.g. if a tyrant were to order one to do something base, having one's parents and children in his power, and if one did the action they were to be saved, but otherwise would be put to death” N.E. 1110a 5.
31 Ibid. 12.
32 Ibid. 22.
33 Ibid. 25.
34 Ibid. 27.
35 N.E. 1110b 2. He who is prudent, the phronimos, would be able to tell.
36 N.E. 1149b 4.
37 E.g., the agent's ignorance of who he is, what he is doing, what or whom he is acting on, and sometimes the instrument he is using, the end of his action and how he is acting (gently or violently) ; the presumption is that such ignorance, especially the first, is madness. See N.E. 1111a 3, and also 1135b 13.
38 Aristotle distinguishes between cases where one acts wrongly in ignorance and does not repent (acting not-voluntarily) and where one so acts but repents (acting involuntarily), see N.E. 1110b 22. Ross, op.cit., p. 198 does not see any real difference in this distinction. He remarks that repentance can, at most, show that the action done is contrary to the agent's character. There is some point in Ross' remark, since Aristotle points out that acts are voluntary or involuntary as at the time of performance, not at any later date (see N.E. 1110a 14). Hamburger, op. cit., p. 25, draws attention to the pedagogical aspect in Aristotle's theory of punishment and explains that repentance weighs much in considering the punishment; the judge may impose a heavier sanction on the unrepenting than on the repenting. This does not seem to be a sound argument, since from the pedagogical point of view there is no sense in punishing the repenting culprit at all. Aristotle does not hold such a view.
39 N.E. 1110b 27.
40 N.E. 1135b 16; by way of example, one may point a spear towards another in the wrong belief that there is a button on its tip, or one gives another a draught to save him, which is unknowingly a poison. N.E. 1111a 13.
41 “One might want to touch a man, as people do in sparring, and really wound him” N.E. 1111a 14. In the Rhetoric, 1347b 7, Aristotle calls this sort of action an “error of judgment” (trans. W. Rhys Roberts, in McKeon op. cit.).
42 N.E. 1135b 18.
43 N.E. 1135b 27.
44 N.E. 1135b 25; 1136a 1.
45 On this see P. Vinogradoff, op. cit., II chap. 9.
46 Aristotle also points to such distinctions. Sec, for example, N.E. 1132a 4, 1138a 9.
47 It was mentioned by Plato, , Laws 866–868.Google Scholar
48 N.E. 1113b 30.
49 Which is carried on by personal example of teachers and parents, and by the state, the laws of which should, according to Aristotle, regulate every aspect of the life of the citizen.
50 N.E. 1113b 12–23.
51 Translated as “equity” by Roberts, in McKeon, op. cit.
52 Plato, , Statesman, 294, 296. Trans, by Jowett, B., The Dialogues of Plato.Google Scholar
53 Compare Rhetoric (Trans, by W. Rhys Roberts, op. cit.) 1375a 27: “if the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice ‥ we must argue 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 change.”
54 Rhetoric, 1374b 10.
55 See N.E. 1137b 25.
56 See N.E. 1137b 12–24, Hamburger op. cit., 89.
57 See Plato, Laws 736 E-D, 757 E-D.
58 The Heliastic court was considered as representing also the sovereignty of the. people. See Vinogradoff op. cit., 69.
59 N.E. 1137b 22.
60 See Hamburger op. cit., 94, who also compares this point in the N.E. with its treatment in Aristotle's Magna Moralia.
61 Cf. Politics, 1333a 10 “…for actions do not differ as honourable or dishonourable in themselves so much as in the end and intention of them” (Trans. W.D. Ross, op. cit.).
62 N.E. 1098a 17.
63 N.E. 1114a 7; 1105b 5.
64 Cf. Plato, , Protagoras, 325a.Google Scholar
65 Sanctions in this context have a wide meaning. Aristotle often mentions punishment and honours together, and also regards as a category in itself the award of certain privileges such as the right to serve in public offices, to get a share in property distributed among the citizens when a polis is established, money-prizes and other bounties, exemption of taxes and other obligations. These were customary in ancient Greece, and in the constitution of Athens several grades of such privileges are known.
