Poetic and Legal Fiction in the Aristotelian Tradition

by Kathy Eden

Overview

When Philip Sidney defends poetry by defending the methods used by poets and lawyers alike, he relies on the traditional association between fiction and legal procedure—an association that begins with Aristotle. In this study Kathy Eden offers a new understanding of this tradition, from its origins in Aristotle's Poetics and De Anima, through its development in the psychological and rhetorical theory of late antiquity and the Middle Ages, to its culmination in the literary theory of the Renaissance.

Originally published in 1986.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691638461
Publisher:	Princeton University Press
Publication date:	04/19/2016
Series:	Princeton Legacy Library , #480
Pages:	210
Product dimensions:	6.20(w) x 9.30(h) x 0.70(d)

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Poetic and Legal Fiction in the Aristotelian Tradition

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By Kathy Eden

PRINCETON UNIVERSITY PRESS

Copyright © 1986 Princeton University Press
All rights reserved.
ISBN: 978-0-691-06697-4

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CHAPTER 1

Legal Proof and Tragic Recognition: The Aristotelian Grounds of Discovery

In recent years, we have begun to rediscover how much the tragic stage and the law courts of fifth- and fourth-century Athens owe to one another. Their shared concern with questions of justice, for instance, is now well documented. So is the fact that both institutions developed at roughly the same time and in the same place, giving historical validity to the intuition that both activities are quintessentially Athenian. The average citizen might be unlucky enough to lack the talent of playwright or actor and lucky enough to keep his affairs in order; but he would still have participated very directly and very regularly in the tragic and legal performance, watching both kinds of contest as spectator and as judge. Even as spectator, moreover, he would not be able to resist making judgments about the artistic quality of the presentation and the ethical quality of the events presented.

Although we are only now beginning to appreciate once again this fundamental rapport between the law court and the tragic stage, the earliest extant discussions of these two Athenian institutions, written at the end of or shortly after the period in question, clearly record the analogies. Plato, for instance, not only recognizes the analogous roles of the legal and theatrical judge, but he aligns more generally the two activities of forensic persuasion and tragic mimesis — an alliance which almost throughout his dialogues ends in joint condemnation. Neither public spectacle, in Plato's view, is capable of leading its audience of spectators and judges to knowledge of the truth. Plato, in fact, finds little to praise in the analogy until his last work, the Laws, where he compares the best legal constitution, as an accurate mimesis of the intentions of the lawgiver, to the finest tragedy.

Following his teacher, Aristotle continues to explore the similarities between tragic mimesis and rhetorical persuasion. His much more positive findings are fully reflected in his Poetics and Rhetoric, the oldest extant systematic discussions of these two related activities. In antiquity, however, and in fact not long after Aristotle's death, the Poetics, with its complex notion of fiction, was overlooked while the Aristotelian principles of rhetorical composition were extended to cover the art of poetry. As scholars have noted, this dominance of rhetorical principles has had far-reaching consequences for the development of Western literature. Both the classical literary tradition and the history of literary theory, including the transmission of the actual text of the Poetics, are incomprehensible apart from the Rhetoric and its tradition.

Even while owing so much to Aristotle, in other words, the rhetorical tradition not only helped to obscure Aristotle's concept of fiction; it seriously distorted the rapport between rhetoric and poetry as Aristotle understood it. That he actually imagined such a rapport is immediately clear from the cross-references in the two manuals, from their overlapping discussions and from the fact that Aristotle often illustrates rhetorical strategies with examples from the plays, the proper focus of the Poetics. Any effort to recover the less obvious but even more fundamental interaction between these two arts, therefore, must return to the Platonic analogy and consider Aristotle's peculiar reassessment of it. Together, the first and second chapters of this study are devoted to such a recovery. While the second will address more generally the rapport between legal and poetic fictions, the first will prepare the way for this discussion by isolating the Aristotelian correspondence between legal and poetic procedures in a single element of tragic structure — the anagnorisis or tragic discovery.

