The theme of change is crucial in Aristotle’s discussion on the role of the law. His approach is one that he typically adopted when reflecting on legal matters: totally embedded in politics^[2] and “bound up with the historical reality of the polis”^[3]. His exposition unfolds through an examination of questions that have relevance for political theory and debate. He looks at issues that had long been the subject of enquiry in Greek thought though he never becomes systematic in the sense of adopting a “doctrine” or a legal theory^[4]. Like his discussions of the other characteristics that constituted the law – generality, authority, rationality^[5] – Aristotle’s views on the topic of change are characterized by his positive assessment of the law. He sees the law as product of human societies which reveals relative and ever changing configurations^[6]. For Aristotle the law is one of the “products of politics”, which best defines the order of the city^[7] and is itself the source of every constituted political order^[8]. Thus, the theme of change occupies an important place within his discussion in which his aim is to identify and define what causes the polis’ legal order to evolve over time^[9]. Studying legal change means studying the evolution of the politeia^[10]. Every form of change involving the law – whether profound or hardly perceptible, gradual or rapid, written down or not^[11] – is of crucial importance in an enquiry that identifies in discontinuities the seeds of the polis’ historical evolution.

In his assessment of earlier discussions, Aristotle is particularly critical of his predecessor’s theorisations. Any attempt to identify whether he takes a clear stance either in favour or against changing the laws will be fruitless, if the terms of reference are the ones adopted in the past. The abstract question of whether or not the change was useful, the problem of the size of the change – the kind of change that results from reforming the current legal order^[12] or change that adjusts the law to respond to a particular case^[13], or again, the question of changing the law in relation to its circumstances of use (whether written or not).

Aristotle profoundly reconsiders the terms his predecessors used to enunciate or discuss these problems. This is shown, for example, in the Politics (1268b 25-1269a 28) in which he deals with the problem of whether or not a legislative change is useful. Aristotle corrects the traditional formulation, and argues against the notion that legislative change may be either absolutely beneficial or absolutely harmful while introducing concrete instances into the discussion, such as the size of the benefit the change produces^[14]. His detailed enquiry is also filled with real examples about the difference between change understood as a permanent modification of the law and ad hoc adjustments of the law. Here he raises real issues that the polis’ institutional practice must face, such as the question of people to be entrusted with amending or adapting both the laws governing the polis’ public institutions and the laws that regulate individual relationships between citizens^[15].

To change the law or not? Aristotle’s position in the Politics (1268b 25 – 1269a 28) and the aporia of an incorrectly formulated question.

“Some people have wondered whether it is harmful or beneficial for the city to change its ancestral laws in favour of other improvements”^[16]. This is how Aristotle broaches the topic of legal change in Book II of the Politics. Who are these “some people” who wondered about the usefulness of legislative change and who raised the aporia (ἀποροῦσι)? And why is the question posed in terms of an aporia^[17]? Greek political debate and theory had long engaged with the questions of the variability/permanence of ancestral laws^[18], and this might explain why Aristotle’s reference is “vague”^[19]. The theme was at the centre of Athenian political debate in the fifth century as we learn from Thucydides, especially in Book 3 of his work which contains a rhetorical debate about the opposition between immutable laws (nomoi akinetoi) which may be imperfect and flawless laws without authority (nomoi akyroi)^[20]. This problem also appears to have been discussed theoretically^[21]. A fragment of Aristoxenos attributes to the Pythagoreans the theory that advocated the immutability of ancestral laws^[22]. Plato takes up the problem several times in the Statesman (298e-299e) and the Laws(769d-772d), even if – as we shall discuss below – his attitude about legal change is less intransigent and more nuanced than the views attributed to the followers of Pythagoras^[23]. Whether the “some people” Aristotle is referring to were, in fact, the Pythagoreans^[24] and whether Plato was the theoretician he intends to “deal with”^[25] is not easy to establish. There is however no need to seek an interlocutor here. It is likely that Aristotle made a point of introducing the question vaguely because he recognized that, by and large, earlier discussions had posited the problem in dichotomous and abstract terms^[26] in such a way as to leave unresolved the aporia on the usefulness of legal change. Aristotle’s judgment of the question is clear: it makes no sense to assume an absolutely positive or absolutely negative^[27] stance on legal change (and even less so to adopt a middle position^[28]). The question itself needs to be cast in other terms. Whatever improvement is brought by changing the law needs to be reviewed on a case by case basis^[29]. Aristotle considers altering the law to be useful if the benefit “is not small” (1269a 14-15) and this is the case when it proves to be a benefit to the community (1268b 14-15)^[30]. Aristotle does not share the view of those who hold that changing the law is always the best option. On the one hand, it is correct to recognize the advantages of progress in laws (1268b 33 -1269a 8) and the limitations of written laws (1269a 9-13), on the other hand we also need to recognize that altering the laws may not always be the best option. An assessment of legal change will have to be made on a case by case basis according to how beneficial such a change will be. Aristotle was aware that change exposes to hazards. For example, one of its negative effects is a loosening in peoples’ habit of respecting the law (1269a 21-23). And this is why he discusses the topic concretely, refuting the apodictic positions that underlie the ‘the wrong question’ of whether the alteration of the laws is beneficial or harmful for the city. Looking at the real world he asks: which laws might be profitably changed and, above all, by whom (1269a 24-26). As we shall see below, these latter questions were important concerns for Aristotle for a long time^[31].

