A blog for the thoughts of students in Baylor Law School's Oral Advocacy Class.
Friday, February 19, 2010
Week 3
This week we discuss logos, as described in Book 1, chapters 10-15 of Aristotle's On Rhetoric.
33 comments:
John Brennan
said...
I liked what Aristotle said on page 85 that it doesn’t matter what color a person is; however, the age of a person is always relevant. It is interesting that so long ago he wrote that but in America that idea is something that wasn’t embraced for a long time. The criminal justice system in America originally was too concerned with race and far less concerned with the age. In chapter 11 Aristotle says that new things are painful until they become habit and then they are pleasurable. I think Aristotle’s idea is negated by PC. The reading assignments became manageable; however, they were never any source of pleasure from repetition. I agree with Aristotle that the general reason for doing something that is wrong is because the reward outweighs the risk. I also think it is true that sometimes a victim is chosen for the simple fact that the person isn’t expected to respond to being wronged by seeking revenge. I was surprised to see how Aristotle considers trial to be a way of balancing the books even though many harms can never be corrected. It is an idea that Professor Wren constantly pointed to.
I found Aristotle's distinction between common law and written law very interesting. I had not realized that the idea of common law had been articulated so long ago. His discussion of why people do wrong had echos of Professor Sehr's lectures on Mens Rea. He makes a distinction between willing an unwilling actions, between accidents and intentionally acting. He may not have used the words, but he did show why a negligent act is not as bad as one done knowingly or intentionally.
I actually agree with Aristotle that things which are repeated enough become habit and eventually pleasurable. PC reading may never be pleasurable, but other habits are. This can be seen in anyone who makes a habit of running or other physical exercise – it is painful at first, but once it becomes a habit, it is pleasurable, and going a long time without running becomes painful.
The discussion of possible arguments for and against witnesses, contracts, and the other forms of evidence was interesting. I liked the skeletal nature of how he presented it – allowing the reader to fill in the details from their own case.
I found the final section of 1.15 the most interesting of this assignment. I wonder how much significance is placed on the oath that witnesses take these days. Even in Aristotle's time, he indicates that the oath may be more meaningful to religious people than irreligious. However, it is interesting to see how Aristotle deals with the different situations that may develop given that an oath was optional between opponents in a case. Not all of these situations are applicable to our modern system since the oath witnesses take is not optional. This may further weaken the effect of the oath. A witness can't get on the stand and testify if he/she doesn't take the oath. Therefore, it is speech that is forced and may have little to no effect on the jurors. I'm in Civil Liberties right now and this reminds me of the Jehovah's Witnesses who argued that a public school policy requiring all students to say the pledge of allegiance was unconstitutional. In that opinion the court described compulsory speech as ineffective.
The oath witnesses take may mean something to some people, but it certainly doesn't mean the same thing to everyone. Jurors must determine truth. In a case where each party says completely different things the jurors determine who is telling the truth. When both parties had to take the same oath, the oath itself loses its significance. The jurors must determine which one is lying based on other factors and no party is any more credible based on the oath that he/she took.
Book 1 Chapter 13 really stuck out to me in this assignment. Probably due to the fact that I found it the least confusing of the entire section. Interestingly, Aristotle deals with how people classify wrong doings and acts. He delves into how all actions are either just or unjust in the eyes of law and ultimately this is based on virtue and concerns the individual at times and then the community at other times. One of the more poignant passages of this chapter discusses how people admit to an action but wont admit to the specific terms of the crime with which the actions deal. Aristotle uses the example of how people will gladly confess to having 'taken' something, but will not confess to having 'stolen' something. This passage intrigued me, because, in a way, as lawyers, everything we do is about semantics and perspective. I guess this goes back to just how much of the law is based on the letter of the law and how much is truly left to the advocacy of the attorneys involved. In my mind, coming from a strong family law background, I believe that most points in law can be argued both ways. However, there are those that believe that it cannot. There are those that believe that the law is the law and should be applied in a certain way. I almost tend to agree with Aristotle in that he suggests that we look to the person to determine how to classify a legal occurrence, not the law. This gives the legal profession a much more human side, that I think it should have. This conflicts with the state criminal sentencing system to a certain degree in that to determine a person's sentence, you look to the action and then determine from penal codes how the sentence is to be described and what the elements of that crime is. Honestly, I contend that we look to the nature of the person, first, to determine their reasoning and then determine how to sentence that person. I have just always felt that the law should have a more human side, however, it is hard to put that into words.
This section was once again fairly confusing, but I liked how he broke everything down. The reasons that people do things, the 7 causes of human action, was suprising because no matter how you look at something, those are the only real reasons anyone would do anything. I mean the groupings are very very accurate, if not over simplified. It also stuck out to me how pleasure drives so much. Aristotle says that anger can bring pleasure beacuse of the thought of vengence, and I think that says quite a bit about how to manipulate emotions with a jury. You can, with the right story and advocacy, make the jury feel good about a decision. This applies where every emotion is involved, and I think that the way to sway a jury is to find the outcome that you want and figure out a way to make the jury get pleasure out of coming to that decision. This is really relevant where the law gives a lot of wiggle room, and is especially true in cases that aren't exactly cut and dry. This kind of ties into what Brennan said, how a trial is a balancing of the books. I'm suprised at how that is still a motivating factor today, though it makes a lot of sense. I think a community or a soceity as a whole can have emotions, and balacing the books and doing something solely for the "just" reasons are just as healthy for a community to do as for an individual to do.
While I was thinking about what to write for my post, one of my favorite trial movies came on TV—Philadelphia. It’s a great movie with Tom Hanks and Denzel Washington…spoiler alert in this post for those who haven’t seen it yet. The basic premise is that Tom Hanks is suing his law firm for firing him based on him having AIDS and Denzel Washington is Hanks’ attorney. This movie takes place at a time when AIDS attached many negative stereotypes and was considered a death sentence. When Denzel Washington gave his opening statement though he said, “Despite what you think of the morality of firing Andrew Beckett [Tom Hanks], the fact is that when they fired him because he had AIDS, they broke the law.” That goes to the heart of what Aristotle was talking about with logos in the judicial arena. At that point, Washington’s character tried to have the jury remove their emotion feeling surrounding the case and instead use logic in following the law.
I think that Aristotle states two important goals the speaker in a judicial setting must achieve: establish the facts/what was done and establish the course of action that must be taken/why the law must be followed. I think prosecutors and plaintiff attorneys need to be especially aware of those two goals because they are asking the jury to do something to make the status quo different and thus have to prove their position to the jury. In Philadelphia, it wasn’t enough to just show that the firm fired Tom Hanks’ character because he had AIDS, Washington had to also persuade the jury why that discrimination had to be punished in terms of damages. The prosecutor does this too, and I think he has to use more logos than any other attorney because he has to prove his case using the logic of evidence and not through the emotion of the situation. After it is proven that a defendant did the crime, the prosecutor must then show why that defendant must have a certain sentence. I think it is interesting that today’s attorneys are still being taught the lessons that Aristotle spoke of in ancient Greece.
The very first part of Chapter 10 talked about three things that should be included in an argument: why people do wrongful acts; what their mental state is when they’re doing the act; and what kind of person the wrongdoer and the ‘victim’ is. I feel like this is what is necessary for good story. In PC, Professor Powell always encouraged us to tell good stories in opening/closing and through witnesses. He also encouraged us to develop the plaintiff and the defendant’s characters- he said that if the jury doesn’t like your client, then how can you expect them to decide in their favor?
I found myself going through the majority of the reading and questioning all of Aristotle’s generalities about the way the world works and why people do what they do. For the most part, I think he was right. Aristotle talked a lot about people acting mainly for self gain- for pleasure or desire for something. I wonder what Aristotle would have thought about selfless acts. He seemed to suggest that if you do something good for someone else it was because your character was good and you were acting in conformity with it out of habit. But what about people who do not have good character but still do something selfless? Has that person changed their character completely by this one act of selflessness? Would he argue that they would be acting out of ‘habit’ if this was the first selfless and good act they had ever done?
Aristotle talked a lot about the difference between two kinds of laws: laws that are written by man for particular communities and laws which are universal and a part of our innate sense of right and wrong. I liked how he pointed out that sometimes man made laws could even violate our innate sense of right and wrong- and that if that happens, we should attempt to change the law. I also like how he advised the use of the universal law for the benefit of your argument. I think this is like using a moral argument. However, people can have many different ideas of what the universal law is- for instance, some people think it’s never ok to steal, while others think if you’re stealing to feed a hungry child then it’s acceptable. If we were to take Aristotle’s advice and argue the moral or universal law, I would think we should do so as generally and carefully as possible so as not to offend a juror.
Finally, I’m glad Aristotle disapproved of the use of torture as a measure of reliability. Obviously the wimpy people would say anything you wanted, truth or lie, to avoid physical pain.
A father of a newborn knows no pleasure. Aristotle spoke of having pleasure. Aristotle never had kids.
"Habits are pleasurable;" "Duties and studies and exertions are painful; for these too are necesasrily compulsions unless they become habitual; then habit make them pleasurable." FALSE
What started out as a duty to get up every 2-3 hours to attend to the newborn, if we even got that opportunity, turned into a nightly habit that continues into week eight of this little dude's life. There's no pleasure here, Aristotle.
"And to be revenged is pleasurable; for if not attaining something is grievous, getting it is pleasurable, and angry people who do not get revenge are exceedingly pained, but while hoping for it, they rejoice." FALSE
I'll admit it. I've thought about revenge. It makes me kinda happy to think I could wake him up while he's trying to sleep and hope, on some level, that he understands how painful it is. However, I think a step ahead and realize that if I wake him up, he'll just start to cry. Then I lose that brief and valuable sliver of time without noise. So, revenge wouldn't be pleasurable. It would suck.
With regard to torture, it can work. I mean, just watch "24." Torture always works for Jack Bauer. I think Aristotle would change his position after watching Season 1.
I thought I might also look at what Aristotle meant by “pleasure” this week. I think that, on a very general and rather obvious level, Aristotle is saying that arguments should appeal to what an audience finds pleasurable. However, it is obvious when he states on page 88 that “Duties and studies and exertions are painful…[but]…habit makes them pleasurable,” and memories are also pleasurable, even if about painful subjects, provided “their consequences are honorable and good,” that “pleasure” indicates something very different from enjoyment.