As everyone knows, Aristotle discusses this familiar feature of Attic tragedy in the Poetics; few, however, have paid sufficient attention to the fact that he refers this discussion to his complementary treatment of proof in the Rhetoric. In the singular importance which Aristotle accords to proof, in fact, lies the curious priority of forensic or legal oratory in his manual. On the one hand, Aristotle takes great pains to distinguish his own techne from those of his predecessors on the grounds that his does not treat exclusively the practices of the litigant for winning the favor of judge or jury; by his own report, the Rhetoric addresses the less specialized conventions of the art. Nevertheless, as the oldest of the three branches (at least as far as technique is concerned), forensic oratory, even in Aristotle's treatise, can be seen to lend its procedures to the other two branches — the deliberative and the epideictic. The principles of persuasion which Aristotle extends to all rhetorical discourse, in other words, derive from legal procedure, and more specifically from the practice of presenting proof in court.

Fundamental to legal procedure, the presentation of proof is equally fundamental to tragic structure, and particularly to the scenes of discovery. Generally speaking, these scenes accomplish a change from ignorance to knowledge concerning some crucial aspect of the plot, often involving familial ties. To dramatize this change, moreover, the playwright relies on the very same instruments of proof available to the forensic orator. In addition, some scenes of recognition are better managed than others — constructed, that is, according to better methods. And Aristotle's evaluation of these methods in the Poetics coincides with his evaluation of the means of rhetorical demonstration in the Rhetoric. As we will see, the best and worst methods of dramatic construction coincide with the best and worst means of legal proof.

Although not all of Aristotle's Poetics proved equally influential in subsequent tragic theory, his discussion of anagnorisis or "recognition" enjoyed the status of a poetic law. In spite of the continuity of this influence, however, some parts of the discussion were — and still are — more accessible than others. Whereas there is nothing very enigmatic about Aristotle's definition of anagnorisis as the movement from ignorance to knowledge (Chapter 11), his later classification of the various kinds of recognition in Chapter 16 is more problematic:

The best of all Discoveries, however, is that arising from the incidents themselves (ex auton ton pragmaton), when the great surprise comes about through a probable incident (di'eikoton), like that in the Oedipus of Sophocles; and also in Iphigenia; for it was not improbable that she should wish to have a letter taken home. These last are the only Discoveries independent of the artifice of signs (ton pepoiemenon semeion) and necklaces. Next after them come Discoveries through reasoning (ek sullogismou).

Like much of the Poetics, Aristotle's treatment of tragic discovery is so abbreviated that it is practically incomprehensible without further explanation from his other works. Here as elsewhere in the Poetics, the Rhetoric, sharing its specialized terminology with the art of poetry, provides this explanation.

In his discussion of the instruments of proof in the Rhetoric, Aristotle lists the three kinds of premises or propositions of rhetorical demonstration. They are "infallible signs" (ta tekmeria), "signs" (ta semeia) and "probabilities" (ta eikota) (Rhetoric, 1.3.7 and 2.25.8; cf. Prior Analytics, 2.27). The last two — simple signs and probabilities — correspond precisely to the Poetics' "signs" and "probable incidents," respectively, while the third, the "infallible signs," needs even further clarification from Rhetoric 1.2.17. In this passage (1357b5~7), Aristotle explains the special relation between syllogistic reasoning and infallible signs by defining the latter as "Those on which syllogisms proper may be based." With only the most minor adjustment of terms, then, the means of tragic recognition are seen to coincide with the orator's instruments of proof. In constructing his scenes of discovery, in other words, the dramatist relies on methods equally fundamental to rhetorical persuasion.