In order to understand Aristotle’s position on legal change and to recognize the line of reasoning he adopts in this celebrated passage of the Politics, it is worth considering its context. Aristotle introduces the aporia on the usefulness of legislative change immediately after discussing the constitutional project devised by Hippodamus of Miletus (1267b 22-1268b 25)^[32]. Among the various proposals Hippodamus included in his project for the “best constitution”, two are more closely connected with the theme of legislative innovation: the former encourages jurors to alter the law by means of their verdicts by turning themselves into arbitrators with the power to set an amount for damages that may be different from the amount claimed by the injured party (1268b 4-13)^[33]; the latter rewards anyone who has invented something that is beneficial for the community (1268b 22-23). It is especially with regard to this second proposal that Aristotle expresses the view that the suggestion will be “not without danger, if implemented by means of a legal measure” because it could potentially lead to “political upheaval” (1268b 22-25). The main drawback in Hippodamus’ proposal is that it uses a law - general by very definition – to reward any innovation deemed to be useful to the community (1268b 22-24) without at all considering the range of the benefit the legal innovation will bring. In this regard, Aristotle’s assertion that “is not easy to speedily agree to this proposal, unless the change itself doesn’t lead to obvious benefits” is quite understandable. Aristotle, singles out the risk that “someone may propose to abrogate certain laws or the entire constitution for the benefit of the community” (1268b 29-31), and in doing so they will argue that abrogating the laws or the constitution will lead to public benefit, when in reality the resulting advantage may be little or not existing at all^[34]. For this reason he widens the scope of his exposition on the topic of change and observes that it is well worth “adding some further brief considerations on the topic” and that “doubt reigns over the solution to be given to this problem” (1268b 32-33). It is a mistake to promote change to obtain a “small” benefit – which is what Hippodamus’ proposal implies, in that it does not distinguish between large and small advantages”: even change introduced for the sake of small benefits may lead to upheavals in the politeia^[35]. This does not mean that Aristotle is opposed to the possibility of change per se^[36]. On the contrary, Aristotle recognizes that changes may bring large benefits and he convincingly reproduces the arguments advanced by “those to whom it might seem more advantageous to introduce changes” (1268b 33-34). These include arguments based on the progress observed in the sciences and arts as well as in law-making (1268b 34 -1269a 8) which were often put forward by Greek writers such as Thucydides^[37] and Plato in the Statesman and the Laws^[38]. Aristotle acknowledges the cogency of such reasoning as well as the historical evidence supporting it and concludes with the remark that “it is absurd to remain faithful to beliefs of the ancients out of prejudice”^[39]. To these traditional arguments Aristotle adds that “it is not the most beneficial thing to leave written laws unaltered” considering that “also with regard to the political order it is impossible to set all the laws down in every detail because written measures are always expressed in general terms while concrete practices concern individuals” (1269a 8-12)^[40]. To the observation that improvements have been made in written legal codes Aristotle adds the warning of the concrete difficulty involved in implementing laws in everyday life: in acting on the basis of general laws that are not always suited to regulate actual cases^[41]. In this first long section, Aristotle generally recognizes the validity of the arguments against the immutability of legal codes. On the one hand, he asserts that we cannot deny the benefit of progress of norms understood as comprising both written and unwritten laws^[42], on the other, that we must not fail to point out the inherent limitation in any written law: its general nature. Drawing on all these considerations Aristotle states that “the laws, at least some of them and in some cases, need to be changed” (1269a 12-13), however with that “great caution” suggested by those “who view change from another perspective”, in other words, whoever recognizes the risk of adopting easy and lightly considered change (1269a 13-14). Caution advises against “moving easily away from the laws currently in force to new laws” because this movement weakens the authority of the law (1269a 22-25) and leads to a loosening of the politeia.^[43]The solution for those who, like Aristotle, acknowledge the risk of “easy” change is not to reject change outright^[44], but rather to alter laws only if the benefit will be considerable. His idea is to determine, on a ad hoc basis, the size of the benefit to be obtained and, if this is too little, to keep “some of the errors of legislators and governors” (1269a 16-17)^[45].