It appears to me that Aristotle is saying that an “appeal to pleasure” is, in modern terms, an appeal to the comfortable and familiar. Looking at the many lists and iterations Aristotle provides of things that are pleasurable, the term pleasure seems to embrace not merely habitual, and therefore comfortable occurrences, but also what may be termed metaphysical habits—ethics, morals, perhaps even the stereotypes that the audience frequently utilizes. This is why I think the form of the sermon played such an important role in several closing arguments that I have seen—by utilizing the rhetorical devices and forms of a sermon an attorney can incline jurors to trust what he saying, perceiving the similarity between what the attorney is saying and what many jurors are used to trusting and hearing on a habitual and weekly basis.
I think the corollary to the “appeal to pleasure” is equally important—and that is appealing to a sense of deviancy. If an attorney can convince the jury that what a defendant has done deviates from the jurors’ sense of normal behavior, then that significantly impacts the jurors’ ability to emphasize or sympathize with that defendant. After all, it is hard to have empathy for someone who has done something you would never have done, or never even have conceived of doing.
I found this reading a bit easier to understand than the previous. I enjoyed the last chapter the most. It truly baffles me that the concepts discussed so long ago are still applicable today. For example, the discussion on torture could not be more applicable today. It seems like the media, television, and movies put a specific emphasis on torture and the potential gains it can offer. We have all seen Jack Bauer be tortured/torture others to save the world one too many times. But the use of it is flawed for precisely what Aristotle explains. Those who are tortured are more likely to simply tell lies to get the torture to end. I feel like it is easy to lose sight of this but it is important to remember. I also found the emphasis on oaths to be interesting. The importance of an oath seems to be fading to me. I think the "Do you swear to tell the whole truth, nothing but the truth..." has lost its value because it has become so prevalent, or become habit. Taking an oath is a powerful thing, and it should be. I think the value in it should be reinforced. The fact a young child can say the phrases involved based on what they see on TV has taken away from its value. It is difficult to sit back and understand why you say something or what it means when you learn at a young age, it becomes a habit. It is like religion, you are taught it when young but unless you take the time and are taught to reflect on what you’ve learned, there is no basis or foundation for it. I feel like this needs to be reinforced.
I would first echo Mr. Lawrence’s comments regarding pleasure. Specifically, his discussion that often times, things that aren’t pleasurable to begin with, become more so after they have become a habitual activity. The case then becomes when an individual discontinues those habits, it “pains” them to do so. Individuals who engage in regular exercise or are accustomed to waking early have a difficult time when they get out of those habits or those routines. I suppose that speaks a lot about human nature in that we generally find routines, order and habits essential to our daily functioning and happiness. I also thought the discussion on how we differentiate between greater and lesser crimes particularly interesting. The more brutal the greater; the more premeditated the greater, and so on and so forth. This is such a relevant discussion, even in modern society, because it focuses on the sensitivity we have to the particular facts of a case. Specifically how the facts, both good and bad, can determine how a case will likely turn out. That being said, there is certainly room for a persuasive presentation of the facts, but I think this particular discussion highlights the importance of paying close attention to the facts.
Great litigation in the courtroom isn’t hard to pull from Aristotle’s discussion of natural law and humanity’s response. He considers the number of people affected a key factor in pointing to the culpability of a criminal. Practically, pointing at the defendant and holding up the drugs she was going to sell offers less culpability than tying her to the effects of her crime. Tie her crime to the larger effects of drugs like addiction, broken families, the networks supplying drugs by oppression and exploitation, the resulting violence in our country and others and the jury will blame the defendant as the catalyst for all those effected, instead of just her own criminal actions. Aristotle exposes that when there are multiple bad acts, we place blame on the person with the worst motives. In practice, as Gerber defends a product liability suit over its child safety seat, their defense is not limited to their own innocence (“We would never trade safety for profit”). Instead, point at the father more concerned with getting to movie on time than making sure his daughter’s car seat was buckled up the way it’s supposed to be. At the very least, the jury’s comparing motives, which means they’re comparing fault, and at best it allows the jury to put the worse motive on the parent. Taking Aristotle’s valid observations on the way humanity views particular conflicts seems like a great way to pick the best theme for your case. Unfortunately, it also reveals the ugliest side of the law: manipulating people into the resolution you want. It allows lawyers to take their knowledge of human nature and present their position in a way that uses human nature in their favor. And what scares me most is that those situations make it easier to lose sight of the aspirational aspects of the law (justice, truth, mercy, peace) and instead becomes an outcome driven competition between attorneys.
I appreciated what Aristotle had to say about the element of pleasure that exists in anger, grief, and revenge. To take these seemingly negative emotions and point out the pleasantness that exists amidst them is important in life, but also in the court room. No one wants to be thought of as wrathful and vengeful. The key is to focus a jury on the pleasure that exists in anger and revenge. To show that while it may not be pleasant that the defendant’s conduct angers and outrages the jury, the verdict that results from that anger can be pleasant because it upholds a sense of justice.
I also enjoyed chapter 13 where Aristotle talks about defining just and unjust acts based on the two different kinds of law. By discussing justice in accordance to acts and laws he goes away from what he was taught a little bit (I think I remember Socrates and Plato speaking of justice as a lifestyle. A person is either just or unjust and justice is not based on individual acts), but he also raises interesting point about justice that is binding on all men universally even if they have no covenant with one another. As Mr. Lawrence pointed out, Aristotle articulates common law principles so early on. I especially like the part of 1374 where he talks about principles of equity. He says that equity makes up for a community’s written code of law. We look at principles of equity when determine whether an act is a misfortune of errors in judgment or criminal.
Perhaps Aristotle speaks about habit becoming pleasurable because he understands that we are creatures of habit and appreciate the familiar, or perhaps he just knew his book would be hard for us to read and he wanted to trick us into thinking that if we read his words enough it would one day be pleasing.
After reading Chapters 10 - 15, I feel so much more comfortable reading Aristotle in general. I feel like these chapters broke everything down categorically and that is definitely the way that I learn and think. Especially with logos, I think that Aristotle had the right idea with breaking everything apart so when you put them all together, they can be logically explained.
I thought it was interesting in Chapter 10 that Aristotle categorized the reasons that people act into seven causes: (1) change, (2) nature, (3) compulsion, (4) habit, (5) reason, (6) anger, and (7) longing. He states that there is no need to distinguish actions further, because there is always one of these causes at the heart of the action. In being an attorney, I believe of the most important skills to learn is how to figure out people. To be successful in solving any kind of dispute, whether civil or criminal, it is essential to understand the underlying interests of the parties involved. The first step in this is determining the reason why someone has acted in a certain way, and categorizing the behavior by one of the seven causes could benefit the process of determining a party's underlying interest.
Additionally, I thought it was interesting in Chapter 11 when Aristotle discussed that all pleasurable things are either present in perception, past in remembering, or future in hoping. Before I read this chapter, I always thought of pleasure as only present. In regards to the past, Aristotle stated that "memories are thus pleasurable, not only about things that were pleasant when they were going on but even about some unpleasant things if their consequences are honorable and good." This struck home as true, because it is a common thing for people to take pleasure in past actions. For example, after running a marathon, even if the person was in pain all throughout he will most likely remember the experience with pleasure. This chapter gave me a whole new perspective on how to think of pleasure in regards to people's actions.
In Chapter 12, I liked Aristotle's explanation regarding the idea of "It will never happen to me." In regards to why people do wrong things, he stated that people think they will not be detected, or if detected they will not be punished, or if punished the penalty will be less than the profit to themselves or their loved ones. I think that everyone, to some extent, has this mentality about wrongdoing. This mentality also makes it easier to commit or go through with the wrongdoing since the consequences seem slight. Deterrence in both criminal and civil laws seems to speak to this common mentality about wrongdoing. The more that people are punished and made examples for committing wrongdoing, the more that others will realize that getting caught and punished for their wrongdoing is more likely.
Lastly in Chapter 15, I appreciated Aristotle's shout out to the thin-skinned people. Although he pointed out that torture is a kind of testimony that seem to have credibility involved because it is necessary to speak, he also noted the practical problem that thin-skinned people will out someone just so they can avoid torture.
Aristotle’s deconstruction on why wrongdoers commit wrongs struck a tone with me. After he laundry list of reasons, I think it became clear that motive is not an element for crimes, because actually all crimes are committed to achieve or receive some benefit that outweighs the punishment or chance of punishment. Every wrongful act has an underlying motive.
I agree with Aristotle that new things can be painful at first, but are pleasurable when they become habitual. This reminds me of my parents always telling me to put my toys and belongings back from where I found them after I used them. It was such a chore to put the items back in their proper place, but now I enjoy taking time to do this. However, this is not true for all things. Researching legislative history is, at first, painful, then becomes monotonous, and finally, horrifically boring. Only Siths deal in absolute, Aristotle.
His section on unpleasant experiences becoming pleasurable memories is spot on. Any one visiting old friends can vouch for this. I cannot count the number of times my friends transformed a dumb, embarrassing moment to great memory.
Aristotle’s thoughts on torture are interesting because today’s political leaders still discuss the benefits and downfalls of compelling information from people. How have we not gotten to the bottom of this after several millennia?
I did not really enjoy this reading assignment as much, I think partly because Aristotle purports to deal in absolutes, but I think all of the ideas he discusses in these sections can't be reduced down more than mere generalities...
Am I reading this wrong, or is Aristotle saying there cannot be wrongdoing without someone harming willingly in contravention of the law? He at least says that there is only injustice when it is voluntary. If that is what he is saying, I don't necessarily agree. I think that there can be wrongdoing/injustice even if the person unintentionally acted or didn't act in a certain way. There are whole areas of law based upon this idea as well (negligence and products liability are common examples).
Also, I am a little confused as to Aristotle's idea of the scope of what he calls common law. He says it is the law of nature, do you think he would include the idea of religious law or moral law within that his definition? I agree with Luke with regard to his comments about common law, I had no idea that the idea went so far back. I also thought Aristotle's discussion of how fairness was a justice that goes beyond the written law was interesting. I think he essentially said that common law was the natural law and that it could trump written law and that the judges were the bringers of "true justice."
I thought it was very interesting that Aristotle said compulsion is not natural, people are compelled to work, work is painful unless is becomes a habit. I wonder how broad he is speaking when he says work? I would think that the desire to produce something with your own hands could make work pleasurable.
I like it how Aristotle switched into poet mode in the middle when he starts talking about love: "The starting point of all love is the same to all; [it occurs] when [people] not only delight in the beloved's presence but delight in remembering one absent…"
I thought Aristotle may have missed the mark a little when he said that there is pleasure in narrow escapes from danger for the reason that it brings admiration. I think narrowly escaping from danger is pleasurable because you escaped from danger. I don't think it has anything to do with admiration. Maybe once you write a novel about it…
I thought Aristotle was spot on when he was identifying groups of people that do wrongdoing and he said: "but those most think they can do wrong without penalty who are skilled at speaking and disposed to action and experienced in many disputes and if they have many friends and if they are rich."