66 N.E. 1179b 4–13.
67 N.E. 1180a 1–9.
68 N.E. 1180a 10.
69 N.E. 1284a 3–18.
70 N.E. 1180a 8, and also Plato, , Protagoras, 325a.Google Scholar
71 N.E. 1132a 4, and cf. N.E. 1130b 30.
72 N.E. 1138a 9.
73 Cf. Cowell, F. R., Cicero, and the Roman Republic, 174.Google Scholar
74 In 161 B.C., for instance, it ordered the expulsion from Rome of all the philosophers and rhetoricians who hailed from Greece after the conquest by Rome. Six years later Cato was anxious to see that the Senate deal without delay with a petition presented to it by an Athenian mission headed by three philosophers, when he learnt that they were captivating their audience in lectures.
75 Irrational behaviour is not free but natural and therefore not willed.
76 See e.g. Epictetus, , Discourses Bk. IV, chap. XI (Trans. Long, G., p. 409).Google Scholar
77 “Thus it was held that a man who sued another for cutting his vines, and in his action called them vines, irreparably lost his right because he ought to have called them trees, as the enactment of the Twelve Tables, which confer the action concerning the cutting of vines, speaks generally of trees and not particularly of vines”. Gaius', Institutes, IV, 11 (Trans. Post, E., 4th ed.)Google Scholar
78 De Officiis, 1.10.
79 Digest, 4.3.34.
80 Jolowicz, H. F., Historical Introduction to the Study of Roman Law (1932), 421.Google Scholar
81 Cf. Digest 17.2.31 with 17.2.44 and 19.5.13; and see also Jolowicz, op. cit., 528.
82 See Jolowicz, H. F., Roman Foundations of Modern Law (1957), 143, 151.Google Scholar
83 Digest 50.17.23. The terms casus, vis maior, casus maior are interchangeable.
84 Digest 44.1.4.
85 Digest 9.2.29.3.
86 Digest 4.2.1.
87 Digest 4.2.5.
88 Digest 4.2.6.
89 Digest 4.2.9.
90 Institutes, 4.13.1.
91 Codex, 1.18.7.
92 These, like the feeble-minded (furiosus) are considered not only as devoid of knowledge but also as devoid of will (Digest, 50.17.40).
93 In this case they are considered capax doli. See Institutes, 4.1.18, Digest, 9.2.5.2.
94 Digest, 4.4.1.
95 Digest, 9.2.31.
96 Digest, 19.2.25.7.
97 Digest, 13.6.5.2.
98 See, for example, Digest, 13.6.5.2: “…in the case of deposit [the defendant will be answerable] for wilful wrong; because there being no question of advantage to accrue to the person with whom the deposit is made, it is quite right that wilful wrong only should be answered for; except, that is, in cases where there is the additional fact of a payment to be made (to the defendant),—as then negligence comes in as well, as indeed has been enacted”.
99 According to Digest 48.5.39.8, where a husband kills an adulterous wife in a fit of anger, he may be excused the death penalty; if he is of a low class he is sold to servitude, if he is of higher class he is exiled to one of the islands overseas.
100 Digest, 4. 3. 1. 2.
101 Digest, 48. 8. 14.
102 Bk. I, chap. X (Trans. W. Miller, 1937, p. 32). In Bk. III, chap. XXV Cicero repeats the same with legalistic examples, one of which is taken from Plato's Republic, 331, as an example of when it will not be right to adhere blindly to the statute, but necessary to consider the circumstances which justify deviation from it.
103 Digest, 16. 3. 31.
104 Digest, 1. 3. 10, 11, 12. See also Celsus, Digest, 1. 3. 4, 5.
105 Rhetorics, 1374b 10.
106 Digest, 1. 3. 17, 18.
107 See Rhetorics, 1375a 31, Codex, 3. 1. 8, Digest, 50, 17; 90. 144.
108 Ratio naturalis, honestum, bona fides, bonum.
109 See Cuq, E., Manuel des institutions juridiques des Romains (1928), 10 ff.Google Scholar; Guibal, M. P., De l'influence de la philosophie sur le droit romain et la jurisprudence de l'époque classique (1937), 162 ff.Google Scholar; Allen, C. K., Law in the Making (1958), 375 ff.Google Scholar
110 Jolowicz, H. F., Roman Foundations of Modern Low (1957), 54.Google Scholar
111 Ibid., 56.
112 Cf. K.C. Allen, op. cit., 373–74.
113 Digest, l. 1. 10.
114 Cicero, De legibus, III.
115 Digest, 1. 1. 1.