The advantages and disadvantages brought about by changing the laws should not be assessed in absolute terms but within the context of the actual situation in which the change intervenes, or is proposed. This only becomes clear and measurable when the benefit resulting from that particular change in that particular situation will be either large or small. In any given situation it will therefore be necessary to measure the size of the benefit that the change produces: who and how many will benefit from an alteration in the laws. This kind of methodological approach is “positivist”, as Brunschwig made clear^[46], and it resolves the aporia raised at the beginning^[47]: Aristotle’s solution is that changing the laws is useful ifthe benefit is great.

The expository pattern Aristotle employs in this section of the Politicsis in keeping with the dialectic method he uses elsewhere in his works. His contribution to the theoretical debate is not that he chooses from among positions already expressed about legal change but that he strives to identify the critical issues those earlier viewpoints contained and to correct whatever was mistaken in the traditional approach^[48]. Aristotle proceeds in a similar fashion when in the Nichomachean Ethics he deals with the question of the mutability of natural right^[49]. In that case as well, Aristotle refutes the traditional opinion on the absolute immutability of natural right and reformulates the very question.^[50] Just as he does here in the Politics when he deals with the problem of changing ancestral laws, Aristotle restates a question that had been posed incorrectly by “some” who had formulated it dichotomously^[51]. For Aristotle viewed the initial question to have been made incorrectly, we should not ascribe too much importance to the explicit reference he makes to his predecessors: the first of them mentioned in the section being Hippodamus and those later on, variously identified with either the Pythagoreans^[52] and with Thucydides^[53]. It is, however, worth devoting some attention to his relationship with Plato who, according to some scholars, is the real target of criticism in this passage of the Politics^[54]. Aristotle’s relationship with Plato’s views on the question of legal change has been much discussed. On the one hand, the divergence between the two philosophers is relatively clear when it comes to identifying the agents of general change in the political order (politeia)^[55], on the other hand it is more difficult to highlight the difference about the specific area of legal change. There is no consensus in scholarship on Aristotle’s relationship with Plato’s work, nor have even they been unanimous in their interpretations of Plato’s own views in the Laws and the Statesman^[56]. Plato’s Laws– according to Bertelli – are “riddled with a veritable phobia against change”^[57]. Similarly Saunders identifies in the same work “Plato’s ferocity about the undesirability of change”, a ferocity which he views as “stemming ultimately from a desire to produce a perfect metaphysically based society”^[58]. One must not change the unchangeable (kinein ta akineta. Laws684d-e) – as Bertelli again emphasizes^[59], because “any sort of innovation is dangerous for the State, especially in matters of educational and legal practice”. The “dangerousness of metabole” is high in “every sector of the state apparatus” (Laws 660b) and so what is needed is the “wisdom of the legislator and the power of a tyrant” in order to “control change”^[60]. It is here, according to Bertelli, that Aristotle distances himself from Plato in that he “accepts the possibility of positive change”^[61]. Other scholars, however, claim that in several passages of the Laws and the Statesman Plato viewed legal change as “acceptable”^[62]. According to Camassa, the possibility of correcting the nomoi by the efforts of the nomophylakes, for example, is a sign of Aristotle’s “distance from Plato, in view of the fact that Plato considered it necessary to change positive laws, while Aristotle held that this should only be done if the benefit to be derived was great”^[63]. This is also Pezzoli’s view who has observed that for Plato “the laws need to be changed” when “experience shows that the current general nomos is inadequate”^[64], and that in Plato’s view “changing the laws is not rejected a priori but entrusted sometimes to experts who act for the good, sometimes to magistrates or guardians of the laws who supplement the normative activity of the first legislator”^[65].