Page 100 starts to sound/read like a LAPP treatise on statutory construction...
The last thing I am going to mention is something that I thought was hilarious when I first read it. Aristotle is listing off essentially the types of evidence that can be heard in court, laws, witnesses, contracts, torture, … I like how he just seemed to try to slip torture in there, no big deal-style. Of course, he goes into it later and elaborates on what he was referring to, but when I first read it I laughed. I think Aristotle's opinion that nothing is credible when there is torture is great, and I think this idea is of great importance in this day and age, especially with all the back and forth with regard to US prison camps like Guantanamo and the means that have been employed to obtain information from prisoners.
For the most part, I think that Aristotle has a good understanding of human psychology and why we do the things that we do. But, I think that Aristotle takes too strong a stance on some of these concepts and doesn’t take into consideration different personalities. For example, as Ms. Gee has already pointed out, Aristotle seems to ignore the possibility of a selfless motivation behind an action.
I also don’t understand why Aristotle believes that habits are pleasurable. When you do something out of habit, you are almost doing it without thinking about what you are doing. I find no pleasure in doing something that little to no thought goes into. Furthermore, when it is a habit that was forced upon me (such as the PC reading which has been mentioned), no matter how long I continue to do that reading, I will never find it pleasurable. I think it will still remain painful. However, I do agree with his discussion that there can be pleasure when remembering things that were painful. When I look back on some of the more painful seasons in my life, I tend to not always remember the pain but to find pleasure in the fact that I overcame the situation in the midst of the pain.
As a final note, I think it is interesting that Aristotle’s arguments regarding contracts in Chapter 15 are arguments that are still utilized today. I sat in on a trial regarding a contract dispute recently and both sides argued many of the same arguments that Aristotle states.
In Chapter 15, Aristotle makes a suggestion when arguing before a law court. He says that “if the written law is contrary to the facts, one must use common law and arguments based on fairness as being more just.” Aristotle then cites Sophocles’ Antigone as authority for this proposition. Now, I thought at first that the Athenian ability to argue to the court in contravention of the law based on “common law” or natural principles of fairness was indicative of a proto-legal system, one in which sophistry and appeal to the masses could overcome the rule of law. Then I thought about it some more and realized that in the American legal system this type of appeal can still be made. In a criminal trial, the jury can still acquit for any reason it wants to. The jurors don’t even have to specify a reason and their decision is not appealable because of double jeopardy purposes. I think the reason for this power of the jury relates back to the Athenian concept of the jury. The Athenian jury was huge, sometimes made up of hundreds of citizens. It could be said then that people in Athens were punished according to the will of the public. Just as in ancient Athens, the American system gives the jury an unlimited acquittal power because of the principle that government can punish only with the consent of the people, the public. Therefore, Aristotle’s advice can still be followed today in an American courtroom, although a lawyer probably cannot exhort the jury directly to exercise their unlimited acquittal power. Thus Aristotle’s advice must be tempered and approached with more nuance today, but can still be a power arrow in the rhetorical quiver.
I think that the first two chapters of this reading could have been significantly shorter. By that I mean, I think Aristotle could have summed up his entire premise by saying, people will always act in a manner that is self-interested, and if that motive is not immediately apparent, step back and examine the broader context and it will be easier to spot. The seven categories he set up all seem to say the same thing, especially when he follows this with a chapter about pleasures. He then spends chapter twelve explaining just how that self-interest manifests itself by indicating why wrongdoers do wrong. It seems that these three chapters could be summed up as; people will act in a self-interested manner. People will act wrongfully when their self-interest dictates they should (i.e. when the potential benefit outweighs the potential consequences). I like the breakdown Aristotle points to in chapter 13 when discussing just and unjust action. I do not, however, necessarily agree with his discussion about “fairness”, at least not as far as it might find application in the criminal courts. I think that the goal of the criminal justice system is to punish wrong action. Once that wrong action has been proven, I think that the blind scales of justice should take over, I think that the personal history of an individual can be taken into account, but I think it is far from the most important thing in determining punishment. I did read the last two chapters of the assignment but I’ll stop here for fear of getting too longwinded.
Like Hunter, Chapter 13 was the one that stuck me as most interesting. I think, though, that my views may differ from his. Aristotle discusses how there's basically two sides to every coin - "taking" instead of "stealing" or "striking the first blow" instead of "violent assault." The way I read it, Aristotle seems to say that the way the accused tries to explain his actions is controlling on whether he was wicked/unjust or not unjust. That seems terribly self-serving, however. Anyone can, and will, make excuses for their poor choices. However, merely giving a valid explanation of a situation does not make it true. There are many situations where the wickedness or unjustness of an action is irrelevant - merely breaking the law is bad enough, because there are other issues at hand.
Take, for example, a case of a person who gets a speeding ticket. He pleads with the officer that he just didn't realize he was speeding, it was a temporary lapse of judgment. Was he unjust or wicked for having a momentary failing to pay attention for a moment? Certainly not. But, the public interest of protecting other motorists is more important than his moral justness or unjustness. So, I think that Aristotle's view is either somewhat too simplistic in its analysis, or it should merely be only attributed to certain punishable acts. Of course, there were no cars back then so he couldn't have properly rebutted my example anyway...
I think Aristotle lacks imagination when it comes to people’s motivations for wrong-doings. The entire book ten seems a little naïve and childish, ignoring a broad range of human emotions and motivations. In my experience, many wrongful acts can be attributed to some combination of: love, stupidity, and subconscious compulsions. I know Aristotle pays stupidity lip service in chapter 10 and love is mentioned in 11 but neither is given the credit it deserves. Additionally, irrational desires and how people deal with them could have been a topic of a book on of its own. Generally, I think the first two chapters gave men too much credit for control over their own actions. I know that wrong doing requires “voluntary” acts but I don’t necessarily agree with Aristotle’s attitude as to what is voluntary.
Chapter 12 dealing with victims and circumstances seems to me truer. Most of the first of the chapter seems to view victims and their victimizers as a mixture of character and chance—which is closer to my world view. While this chapter deals with people on a more base level, I still think too much credit is given to people’s thoughts regarding what they do.
I really liked chapter 13’s discussion of natural law and the differentiation between actions and the moral impetus behind them. The misfortune/error/criminal act breakdown was great. I really got into Aristotle’s discussion up through chapter 14. Generally, the break down in both of these chapters was good and it was nice to see a little more abstract philosophy separated from Aristotle’s earlier views.
First I would like to respond to what has been said about PC. I agree that the reading of cases never became pleasurable, but some parts of PC did become comforting through repetition. I know many classmates who enjoyed the "Good Morning" that welcomed us to the day. I myself eventually felt a sense of comfort in having my spot in the classroom, a predictable routine for studying, and knowing what to expect. The pleasure from reading cases was in knowing that you were prepared for class and had learned something you would have to use at a later date. You knew that you had accomplished something that day. The pleasure that Aristotle refers to is not simply pure joy, but he divides everything into either pain or pleasure. After reading this chapter on pleasure I found myself realizing how many little things fit his definition: putting on your jacket because the air conditioner is cold, finishing a blog post, using wikipedia to figure out something you were curious about, watching someone bang a dent into the truck that has caused many dents in your own car, the parking spot in front of your place being empty, the sound of silence when you arrive home, and someone really listening when you talk. You can tell that this must have been compiled over some period of time because he attempts to list every possible reason why people do things. He also explains how all other reasons really fit into these 7 categories. I think what he comes up with is very interesting considering the context. He is basically making this analysis relying on his own experiences and the teachings of other Greek scholars. He did not have the benefit of hundreds of years of studies on psychology or the exposure to the thoughts and feeling of people around the globe. I understand why it is so important to understand motivations and be able to explain them when arguing a case. To a jury, understanding why something was done is like the missing piece of the puzzle. The only way to know for sure is to read people's minds. If no one explains to the jury why the defendant did what he or she is being accused of, then they probably will not believe it was done. Aristotle's legal arguments are still used in courtrooms today. Aristotle suggests that if the law doesn't help then just argue for what is fair and just and if the law helps that argue that it is the jury's job to follow it. He also seems to comment on the importance of credible evidence, whether it be testimony or a written contract. Aristotle makes it clear that there is always a way to argue both sides of the coin.
I focused on Chapter 14’s discussion of degrees of wrongdoing. I am especially fascinated in light of a recent internal debate I’ve engaged myself in (it’s probably as crazy as it sounds) – which is the worse crime / transgression / sin: murder or sexual abuse of a child. I am strongly inclined to consider the later as the heavier sin; but this is due in part (not sure how large) to some visceral reaction for which I have no explanation. So I have engaged in this debate in order to articulate a sound reasoning that can support such a position. Perhaps Ari and his koinon can offer some guidance in this. His first point is his most intriguing; so of course I shall save it for last. Judging the gravity of a crime based on the harm done is a cornerstone of our justice system, which weighs murder greater than sexual abuse of a child (although, again, I feel this because of mistaken viewpoints of the two). Where there is no equal punishment – our laws allow us to take the life of one who has taken the lives of others; although we cannot sexually assault someone in return for their acts. Yes, there is something to be said for what happens in Oz; but this is not a technical punishment handed down by our courts. Where there is no healing the wrong, for it is difficult, even impossible, to undo – what a minefield this one is. Of course there is absolutely no bringing someone back from the dead. And there is some possibility of surviving, meant in the best of terms, a sexual assault as a child; but I’ll be damned if statistics don’t show that every single person molested as a child doesn’t suffer some extreme, long-term harm. Where the victim who is wronged has, as a result, inflicted some great punishment on himself – this seems highly enlightened, but also highly dangerous in a practical criminal system such as ours. However, in light of this argument, the victim of murder is dead and can inflict no punishment of any kind on him or her self. The victim of a sexual assault as a child can inflict all manner of psychological and physical harm on one’s self as a direct result of the damage done by this act. Worse yet, they can inflict the same harm on another later in life, and by carrying this argument to its outer reaches, a direct causality vs. proximity argument can be made that results in punishment based on later resulting harm. Lastly, for my words grow weak as the hour grows late, to Ari’s first point – where the injustice inheres in the potentiality. Prison is full of murders who, although definitely disturbed in some manner, do not poses the pure psychological break needed to sexually assault a child. And yet, isn’t a person who sexually assaults a child guilty of murder – murder of that child’s innocence; that child’s chance at normal; that child’s chance at relationships; that child’s chance at a fulfilling sex life; possibly even that child’s chance at having children of their own due to … well … the unspeakable. A cheap turn-of-the-phrase? Perhaps. But it is what fuels my holy honest and fierce wrath towards these people, if only in the biological sense of the word. Which wrong is the graver, the more brutal, the more magnanimous? Which wrong is more … wrong?
