The tension between natural law and history—the theme of this series of lecturesfootnote1—has come down to us, as so many other ideas, from the ancient Greeks. In a most famous passage of his Rhetoric (1373b) Aristotle put it in this way:
Justice and injustice have been defined in reference to laws and persons in two ways. Now there are two kinds of laws, particular and general. By particular laws I mean those established by each people in reference to themselves, which again are divided into written and unwritten; by general laws I mean those based upon nature (κατά Φύσιν). In fact, there is a general idea of just and unjust in accordance with nature, as all men in a manner divine, even if there is neither communication nor agreement between them. This is what Antigone in Sophocles evidently means, when she declares that it is just, though forbidden, to bury Polynices, as being naturally just: ‘For neither today nor yesterday, but from all eternity, these statutes live and no man knoweth whence they came.’footnote2
Let us briefly recall the context of these words. Aristotle is analysing the different parts of rhetoric: deliberative, forensic, epideictic (that is, oratory which deals with praise or blame). The opposition between written particular law, on the one hand, and unwritten general law, on the other, takes place within the section on forensic rhetoric. Aristotle does
Aristotle seems to suggest that what is ‘based upon nature (κατά Φύσιν)’ is unrelated to specific times and places. But some passages of the second book of Rhetoric suggest a different view. Aristotle is examining in detail the different emotions used by the orator to convince his audience. Pity, for intance (1386a):
The persons men pity are those whom they know, provided they are not too closely connected with them; for if they are, they feel the same as if they themselves were likely to suffer.(. . .) The terrible is different from the pitiable (τò γάρ δεινóν έτερον τον ελλεεινον), for it drives out pity, and often serves to produce the opposing feeling. Further, the nearness of the terrible makes men pity. Men also pity those who resemble them in age, character, habits, position, or family; for all such relations make a man more likely to think that their misfortune may befall him as well. For, in general, here also we may conclude that all that men fear in regard to themselves excites their pity when others are the victims. And since sufferings are pitiable when they appear close at hand, while those that are past ten thousand years backwards or forwards, either do not excite pity at all or only in a less degree, because men neither expect the one nor remember the other, it follows that those who contribute to the effect by gestures, voices, dress, and dramatic action generally, are more pitiable; for they make the evil appear close at hand, setting it before our eyes as either future or past. And disasters that have just happened or are soon about to happen excite more pity for the same reason.