The similarity between the instruments of rhetorical proof and those of tragic recognition is, however, even more profound than the coincidence of terms suggests. But this further similarity lies hidden beneath an apparent difference. Whereas in the Rhetoric Aristotle seems simply to list the proofs available to the orator, in the Poetics he closes his remarks on anagnorisis by summarizing the types of recognition, discussed throughout this chapter, according to their artistic superiority (see quotation, above). Preferring, in descending order of merit, first probabilities, then reasoning based on infallible signs and finally, signs or tokens, Aristotle refers, earlier in the chapter, to the less and least successful methods as atechnoteroi and atechnotatoi, the comparative and superlative of atechnos (16.1-6). Although in its unspecialized sense atechnos is fairly translated inartistic, it has throughout the Rhetoric a more specialized meaning which can be seen to bear directly on Aristotle's discussion of recognition in tragedy.

Early in the Rhetoric, Aristotle distinguishes between two kinds of proof (pisteis): one is entechnos or artificial and belongs properly to the art of rhetoric; the other is atechnos or inartificial and is not properly part of the rhetorical art. The inartificial proofs (atechnoi pisteis), according to Aristotle, include witness testimony, slave testimony extracted under torture, oaths, laws, oracles, written documents, and so on. The artificial proofs (entechnoi pisteis), in contrast, are divided into ethos, pathos, and logos, and include the various strategies and arguments which the orator must invent based on the facts of the case.4 The speaker's chief strategy lies in his establishing his own good character (1.2.4-5), while most of his arguments rely on probability. Although Aristotle, in opposition to his predecessors, laments the overwhelming popularity of legal or forensic oratory at the expense of the other branches (I.I.II), his emphasis on probability, his division of proofs into artificial and inartificial, and even his actual list of inartificial proofs derive from the procedures of a legal trial in fifth-and fourth-century Athens.

A public spectacle, the Athenian trial in turn owes its peculiar shape to the adversarial nature of Athenian legal procedure: two litigants before a judge or judges, each responsible for his own cause and encouraged to present for consideration whatever legitimately supports his claim. To this end, each party tells the events from his own point of view in either one or two speeches. Throughout antiquity, orators and teachers of rhetoric, including Aristotle, paid careful attention to these speeches, the rheseis or logoi. Although they eventually succumbed to stylization, as illustrated by the pedagogical manuals, these logoi included originally a statement of the facts with the appropriate color (chroma) for the speaker's cause/

In addition to presenting his case in a longer speech, the litigant could also question his opponent and his opponent's witnesses — an interrogation known in the manuals as "question (erotesis) and answer (apokrisis)." In this way the litigant could refute (elencbein) the claims of his opponent and of his opponent's witnesses. Otherwise, he might include the refutation in his longer speech. And, finally, the litigant could both support his claim and refute his opponent's claims with various kinds of evidence, Aristotle's inartificial proofs. Among these, witness testimony, presented in person and orally throughout the fifth century, was the most common form of corroborating evidence. It might pertain to the facts of the case (peri tou pragmatos) or to the character of either litigant (peri tou ethous) (Rhetoric, 1.15.18). All testimony, moreover, could be further verified by an oath. A speaker's refusing to take the oath, on the other hand, could be used by an opponent to refute the speaker's evidence (Rhetoric, 1.15.27 ff.).

Although it remains a matter of some controversy whether or not litigants presented in court real or demonstrative evidence — defined as evidence "addressed directly to the senses of the jury without the intervention of the testimony of witnesses, as where various things are exhibited in court" — it seems quite unlikely that the Athenian, unhampered by exclusionary rules, would overlook such an effective means of persuasion. In his instructions to the orator on arousing the emotions and, in particular, pity (2.8.16), Aristotle, in fact, takes account of the enormous psychagogic power of objects (semeia), such as the clothing of the victim, exhibited directly before the eyes of the jury (pro ommaton, en ophthalmois).

In addition to the support offered by Aristotelian comic theory, the plays themselves which fall under Aristotle's inquiry in the Poetics demonstrate the significance of these atechnoi pisteis for Greek tragedy. Whether or not these plays include an anagnorisis in the formal Aristotelian sense, many of them nevertheless include the presentation and confirmation of proof, to which they often refer with the technical language of the courts, such as tekmerion, martus, and pistis.