PS – Mere brain fodder having very little to do with the reading: although not obvious from the above post, I do consider crime / transgression / sin to be different entities, and I have strongly considered that two wrongs may share varying weights depending on the category of discussion – such that Wrong 1 may be a greater sin that Wrong 2, but a lesser crime.
Geez Aristotle, way to be a downer this week. I admit there is comfort in the routine and an ease of the known, but I hope not everything I do is driven by routine, competition, self-serving motives, or an effort to get away with some wrong. I agree with Cassie and Kim--he completely disregards any virtuous qualities people might have and trades them for an appreciation of competition, routine and those things similar to one’s self
The guy is talking from both sides of his mouth. We read four chapters about how we spend our lives bolstering ourselves, hiding our transgressions, and embracing the routine. But then, in Chapter 15, he says “it is not possible to divert justice by deceit or compulsion (for justice is based on nature).” Ha! Got you Artistotle! So he admits that our system is based on justice and that justice is based on nature, and not driven by deceit or compulsion. Well, good, now I feel like maybe humans have some redeeming qualities.
I did really like his assessment of how we grieve: “…a certain pleasure is felt in mourning and lamentation; for the grief applies to what is not there, but pleasure to remembering and in a way, seeing him and what he used to do and what he was like…sweet longing of tears.” I’m not sure how this ties into his other themes, but it’s a great testament to the sweet nature of the human spirit and our appreciation for others.
The very brief discussion of equity in 1.13 interested me. In most law school courses, equity is glossed over at best and ignored at worst, so my understanding of the topic is limited. From what I understand, equity involves a lot of factors analyses or some sort of magical power that the court uses to address situations where the rigid application of the law provides an unsatisfying result. But I had never thought about some of the more fundamental reasons equity is used – in situations where an individual has had some lapse in judgment, or misfortune, or there is some issue of human frailty at play.
While Aristotle portrays equity as the mechanism that accounts for the difference between a bad act and a foolish but forgivable motive, he also says that equity accounts for human weakness, which is a very broad statement. I wonder if this is a line in the sand that is less straightforward than it appears. How does equity play into a situation where there was a bad motive and a bad act? What if the consequences of the bad act are not proportional to the ‘bad morals’ that caused them? What role does equity play in a situation like that? As Aristotle stated earlier in the chapter, a wrongdoer rarely accepts the label for the act committed (the wrongdoer took something but is not ‘stole’ it) who is to judge whether or not there was indeed a bad motive behind this action if person offers some sort of qualification for the action? While I didn’t understand very much about equity before reading these passages, I think I understand less now that I have.
(Also, there is no forgiveness for internet spammers like the first poster.)
I found the first few chapters confusing, but as the chapters went on I began to understand more. I thought it was interesting that Aristotle proposed that the prosecutor should consider the number and nature of the things that all people desire when they do wrong to others, and the defendant should consider what and how many of these do not apply. Aristotle then was able to break down the reasons people do things into seven causes: through chance, through nature, through compulsion, through habit, through reason, through anger, and through longing. It seems that the better a person understands why and what causes another person to take a certain action, then that person has a grasp at not only what moves that other person, but also how to use this information to his advantage to influence the other person.
Aristotle continues with what is pleasurable and discusses how to do the same things often is pleasurable. After reading this, I immediately thought that this was a broad statement. Some things that one must do everyday are not often pleasurable. Yes, I think people find comfort in having a set schedule and having some kind of order, but the person has to have a passion for or like those things that the person is doing everyday in order for it to be pleasurable. Otherwise, it is just a chore in which a person is going through the motions. I did agree with Aristotle’s list that most people are for most part fond of flatterers, lovers, honors, and children. It seems that this list is geared to people’s need for love and acceptance.
As the chapters went on I found the reading more interesting. It is crazy to think that a jury could potentially be made up of over 200 people and that the standard to be judged was either in accordance with the law or if the law was unclear in accordance with the jury’s best understanding. Moreover, it is outrageous that the jury was to decide which evidence was admissible and inadmissible and decisions could not be appealed. It seems that if one was accused, the burden on the accused was insurmountable. Although Aristotle had a big task in showing how to use and refute evidence, he had some good points. For instance, if the written law was on point with the facts of the case, then the one on trial should make the argument that standard “in the jury’s best understanding” does not mean to judge however he would like, but rather to follow the law that applies.
I wonder how Aristotle was viewed by his teachers, because it seems to me that he was the type who continually bucked their lessons and formed his own ideas and formulations on the topics of his day. Though it seems that their society was one of free thinking and mutual exchange of rhetoric and thought, there must have necessarily been some conflict and competition between these scholars (especially considering that many of them taught Aristotle). Like Professor Osler said the other day, he necessarily likes to be the only expert in the room or at least more expert than the person he is talking to- compound this thought by the idea that the other person is a student/former student.
This competition is natural, and indeed Aristotle spends much time devoted to this theme, including the idea of revenge as pleasurable. Was Aristotle enjoying it when he denied Speusippus' definition of pleasure, and did it anger Speusippus to the point that he wanted intellectual revenge on Aristotle? Or was it a proud moment for the teacher Speusippus to see his former student thinking beyond convention and formulating novel ideas? Maybe they should have taken Doc Holliday's approach and had a spelling contest.
In Chapter 11, we read that compulsions are painful because they are necessary. Once they become habitual, however, they're pleasurable because we delight in things that become part of our routine. The trick then, to being happy, healthy, and honorable, is to continually incorporate difficult things into our daily lives. Dieting, exercising, studying, cleaning, anything that we know should be done but find hard to actually do can become pleasurable if we make in a part of our lives. Then, it becomes comforting because it is familiar.
Chapter 12 taught about people who wrong and those that are wronged. People who wrong (just like people who do not wrong) have, consciously or unconsciously, weighed the costs and the benefits of their actions. Aristotle refers to this in several situations, including ones where the risk of detection is small or where the punishment is less than the benefit received. I think that this is reflected in our civil and criminal justice systems, where we require a mens rea for all but a few crimes, and those where intent in not required are based on public policy. I also found it interesting the people that Aristotle says are commonly wronged, the ones who make themselves easy targets and the ones we will not likely be punished for wronging. These are, most commonly, the victims of crime and other unjust acts that we see today. These are the people that we aim to protect with our laws, the ones that cannot protect themselves.
We also read that what is just never changes, while the written law may. For some reason, this made me think of Professor Guinn talking about how, with regards to our Constitution, the written law never changes but the unwritten law does. I see both points of view. I think Aristotle means that popular opinion, embodied by the written law, is fickle. I'm pretty sure that Guinn was referring to the fact that the interpretation of written law is influenced by both the time in which it's interpreted and the people interpreting it. Both seem unsavory conclusions. I would like to think that my unwritten law is steadfast and correct, but that's arrogant. What is the unwritten law and how do we know if someone has complied? That sounds like 201 or 501 different sets of laws.
I found it interesting the way Aristotle broke down the motivations behind man when he commits a wrong. Many times I over simplify the motivations behind people’s wrongful actions, and simply think bad people do bad things. Aristotle goes on to break down the varying motivations behind people’s actions, and many times it’s not that the person is evil themselves. The ambitious man does wrong for sake of honor, the fiery man from anger, the lover of victory for the sake of victory, the bitter man for the sake of revenge, the dim-witted man because he has misguided notions of right and wrong, the unabashed man because he does not mind what people think of him; and so on. The wrongs that one does to others correspond to his particular character faults. However, this does not necessarily mean that the person is evil. Aristotle goes on to attribute man’s actions to one of seven causes: chance, nature, compulsion, habit, reasoning, anger, or appetite. I also found Aristotle’s discussion of pleasure very interesting. I never really thought of pleasure as a movement by which the soul as a whole is consciously brought into its normal state of being; and that pain is the opposite. We are constantly in search of pleasure, and long to be in our normal state of being. I have never really considered habits as pleasurable. I often consider habits boring, repetitive, and mundane, but Aristotle gave me a new perspective regarding habits. Habits are pleasant because as soon as something has become habitual, it is natural and familiar. I guess habit and routine should be considered pleasurable because they indicate stability in one’s life, and you are familiar and comfortable with your habits.
I enjoyed reading about these Greek "truths" which seem to hold true in any culture. Aristotle mentioned that the young are prone to anger or longing, but that they don't act in this way because of their age but because of anger and longing. I have never thought about an emotion controlling the actor. I do think that "anger" and "longing" tend to prey on this age because there are so many difficult life changes. This brings and interesting perspective to my normal psychology about people. It's the emotions that sometimes attack the person. Aristotle goes through his logical analysis for pleasure and ends up saying everything is pleasurable for which there is longing. This makes sense because no one would long for something that they hated. He goes on to describe "in accordance with reason" as longing based on persuasion. I'm sure he would use this idea when talking about speaking in front of an audience but I initially thought this is our current advertising system. We desire things after hearing about them and being persuaded that they will bring us pleasure. Aristotle describes winning as pleasurable for all (not just those fond of it). When I read this it reminded me of one of my favorite and instant classic movie quotes from "There Will Be Blood," when Daniel Plainview says, "I have a competition inside of me." I think Aristotle knew that not only the Daniel Plainview's of the world believe they have a competition inside of them but everyone has that drive and desire not matter how small or weak it might be.
The interesting history of the word logos bears further study! I recommend the Meno and the Timaeus by Plato.
Logos in Platonic philosophy (and therefore, responded to by Aristotelian philosophy) refers to more than just simple reasoning, the sort of analytic and inductive reasoning we in the post-Enlightenment era engage in.
Logos considers the whole of human reason, including reason itself, that is, the universal organizing principle by which discourse is governed. For Jewish (and later, neoplatonic and Christian) philosophers, this became synonymous with a rational divinity that ordered the cosmos.
Aristotle's reaction is a reaction to the concept of universalizability in Heraclitus and Plato; whereas Aristotle located universals inherent in the substance of the object itself, universals were, for earlier Greeks, things apart, in themselves. By taking logos from the ordering principle of the rational universe and making it instead the law by which thought was governed, Aristotle became an important step along the way to the discoveries of the 19th and 20th centuries in philosophy, and how language, thought and concepts shape the world around us.
33 comments:
I liked what Aristotle said on page 85 that it doesn’t matter what color a person is; however, the age of a person is always relevant. It is interesting that so long ago he wrote that but in America that idea is something that wasn’t embraced for a long time. The criminal justice system in America originally was too concerned with race and far less concerned with the age.
In chapter 11 Aristotle says that new things are painful until they become habit and then they are pleasurable. I think Aristotle’s idea is negated by PC. The reading assignments became manageable; however, they were never any source of pleasure from repetition.
I agree with Aristotle that the general reason for doing something that is wrong is because the reward outweighs the risk. I also think it is true that sometimes a victim is chosen for the simple fact that the person isn’t expected to respond to being wronged by seeking revenge.
I was surprised to see how Aristotle considers trial to be a way of balancing the books even though many harms can never be corrected. It is an idea that Professor Wren constantly pointed to.
I found Aristotle's distinction between common law and written law very interesting. I had not realized that the idea of common law had been articulated so long ago. His discussion of why people do wrong had echos of Professor Sehr's lectures on Mens Rea. He makes a distinction between willing an unwilling actions, between accidents and intentionally acting. He may not have used the words, but he did show why a negligent act is not as bad as one done knowingly or intentionally.
I actually agree with Aristotle that things which are repeated enough become habit and eventually pleasurable. PC reading may never be pleasurable, but other habits are. This can be seen in anyone who makes a habit of running or other physical exercise – it is painful at first, but once it becomes a habit, it is pleasurable, and going a long time without running becomes painful.
The discussion of possible arguments for and against witnesses, contracts, and the other forms of evidence was interesting. I liked the skeletal nature of how he presented it – allowing the reader to fill in the details from their own case.
I found the final section of 1.15 the most interesting of this assignment. I wonder how much significance is placed on the oath that witnesses take these days. Even in Aristotle's time, he indicates that the oath may be more meaningful to religious people than irreligious. However, it is interesting to see how Aristotle deals with the different situations that may develop given that an oath was optional between opponents in a case. Not all of these situations are applicable to our modern system since the oath witnesses take is not optional. This may further weaken the effect of the oath. A witness can't get on the stand and testify if he/she doesn't take the oath. Therefore, it is speech that is forced and may have little to no effect on the jurors. I'm in Civil Liberties right now and this reminds me of the Jehovah's Witnesses who argued that a public school policy requiring all students to say the pledge of allegiance was unconstitutional. In that opinion the court described compulsory speech as ineffective.
The oath witnesses take may mean something to some people, but it certainly doesn't mean the same thing to everyone. Jurors must determine truth. In a case where each party says completely different things the jurors determine who is telling the truth. When both parties had to take the same oath, the oath itself loses its significance. The jurors must determine which one is lying based on other factors and no party is any more credible based on the oath that he/she took.
Book 1 Chapter 13 really stuck out to me in this assignment. Probably due to the fact that I found it the least confusing of the entire section. Interestingly, Aristotle deals with how people classify wrong doings and acts. He delves into how all actions are either just or unjust in the eyes of law and ultimately this is based on virtue and concerns the individual at times and then the community at other times. One of the more poignant passages of this chapter discusses how people admit to an action but wont admit to the specific terms of the crime with which the actions deal. Aristotle uses the example of how people will gladly confess to having 'taken' something, but will not confess to having 'stolen' something. This passage intrigued me, because, in a way, as lawyers, everything we do is about semantics and perspective. I guess this goes back to just how much of the law is based on the letter of the law and how much is truly left to the advocacy of the attorneys involved. In my mind, coming from a strong family law background, I believe that most points in law can be argued both ways. However, there are those that believe that it cannot. There are those that believe that the law is the law and should be applied in a certain way. I almost tend to agree with Aristotle in that he suggests that we look to the person to determine how to classify a legal occurrence, not the law. This gives the legal profession a much more human side, that I think it should have. This conflicts with the state criminal sentencing system to a certain degree in that to determine a person's sentence, you look to the action and then determine from penal codes how the sentence is to be described and what the elements of that crime is. Honestly, I contend that we look to the nature of the person, first, to determine their reasoning and then determine how to sentence that person. I have just always felt that the law should have a more human side, however, it is hard to put that into words.
This section was once again fairly confusing, but I liked how he broke everything down. The reasons that people do things, the 7 causes of human action, was suprising because no matter how you look at something, those are the only real reasons anyone would do anything. I mean the groupings are very very accurate, if not over simplified. It also stuck out to me how pleasure drives so much. Aristotle says that anger can bring pleasure beacuse of the thought of vengence, and I think that says quite a bit about how to manipulate emotions with a jury. You can, with the right story and advocacy, make the jury feel good about a decision. This applies where every emotion is involved, and I think that the way to sway a jury is to find the outcome that you want and figure out a way to make the jury get pleasure out of coming to that decision. This is really relevant where the law gives a lot of wiggle room, and is especially true in cases that aren't exactly cut and dry.
This kind of ties into what Brennan said, how a trial is a balancing of the books. I'm suprised at how that is still a motivating factor today, though it makes a lot of sense. I think a community or a soceity as a whole can have emotions, and balacing the books and doing something solely for the "just" reasons are just as healthy for a community to do as for an individual to do.
While I was thinking about what to write for my post, one of my favorite trial movies came on TV—Philadelphia. It’s a great movie with Tom Hanks and Denzel Washington…spoiler alert in this post for those who haven’t seen it yet. The basic premise is that Tom Hanks is suing his law firm for firing him based on him having AIDS and Denzel Washington is Hanks’ attorney. This movie takes place at a time when AIDS attached many negative stereotypes and was considered a death sentence. When Denzel Washington gave his opening statement though he said, “Despite what you think of the morality of firing Andrew Beckett [Tom Hanks], the fact is that when they fired him because he had AIDS, they broke the law.” That goes to the heart of what Aristotle was talking about with logos in the judicial arena. At that point, Washington’s character tried to have the jury remove their emotion feeling surrounding the case and instead use logic in following the law.
I think that Aristotle states two important goals the speaker in a judicial setting must achieve: establish the facts/what was done and establish the course of action that must be taken/why the law must be followed. I think prosecutors and plaintiff attorneys need to be especially aware of those two goals because they are asking the jury to do something to make the status quo different and thus have to prove their position to the jury. In Philadelphia, it wasn’t enough to just show that the firm fired Tom Hanks’ character because he had AIDS, Washington had to also persuade the jury why that discrimination had to be punished in terms of damages. The prosecutor does this too, and I think he has to use more logos than any other attorney because he has to prove his case using the logic of evidence and not through the emotion of the situation. After it is proven that a defendant did the crime, the prosecutor must then show why that defendant must have a certain sentence. I think it is interesting that today’s attorneys are still being taught the lessons that Aristotle spoke of in ancient Greece.
The very first part of Chapter 10 talked about three things that should be included in an argument: why people do wrongful acts; what their mental state is when they’re doing the act; and what kind of person the wrongdoer and the ‘victim’ is. I feel like this is what is necessary for good story. In PC, Professor Powell always encouraged us to tell good stories in opening/closing and through witnesses. He also encouraged us to develop the plaintiff and the defendant’s characters- he said that if the jury doesn’t like your client, then how can you expect them to decide in their favor?
I found myself going through the majority of the reading and questioning all of Aristotle’s generalities about the way the world works and why people do what they do. For the most part, I think he was right. Aristotle talked a lot about people acting mainly for self gain- for pleasure or desire for something. I wonder what Aristotle would have thought about selfless acts. He seemed to suggest that if you do something good for someone else it was because your character was good and you were acting in conformity with it out of habit. But what about people who do not have good character but still do something selfless? Has that person changed their character completely by this one act of selflessness? Would he argue that they would be acting out of ‘habit’ if this was the first selfless and good act they had ever done?
Aristotle talked a lot about the difference between two kinds of laws: laws that are written by man for particular communities and laws which are universal and a part of our innate sense of right and wrong. I liked how he pointed out that sometimes man made laws could even violate our innate sense of right and wrong- and that if that happens, we should attempt to change the law. I also like how he advised the use of the universal law for the benefit of your argument. I think this is like using a moral argument. However, people can have many different ideas of what the universal law is- for instance, some people think it’s never ok to steal, while others think if you’re stealing to feed a hungry child then it’s acceptable. If we were to take Aristotle’s advice and argue the moral or universal law, I would think we should do so as generally and carefully as possible so as not to offend a juror.
Finally, I’m glad Aristotle disapproved of the use of torture as a measure of reliability. Obviously the wimpy people would say anything you wanted, truth or lie, to avoid physical pain.
A father of a newborn knows no pleasure. Aristotle spoke of having pleasure. Aristotle never had kids.
"Habits are pleasurable;" "Duties and studies and exertions are painful; for these too are necesasrily compulsions unless they become habitual; then habit make them pleasurable." FALSE
What started out as a duty to get up every 2-3 hours to attend to the newborn, if we even got that opportunity, turned into a nightly habit that continues into week eight of this little dude's life. There's no pleasure here, Aristotle.
"And to be revenged is pleasurable; for if not attaining something is grievous, getting it is pleasurable, and angry people who do not get revenge are exceedingly pained, but while hoping for it, they rejoice." FALSE
I'll admit it. I've thought about revenge. It makes me kinda happy to think I could wake him up while he's trying to sleep and hope, on some level, that he understands how painful it is. However, I think a step ahead and realize that if I wake him up, he'll just start to cry. Then I lose that brief and valuable sliver of time without noise. So, revenge wouldn't be pleasurable. It would suck.
With regard to torture, it can work. I mean, just watch "24." Torture always works for Jack Bauer. I think Aristotle would change his position after watching Season 1.
I thought I might also look at what Aristotle meant by “pleasure” this week. I think that, on a very general and rather obvious level, Aristotle is saying that arguments should appeal to what an audience finds pleasurable. However, it is obvious when he states on page 88 that “Duties and studies and exertions are painful…[but]…habit makes them pleasurable,” and memories are also pleasurable, even if about painful subjects, provided “their consequences are honorable and good,” that “pleasure” indicates something very different from enjoyment.
It appears to me that Aristotle is saying that an “appeal to pleasure” is, in modern terms, an appeal to the comfortable and familiar. Looking at the many lists and iterations Aristotle provides of things that are pleasurable, the term pleasure seems to embrace not merely habitual, and therefore comfortable occurrences, but also what may be termed metaphysical habits—ethics, morals, perhaps even the stereotypes that the audience frequently utilizes. This is why I think the form of the sermon played such an important role in several closing arguments that I have seen—by utilizing the rhetorical devices and forms of a sermon an attorney can incline jurors to trust what he saying, perceiving the similarity between what the attorney is saying and what many jurors are used to trusting and hearing on a habitual and weekly basis.