In Aeschylus' Persians, for instance — the earliest extant tragedy and one without a formal scene of discovery — Atossa's dream and omen (176 ff.), the messenger's eyewitness testimony (254 ff.), Darius' oracles (739 ff.), and finally Xerxes' entrance on stage (908 ff.) provide increasingly reliable atechnic proof that the Persian army has been defeated. Displaying his torn cloak and empty quiver (1017-23), Xerxes even puts into dramatic practice, as it were, Aristotle's advice to the orator for engaging his audience's pity (quoted above).

Similarly, the Agamemnon begins with the appearance of the beacon, whose confirmation as proof (tekmerion, 272, 315, 3 5 2) of Greek victory occupies our attention during much of the first half of the play. Clytemnestra's testimony to the Chorus on the reliability of this evidence (272 ff.) is confirmed first by the messenger's eyewitness account of the fall of Troy (518 ff.) and then, recalling the Persians, by the king's entrance on stage (788 ff.). In the play's second half, Cassandra's prophetic testimony concerning the king's murder (1089 ff.) — an eyewitness account even though the witnessing eye sees the future as well as the past with divinely inspired vision instead of physical sight — finds confirmation in Clytemnestra's confession in flagrante delicto (1372 ff.). When Electra recognizes Orestes in the Choepboroi (168 ff.), moreover, she relies for proof of his identity on the physical evidence — the lock of hair, the footprint, and the piece of cloth.

In the two later versions of this famous recognition, both Sophocles and Euripides preserve the Aeschylean atechnoi pisteis while drastically altering their status. On the one hand, Sophocles' Electra rejects her sister's eyewitness account of the proof on Agamemnon's tomb in favor of the Paedagogos' false testimony to Orestes' death (Electra, 877 ff.). When faced with contradictory evidence, in other words, this Electra believes the lie. Euripides' Electra, on the other hand, dismisses the servant's eyewitness account of the proof on the tomb in favor of her own disqualifying syllogisms, rejecting, as it were, the palpable proof for logic (Electra, 508 ff.).

In spite of his awareness of the power of demonstrative evidence both in the law court and on the dramatic stage, Aristotle too gives priority to rational argument over physical proof. He begins the Rhetoric by rejecting the older methods advanced by his predecessors — methods which rely almost exclusively on manipulating the emotions of judge and jury. His own manual, he maintains, surpasses these precisely because he concentrates on the artificial proofs and, in particular, on the construction of the enthymemes which make the practitioner a master of his art (1.1.3-n). These enthymemes, in turn, depend on the logic of probability, which Aristotle elevates from a convention of forensic pleading to an indispensable instrument of the science of ethics (Rhetoric, 1.2, 1357322-31):

There are few facts of the "necessary" type that can form the basis of rhetorical syllogisms. Most of the things about which we make decisions, and into which therefore we inquire, present us with alternative possibilities. For it is about our actions that we deliberate and inquire, and all our actions have a contingent character; hardly any of them are determined by necessity. Again, conclusions that state what is merely usual or possible must be drawn from premisses that do the same, just as "necessary" conclusions must be drawn from "necessary" premisses; this too is clear to us from the Analytics. It is evident, therefore, that the propositions forming the basis of enthymemes, though some of them may be "necessary," will most of them be only usually true.

(Continues...)

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Excerpted from Poetic and Legal Fiction in the Aristotelian Tradition by Kathy Eden. Copyright © 1986 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• FrontMatter, pg. i
• Contents, pg. vii
• Acknowledgments, pg. ix
• Introduction, pg. 1
• One. Legal Proof and Tragic Recognition: The Aristotelian Grounds of Discovery, pg. 7
• Two. Poetry and Equity: Aristotle's Defense of Fiction, pg. 25
• Three. Rhetoric and Psychology: The Aristotelian Foundations of the Poetic Image, pg. 62
• Four. Image and Imitation: Aristotle's Contribution to a Christian Literary Theory, pg. 112
• Appendix. Hamlet and the Reaches of Aristotelian Tragedy, pg. 176
• Index, pg. 185