I think the corollary to the “appeal to pleasure” is equally important—and that is appealing to a sense of deviancy. If an attorney can convince the jury that what a defendant has done deviates from the jurors’ sense of normal behavior, then that significantly impacts the jurors’ ability to emphasize or sympathize with that defendant. After all, it is hard to have empathy for someone who has done something you would never have done, or never even have conceived of doing.
I found this reading a bit easier to understand than the previous. I enjoyed the last chapter the most. It truly baffles me that the concepts discussed so long ago are still applicable today. For example, the discussion on torture could not be more applicable today. It seems like the media, television, and movies put a specific emphasis on torture and the potential gains it can offer. We have all seen Jack Bauer be tortured/torture others to save the world one too many times. But the use of it is flawed for precisely what Aristotle explains. Those who are tortured are more likely to simply tell lies to get the torture to end. I feel like it is easy to lose sight of this but it is important to remember.
I also found the emphasis on oaths to be interesting. The importance of an oath seems to be fading to me. I think the "Do you swear to tell the whole truth, nothing but the truth..." has lost its value because it has become so prevalent, or become habit. Taking an oath is a powerful thing, and it should be. I think the value in it should be reinforced. The fact a young child can say the phrases involved based on what they see on TV has taken away from its value. It is difficult to sit back and understand why you say something or what it means when you learn at a young age, it becomes a habit. It is like religion, you are taught it when young but unless you take the time and are taught to reflect on what you’ve learned, there is no basis or foundation for it. I feel like this needs to be reinforced.
Sameer Karim
I would first echo Mr. Lawrence’s comments regarding pleasure. Specifically, his discussion that often times, things that aren’t pleasurable to begin with, become more so after they have become a habitual activity. The case then becomes when an individual discontinues those habits, it “pains” them to do so. Individuals who engage in regular exercise or are accustomed to waking early have a difficult time when they get out of those habits or those routines. I suppose that speaks a lot about human nature in that we generally find routines, order and habits essential to our daily functioning and happiness.
I also thought the discussion on how we differentiate between greater and lesser crimes particularly interesting. The more brutal the greater; the more premeditated the greater, and so on and so forth. This is such a relevant discussion, even in modern society, because it focuses on the sensitivity we have to the particular facts of a case. Specifically how the facts, both good and bad, can determine how a case will likely turn out. That being said, there is certainly room for a persuasive presentation of the facts, but I think this particular discussion highlights the importance of paying close attention to the facts.
Great litigation in the courtroom isn’t hard to pull from Aristotle’s discussion of natural law and humanity’s response. He considers the number of people affected a key factor in pointing to the culpability of a criminal. Practically, pointing at the defendant and holding up the drugs she was going to sell offers less culpability than tying her to the effects of her crime. Tie her crime to the larger effects of drugs like addiction, broken families, the networks supplying drugs by oppression and exploitation, the resulting violence in our country and others and the jury will blame the defendant as the catalyst for all those effected, instead of just her own criminal actions.
Aristotle exposes that when there are multiple bad acts, we place blame on the person with the worst motives. In practice, as Gerber defends a product liability suit over its child safety seat, their defense is not limited to their own innocence (“We would never trade safety for profit”). Instead, point at the father more concerned with getting to movie on time than making sure his daughter’s car seat was buckled up the way it’s supposed to be. At the very least, the jury’s comparing motives, which means they’re comparing fault, and at best it allows the jury to put the worse motive on the parent.
Taking Aristotle’s valid observations on the way humanity views particular conflicts seems like a great way to pick the best theme for your case. Unfortunately, it also reveals the ugliest side of the law: manipulating people into the resolution you want. It allows lawyers to take their knowledge of human nature and present their position in a way that uses human nature in their favor. And what scares me most is that those situations make it easier to lose sight of the aspirational aspects of the law (justice, truth, mercy, peace) and instead becomes an outcome driven competition between attorneys.
I appreciated what Aristotle had to say about the element of pleasure that exists in anger, grief, and revenge. To take these seemingly negative emotions and point out the pleasantness that exists amidst them is important in life, but also in the court room. No one wants to be thought of as wrathful and vengeful. The key is to focus a jury on the pleasure that exists in anger and revenge. To show that while it may not be pleasant that the defendant’s conduct angers and outrages the jury, the verdict that results from that anger can be pleasant because it upholds a sense of justice.
I also enjoyed chapter 13 where Aristotle talks about defining just and unjust acts based on the two different kinds of law. By discussing justice in accordance to acts and laws he goes away from what he was taught a little bit (I think I remember Socrates and Plato speaking of justice as a lifestyle. A person is either just or unjust and justice is not based on individual acts), but he also raises interesting point about justice that is binding on all men universally even if they have no covenant with one another. As Mr. Lawrence pointed out, Aristotle articulates common law principles so early on. I especially like the part of 1374 where he talks about principles of equity. He says that equity makes up for a community’s written code of law. We look at principles of equity when determine whether an act is a misfortune of errors in judgment or criminal.
Perhaps Aristotle speaks about habit becoming pleasurable because he understands that we are creatures of habit and appreciate the familiar, or perhaps he just knew his book would be hard for us to read and he wanted to trick us into thinking that if we read his words enough it would one day be pleasing.
After reading Chapters 10 - 15, I feel so much more comfortable reading Aristotle in general. I feel like these chapters broke everything down categorically and that is definitely the way that I learn and think. Especially with logos, I think that Aristotle had the right idea with breaking everything apart so when you put them all together, they can be logically explained.
I thought it was interesting in Chapter 10 that Aristotle categorized the reasons that people act into seven causes: (1) change, (2) nature, (3) compulsion, (4) habit, (5) reason, (6) anger, and (7) longing. He states that there is no need to distinguish actions further, because there is always one of these causes at the heart of the action. In being an attorney, I believe of the most important skills to learn is how to figure out people. To be successful in solving any kind of dispute, whether civil or criminal, it is essential to understand the underlying interests of the parties involved. The first step in this is determining the reason why someone has acted in a certain way, and categorizing the behavior by one of the seven causes could benefit the process of determining a party's underlying interest.
Additionally, I thought it was interesting in Chapter 11 when Aristotle discussed that all pleasurable things are either present in perception, past in remembering, or future in hoping. Before I read this chapter, I always thought of pleasure as only present. In regards to the past, Aristotle stated that "memories are thus pleasurable, not only about things that were pleasant when they were going on but even about some unpleasant things if their consequences are honorable and good." This struck home as true, because it is a common thing for people to take pleasure in past actions. For example, after running a marathon, even if the person was in pain all throughout he will most likely remember the experience with pleasure. This chapter gave me a whole new perspective on how to think of pleasure in regards to people's actions.
In Chapter 12, I liked Aristotle's explanation regarding the idea of "It will never happen to me." In regards to why people do wrong things, he stated that people think they will not be detected, or if detected they will not be punished, or if punished the penalty will be less than the profit to themselves or their loved ones. I think that everyone, to some extent, has this mentality about wrongdoing. This mentality also makes it easier to commit or go through with the wrongdoing since the consequences seem slight. Deterrence in both criminal and civil laws seems to speak to this common mentality about wrongdoing. The more that people are punished and made examples for committing wrongdoing, the more that others will realize that getting caught and punished for their wrongdoing is more likely.
Lastly in Chapter 15, I appreciated Aristotle's shout out to the thin-skinned people. Although he pointed out that torture is a kind of testimony that seem to have credibility involved because it is necessary to speak, he also noted the practical problem that thin-skinned people will out someone just so they can avoid torture.
Aristotle’s deconstruction on why wrongdoers commit wrongs struck a tone with me. After he laundry list of reasons, I think it became clear that motive is not an element for crimes, because actually all crimes are committed to achieve or receive some benefit that outweighs the punishment or chance of punishment. Every wrongful act has an underlying motive.
I agree with Aristotle that new things can be painful at first, but are pleasurable when they become habitual. This reminds me of my parents always telling me to put my toys and belongings back from where I found them after I used them. It was such a chore to put the items back in their proper place, but now I enjoy taking time to do this. However, this is not true for all things. Researching legislative history is, at first, painful, then becomes monotonous, and finally, horrifically boring. Only Siths deal in absolute, Aristotle.
His section on unpleasant experiences becoming pleasurable memories is spot on. Any one visiting old friends can vouch for this. I cannot count the number of times my friends transformed a dumb, embarrassing moment to great memory.
Aristotle’s thoughts on torture are interesting because today’s political leaders still discuss the benefits and downfalls of compelling information from people. How have we not gotten to the bottom of this after several millennia?
I did not really enjoy this reading assignment as much, I think partly because Aristotle purports to deal in absolutes, but I think all of the ideas he discusses in these sections can't be reduced down more than mere generalities...
Am I reading this wrong, or is Aristotle saying there cannot be wrongdoing without someone harming willingly in contravention of the law? He at least says that there is only injustice when it is voluntary. If that is what he is saying, I don't necessarily agree. I think that there can be wrongdoing/injustice even if the person unintentionally acted or didn't act in a certain way. There are whole areas of law based upon this idea as well (negligence and products liability are common examples).
Also, I am a little confused as to Aristotle's idea of the scope of what he calls common law. He says it is the law of nature, do you think he would include the idea of religious law or moral law within that his definition? I agree with Luke with regard to his comments about common law, I had no idea that the idea went so far back. I also thought Aristotle's discussion of how fairness was a justice that goes beyond the written law was interesting. I think he essentially said that common law was the natural law and that it could trump written law and that the judges were the bringers of "true justice."
I thought it was very interesting that Aristotle said compulsion is not natural, people are compelled to work, work is painful unless is becomes a habit. I wonder how broad he is speaking when he says work? I would think that the desire to produce something with your own hands could make work pleasurable.
I like it how Aristotle switched into poet mode in the middle when he starts talking about love: "The starting point of all love is the same to all; [it occurs] when [people] not only delight in the beloved's presence but delight in remembering one absent…"
I thought Aristotle may have missed the mark a little when he said that there is pleasure in narrow escapes from danger for the reason that it brings admiration. I think narrowly escaping from danger is pleasurable because you escaped from danger. I don't think it has anything to do with admiration. Maybe once you write a novel about it…
I thought Aristotle was spot on when he was identifying groups of people that do wrongdoing and he said: "but those most think they can do wrong without penalty who are skilled at speaking and disposed to action and experienced in many disputes and if they have many friends and if they are rich."
Page 100 starts to sound/read like a LAPP treatise on statutory construction...
The last thing I am going to mention is something that I thought was hilarious when I first read it. Aristotle is listing off essentially the types of evidence that can be heard in court, laws, witnesses, contracts, torture, … I like how he just seemed to try to slip torture in there, no big deal-style. Of course, he goes into it later and elaborates on what he was referring to, but when I first read it I laughed. I think Aristotle's opinion that nothing is credible when there is torture is great, and I think this idea is of great importance in this day and age, especially with all the back and forth with regard to US prison camps like Guantanamo and the means that have been employed to obtain information from prisoners.
For the most part, I think that Aristotle has a good understanding of human psychology and why we do the things that we do. But, I think that Aristotle takes too strong a stance on some of these concepts and doesn’t take into consideration different personalities. For example, as Ms. Gee has already pointed out, Aristotle seems to ignore the possibility of a selfless motivation behind an action.
I also don’t understand why Aristotle believes that habits are pleasurable. When you do something out of habit, you are almost doing it without thinking about what you are doing. I find no pleasure in doing something that little to no thought goes into. Furthermore, when it is a habit that was forced upon me (such as the PC reading which has been mentioned), no matter how long I continue to do that reading, I will never find it pleasurable. I think it will still remain painful. However, I do agree with his discussion that there can be pleasure when remembering things that were painful. When I look back on some of the more painful seasons in my life, I tend to not always remember the pain but to find pleasure in the fact that I overcame the situation in the midst of the pain.
As a final note, I think it is interesting that Aristotle’s arguments regarding contracts in Chapter 15 are arguments that are still utilized today. I sat in on a trial regarding a contract dispute recently and both sides argued many of the same arguments that Aristotle states.
In Chapter 15, Aristotle makes a suggestion when arguing before a law court. He says that “if the written law is contrary to the facts, one must use common law and arguments based on fairness as being more just.” Aristotle then cites Sophocles’ Antigone as authority for this proposition. Now, I thought at first that the Athenian ability to argue to the court in contravention of the law based on “common law” or natural principles of fairness was indicative of a proto-legal system, one in which sophistry and appeal to the masses could overcome the rule of law. Then I thought about it some more and realized that in the American legal system this type of appeal can still be made. In a criminal trial, the jury can still acquit for any reason it wants to. The jurors don’t even have to specify a reason and their decision is not appealable because of double jeopardy purposes. I think the reason for this power of the jury relates back to the Athenian concept of the jury. The Athenian jury was huge, sometimes made up of hundreds of citizens. It could be said then that people in Athens were punished according to the will of the public. Just as in ancient Athens, the American system gives the jury an unlimited acquittal power because of the principle that government can punish only with the consent of the people, the public. Therefore, Aristotle’s advice can still be followed today in an American courtroom, although a lawyer probably cannot exhort the jury directly to exercise their unlimited acquittal power. Thus Aristotle’s advice must be tempered and approached with more nuance today, but can still be a power arrow in the rhetorical quiver.
I think that the first two chapters of this reading could have been significantly shorter. By that I mean, I think Aristotle could have summed up his entire premise by saying, people will always act in a manner that is self-interested, and if that motive is not immediately apparent, step back and examine the broader context and it will be easier to spot. The seven categories he set up all seem to say the same thing, especially when he follows this with a chapter about pleasures.
He then spends chapter twelve explaining just how that self-interest manifests itself by indicating why wrongdoers do wrong.
It seems that these three chapters could be summed up as; people will act in a self-interested manner. People will act wrongfully when their self-interest dictates they should (i.e. when the potential benefit outweighs the potential consequences).
I like the breakdown Aristotle points to in chapter 13 when discussing just and unjust action. I do not, however, necessarily agree with his discussion about “fairness”, at least not as far as it might find application in the criminal courts. I think that the goal of the criminal justice system is to punish wrong action. Once that wrong action has been proven, I think that the blind scales of justice should take over, I think that the personal history of an individual can be taken into account, but I think it is far from the most important thing in determining punishment.
I did read the last two chapters of the assignment but I’ll stop here for fear of getting too longwinded.
Like Hunter, Chapter 13 was the one that stuck me as most interesting. I think, though, that my views may differ from his. Aristotle discusses how there's basically two sides to every coin - "taking" instead of "stealing" or "striking the first blow" instead of "violent assault." The way I read it, Aristotle seems to say that the way the accused tries to explain his actions is controlling on whether he was wicked/unjust or not unjust. That seems terribly self-serving, however. Anyone can, and will, make excuses for their poor choices. However, merely giving a valid explanation of a situation does not make it true. There are many situations where the wickedness or unjustness of an action is irrelevant - merely breaking the law is bad enough, because there are other issues at hand.
Take, for example, a case of a person who gets a speeding ticket. He pleads with the officer that he just didn't realize he was speeding, it was a temporary lapse of judgment. Was he unjust or wicked for having a momentary failing to pay attention for a moment? Certainly not. But, the public interest of protecting other motorists is more important than his moral justness or unjustness. So, I think that Aristotle's view is either somewhat too simplistic in its analysis, or it should merely be only attributed to certain punishable acts. Of course, there were no cars back then so he couldn't have properly rebutted my example anyway...
I think Aristotle lacks imagination when it comes to people’s motivations for wrong-doings. The entire book ten seems a little naïve and childish, ignoring a broad range of human emotions and motivations. In my experience, many wrongful acts can be attributed to some combination of: love, stupidity, and subconscious compulsions. I know Aristotle pays stupidity lip service in chapter 10 and love is mentioned in 11 but neither is given the credit it deserves. Additionally, irrational desires and how people deal with them could have been a topic of a book on of its own. Generally, I think the first two chapters gave men too much credit for control over their own actions. I know that wrong doing requires “voluntary” acts but I don’t necessarily agree with Aristotle’s attitude as to what is voluntary.
Chapter 12 dealing with victims and circumstances seems to me truer. Most of the first of the chapter seems to view victims and their victimizers as a mixture of character and chance—which is closer to my world view. While this chapter deals with people on a more base level, I still think too much credit is given to people’s thoughts regarding what they do.
I really liked chapter 13’s discussion of natural law and the differentiation between actions and the moral impetus behind them. The misfortune/error/criminal act breakdown was great. I really got into Aristotle’s discussion up through chapter 14. Generally, the break down in both of these chapters was good and it was nice to see a little more abstract philosophy separated from Aristotle’s earlier views.
First I would like to respond to what has been said about PC. I agree that the reading of cases never became pleasurable, but some parts of PC did become comforting through repetition. I know many classmates who enjoyed the "Good Morning" that welcomed us to the day. I myself eventually felt a sense of comfort in having my spot in the classroom, a predictable routine for studying, and knowing what to expect. The pleasure from reading cases was in knowing that you were prepared for class and had learned something you would have to use at a later date. You knew that you had accomplished something that day. The pleasure that Aristotle refers to is not simply pure joy, but he divides everything into either pain or pleasure. After reading this chapter on pleasure I found myself realizing how many little things fit his definition: putting on your jacket because the air conditioner is cold, finishing a blog post, using wikipedia to figure out something you were curious about, watching someone bang a dent into the truck that has caused many dents in your own car, the parking spot in front of your place being empty, the sound of silence when you arrive home, and someone really listening when you talk.
You can tell that this must have been compiled over some period of time because he attempts to list every possible reason why people do things. He also explains how all other reasons really fit into these 7 categories. I think what he comes up with is very interesting considering the context. He is basically making this analysis relying on his own experiences and the teachings of other Greek scholars. He did not have the benefit of hundreds of years of studies on psychology or the exposure to the thoughts and feeling of people around the globe. I understand why it is so important to understand motivations and be able to explain them when arguing a case. To a jury, understanding why something was done is like the missing piece of the puzzle. The only way to know for sure is to read people's minds. If no one explains to the jury why the defendant did what he or she is being accused of, then they probably will not believe it was done.
Aristotle's legal arguments are still used in courtrooms today. Aristotle suggests that if the law doesn't help then just argue for what is fair and just and if the law helps that argue that it is the jury's job to follow it. He also seems to comment on the importance of credible evidence, whether it be testimony or a written contract. Aristotle makes it clear that there is always a way to argue both sides of the coin.
I focused on Chapter 14’s discussion of degrees of wrongdoing. I am especially fascinated in light of a recent internal debate I’ve engaged myself in (it’s probably as crazy as it sounds) – which is the worse crime / transgression / sin: murder or sexual abuse of a child. I am strongly inclined to consider the later as the heavier sin; but this is due in part (not sure how large) to some visceral reaction for which I have no explanation. So I have engaged in this debate in order to articulate a sound reasoning that can support such a position. Perhaps Ari and his koinon can offer some guidance in this.
His first point is his most intriguing; so of course I shall save it for last. Judging the gravity of a crime based on the harm done is a cornerstone of our justice system, which weighs murder greater than sexual abuse of a child (although, again, I feel this because of mistaken viewpoints of the two). Where there is no equal punishment – our laws allow us to take the life of one who has taken the lives of others; although we cannot sexually assault someone in return for their acts. Yes, there is something to be said for what happens in Oz; but this is not a technical punishment handed down by our courts.
Where there is no healing the wrong, for it is difficult, even impossible, to undo – what a minefield this one is. Of course there is absolutely no bringing someone back from the dead. And there is some possibility of surviving, meant in the best of terms, a sexual assault as a child; but I’ll be damned if statistics don’t show that every single person molested as a child doesn’t suffer some extreme, long-term harm. Where the victim who is wronged has, as a result, inflicted some great punishment on himself – this seems highly enlightened, but also highly dangerous in a practical criminal system such as ours. However, in light of this argument, the victim of murder is dead and can inflict no punishment of any kind on him or her self. The victim of a sexual assault as a child can inflict all manner of psychological and physical harm on one’s self as a direct result of the damage done by this act. Worse yet, they can inflict the same harm on another later in life, and by carrying this argument to its outer reaches, a direct causality vs. proximity argument can be made that results in punishment based on later resulting harm.
Lastly, for my words grow weak as the hour grows late, to Ari’s first point – where the injustice inheres in the potentiality. Prison is full of murders who, although definitely disturbed in some manner, do not poses the pure psychological break needed to sexually assault a child. And yet, isn’t a person who sexually assaults a child guilty of murder – murder of that child’s innocence; that child’s chance at normal; that child’s chance at relationships; that child’s chance at a fulfilling sex life; possibly even that child’s chance at having children of their own due to … well … the unspeakable. A cheap turn-of-the-phrase? Perhaps. But it is what fuels my holy honest and fierce wrath towards these people, if only in the biological sense of the word. Which wrong is the graver, the more brutal, the more magnanimous? Which wrong is more … wrong?
PS – Mere brain fodder having very little to do with the reading: although not obvious from the above post, I do consider crime / transgression / sin to be different entities, and I have strongly considered that two wrongs may share varying weights depending on the category of discussion – such that Wrong 1 may be a greater sin that Wrong 2, but a lesser crime.
Geez Aristotle, way to be a downer this week. I admit there is comfort in the routine and an ease of the known, but I hope not everything I do is driven by routine, competition, self-serving motives, or an effort to get away with some wrong. I agree with Cassie and Kim--he completely disregards any virtuous qualities people might have and trades them for an appreciation of competition, routine and those things similar to one’s self
The guy is talking from both sides of his mouth. We read four chapters about how we spend our lives bolstering ourselves, hiding our transgressions, and embracing the routine. But then, in Chapter 15, he says “it is not possible to divert justice by deceit or compulsion (for justice is based on nature).” Ha! Got you Artistotle! So he admits that our system is based on justice and that justice is based on nature, and not driven by deceit or compulsion. Well, good, now I feel like maybe humans have some redeeming qualities.
I did really like his assessment of how we grieve: “…a certain pleasure is felt in mourning and lamentation; for the grief applies to what is not there, but pleasure to remembering and in a way, seeing him and what he used to do and what he was like…sweet longing of tears.” I’m not sure how this ties into his other themes, but it’s a great testament to the sweet nature of the human spirit and our appreciation for others.
That anonymous above was me, Jennifer Salim. Perhaps I'm really not too good at this blogging thing?
The very brief discussion of equity in 1.13 interested me. In most law school courses, equity is glossed over at best and ignored at worst, so my understanding of the topic is limited. From what I understand, equity involves a lot of factors analyses or some sort of magical power that the court uses to address situations where the rigid application of the law provides an unsatisfying result.
But I had never thought about some of the more fundamental reasons equity is used – in situations where an individual has had some lapse in judgment, or misfortune, or there is some issue of human frailty at play.
While Aristotle portrays equity as the mechanism that accounts for the difference between a bad act and a foolish but forgivable motive, he also says that equity accounts for human weakness, which is a very broad statement. I wonder if this is a line in the sand that is less straightforward than it appears. How does equity play into a situation where there was a bad motive and a bad act? What if the consequences of the bad act are not proportional to the ‘bad morals’ that caused them? What role does equity play in a situation like that? As Aristotle stated earlier in the chapter, a wrongdoer rarely accepts the label for the act committed (the wrongdoer took something but is not ‘stole’ it) who is to judge whether or not there was indeed a bad motive behind this action if person offers some sort of qualification for the action? While I didn’t understand very much about equity before reading these passages, I think I understand less now that I have.
(Also, there is no forgiveness for internet spammers like the first poster.)
I found the first few chapters confusing, but as the chapters went on I began to understand more. I thought it was interesting that Aristotle proposed that the prosecutor should consider the number and nature of the things that all people desire when they do wrong to others, and the defendant should consider what and how many of these do not apply. Aristotle then was able to break down the reasons people do things into seven causes: through chance, through nature, through compulsion, through habit, through reason, through anger, and through longing. It seems that the better a person understands why and what causes another person to take a certain action, then that person has a grasp at not only what moves that other person, but also how to use this information to his advantage to influence the other person.
Aristotle continues with what is pleasurable and discusses how to do the same things often is pleasurable. After reading this, I immediately thought that this was a broad statement. Some things that one must do everyday are not often pleasurable. Yes, I think people find comfort in having a set schedule and having some kind of order, but the person has to have a passion for or like those things that the person is doing everyday in order for it to be pleasurable. Otherwise, it is just a chore in which a person is going through the motions. I did agree with Aristotle’s list that most people are for most part fond of flatterers, lovers, honors, and children. It seems that this list is geared to people’s need for love and acceptance.
As the chapters went on I found the reading more interesting. It is crazy to think that a jury could potentially be made up of over 200 people and that the standard to be judged was either in accordance with the law or if the law was unclear in accordance with the jury’s best understanding. Moreover, it is outrageous that the jury was to decide which evidence was admissible and inadmissible and decisions could not be appealed. It seems that if one was accused, the burden on the accused was insurmountable. Although Aristotle had a big task in showing how to use and refute evidence, he had some good points. For instance, if the written law was on point with the facts of the case, then the one on trial should make the argument that standard “in the jury’s best understanding” does not mean to judge however he would like, but rather to follow the law that applies.
I wonder how Aristotle was viewed by his teachers, because it seems to me that he was the type who continually bucked their lessons and formed his own ideas and formulations on the topics of his day. Though it seems that their society was one of free thinking and mutual exchange of rhetoric and thought, there must have necessarily been some conflict and competition between these scholars (especially considering that many of them taught Aristotle). Like Professor Osler said the other day, he necessarily likes to be the only expert in the room or at least more expert than the person he is talking to- compound this thought by the idea that the other person is a student/former student.
This competition is natural, and indeed Aristotle spends much time devoted to this theme, including the idea of revenge as pleasurable. Was Aristotle enjoying it when he denied Speusippus' definition of pleasure, and did it anger Speusippus to the point that he wanted intellectual revenge on Aristotle? Or was it a proud moment for the teacher Speusippus to see his former student thinking beyond convention and formulating novel ideas? Maybe they should have taken Doc Holliday's approach and had a spelling contest.
Two thoughts:
In Chapter 11, we read that compulsions are painful because they are necessary. Once they become habitual, however, they're pleasurable because we delight in things that become part of our routine. The trick then, to being happy, healthy, and honorable, is to continually incorporate difficult things into our daily lives. Dieting, exercising, studying, cleaning, anything that we know should be done but find hard to actually do can become pleasurable if we make in a part of our lives. Then, it becomes comforting because it is familiar.
Chapter 12 taught about people who wrong and those that are wronged. People who wrong (just like people who do not wrong) have, consciously or unconsciously, weighed the costs and the benefits of their actions. Aristotle refers to this in several situations, including ones where the risk of detection is small or where the punishment is less than the benefit received. I think that this is reflected in our civil and criminal justice systems, where we require a mens rea for all but a few crimes, and those where intent in not required are based on public policy. I also found it interesting the people that Aristotle says are commonly wronged, the ones who make themselves easy targets and the ones we will not likely be punished for wronging. These are, most commonly, the victims of crime and other unjust acts that we see today. These are the people that we aim to protect with our laws, the ones that cannot protect themselves.
We also read that what is just never changes, while the written law may. For some reason, this made me think of Professor Guinn talking about how, with regards to our Constitution, the written law never changes but the unwritten law does. I see both points of view. I think Aristotle means that popular opinion, embodied by the written law, is fickle. I'm pretty sure that Guinn was referring to the fact that the interpretation of written law is influenced by both the time in which it's interpreted and the people interpreting it. Both seem unsavory conclusions. I would like to think that my unwritten law is steadfast and correct, but that's arrogant. What is the unwritten law and how do we know if someone has complied? That sounds like 201 or 501 different sets of laws.
I found it interesting the way Aristotle broke down the motivations behind man when he commits a wrong. Many times I over simplify the motivations behind people’s wrongful actions, and simply think bad people do bad things. Aristotle goes on to break down the varying motivations behind people’s actions, and many times it’s not that the person is evil themselves. The ambitious man does wrong for sake of honor, the fiery man from anger, the lover of victory for the sake of victory, the bitter man for the sake of revenge, the dim-witted man because he has misguided notions of right and wrong, the unabashed man because he does not mind what people think of him; and so on. The wrongs that one does to others correspond to his particular character faults. However, this does not necessarily mean that the person is evil. Aristotle goes on to attribute man’s actions to one of seven causes: chance, nature, compulsion, habit, reasoning, anger, or appetite.
I also found Aristotle’s discussion of pleasure very interesting. I never really thought of pleasure as a movement by which the soul as a whole is consciously brought into its normal state of being; and that pain is the opposite. We are constantly in search of pleasure, and long to be in our normal state of being. I have never really considered habits as pleasurable. I often consider habits boring, repetitive, and mundane, but Aristotle gave me a new perspective regarding habits. Habits are pleasant because as soon as something has become habitual, it is natural and familiar. I guess habit and routine should be considered pleasurable because they indicate stability in one’s life, and you are familiar and comfortable with your habits.
I enjoyed reading about these Greek "truths" which seem to hold true in any culture. Aristotle mentioned that the young are prone to anger or longing, but that they don't act in this way because of their age but because of anger and longing. I have never thought about an emotion controlling the actor. I do think that "anger" and "longing" tend to prey on this age because there are so many difficult life changes. This brings and interesting perspective to my normal psychology about people. It's the emotions that sometimes attack the person.
Aristotle goes through his logical analysis for pleasure and ends up saying everything is pleasurable for which there is longing. This makes sense because no one would long for something that they hated. He goes on to describe "in accordance with reason" as longing based on persuasion. I'm sure he would use this idea when talking about speaking in front of an audience but I initially thought this is our current advertising system. We desire things after hearing about them and being persuaded that they will bring us pleasure.
Aristotle describes winning as pleasurable for all (not just those fond of it). When I read this it reminded me of one of my favorite and instant classic movie quotes from "There Will Be Blood," when Daniel Plainview says, "I have a competition inside of me." I think Aristotle knew that not only the Daniel Plainview's of the world believe they have a competition inside of them but everyone has that drive and desire not matter how small or weak it might be.
The interesting history of the word logos bears further study! I recommend the Meno and the Timaeus by Plato.
Logos in Platonic philosophy (and therefore, responded to by Aristotelian philosophy) refers to more than just simple reasoning, the sort of analytic and inductive reasoning we in the post-Enlightenment era engage in.
Logos considers the whole of human reason, including reason itself, that is, the universal organizing principle by which discourse is governed. For Jewish (and later, neoplatonic and Christian) philosophers, this became synonymous with a rational divinity that ordered the cosmos.
Aristotle's reaction is a reaction to the concept of universalizability in Heraclitus and Plato; whereas Aristotle located universals inherent in the substance of the object itself, universals were, for earlier Greeks, things apart, in themselves. By taking logos from the ordering principle of the rational universe and making it instead the law by which thought was governed, Aristotle became an important step along the way to the discoveries of the 19th and 20th centuries in philosophy, and how language, thought and concepts shape the world around us.
Post a Comment