The aim of this brief digression is to show that Plato himself, just like Aristotle, admits the usefulness of controlled change, in other words, change that should not be “easy”. The difference is that Plato imagines this control as taking place within the framework of his entirely idealized State^[66], while Aristotle is concerned with institutional practice inside the polis and, thus, he deals with concrete examples. Hence, once Aristotle recognized the usefulness of controlled change^[67], he proceeds to organize his enquiry in such a way as to deal with the different problems involved in the implementation of change and in keeping with this: (1) he distinguishes between change as a permanent alteration of the laws and ad hoc adjustments of the law to respond to particular situations - adaptations that do not require the laws to be altered but can be achieved by other means; (2) he identifies the responsibilities of those who must act in both the first and second cases. These are important questions that significantly affect how Aristotle looks at the role of the law in the functioning of the polis’ public institutions and in regulating the relationships among its citizens^[68].

Controlling legal change in institutional practice within the polis: Aristotle’s views

Controlling change when it has become necessary: this is the main problem Aristotle is concerned with^[69]. Once we have admitted that “laws are open to be changed”, according to Aristotle, there are two concrete aspects that “need to be established”: “whether all the laws should be open to change and in every constitution”^[70] and whether “anyone should be able to introduce changes or just certain people?” (1269a 25-26). The enquiry – which Aristotle leaves “for other occasions (1269a 27-28) – touches essential questions which would be wrong to write off as “rhetorical”^[71]. The topic, in fact, appears to be taken up again in Book III of the Politics when Aristotle again considers the two forms of change the laws may be subject to: the improvement of laws framed in the common interest of the citizens (1283b 35-42) and adaptations of the law which must be made to meet particular situations (1286a 10-31; 1287a 19-28). The idea underlying these considerations is the distinction between permanent change to the laws and ad hoc adjustments to suit particular cases which Aristotle already admitted in Book II in his critical examination of the views expressed by Hippodamus^[72] (and Plato^[73]). In this section, however, these two types of change are now referred to the problem of the institutional figures who are entrusted with controlling it. These are different institutional groups who act – at different levels of the politeia – each with his own set of tools.

In the case of the kind of change which passes for legal reform^[74] control is exercised through the “wisdom” of the legislator^[75]. This is the change that scholars tend to identify as “reform” and describe as a larger scale intervention^[76], even though Aristotle makes no reference to the quantitative aspects of change^[77].

Then there is the control of change brought about by the need to adapt^[78] the written laws. This is the great problem besetting general prescriptions which cannot predict all the individual situations that may arise in praxis and to which the laws will need to be adapted on a case by case basis^[79]. In this second case, the responsibility for controlling change is entrusted to the “many”.

Let us take a closer look at the contents of Aristotle’s enquiry. Change understood as a permanent correction and improvement of the existing legal code – as we have seen examining Book II of the Politics (1268b 26-31) – is admissible when it is undertaken in the name of the common good and when the benefit is great^[80]. For this type of change intervention on the part of the legislator – in Aristotle’s view – is indispensable^[81]. The most explicit statement of this we find in Book III of the Politics where Aristotle asserts that the legislator “must improve the laws” with a view to “what is right in so far as it is equally so” or “what is useful for the entire city and community of citizens” (1283b 35-42). Aristotle’s views on the control of change which the legislator must exercise through his wisdom (phronesis) bear on the issue of the polis’ “salvation” (soteria) and its constitutional stability^[82] and these problems are the backdrop against which the legislator performs his controlling function. It is his task to avoid easy alterations, preserve the existing order and change as little as possible.^[83] The reforming action is, however, judged to be indispensable if the benefit appears to be significant. The legislator must intervene with suitable measures “in order to rectify critical situations in real regimes”^[84]. The value of legislative reforms made in the common interest appears to be recognized by Aristotle when he looks at the history of the polis. For example, in the Athenaion Politeia we have his approval of the reforms made by Athenian legislators. Describing the reforms of the politeia undertaken by Cleisthenes, Aristotle states that Cleisthenes “established new laws that were of benefit to the people” (Ath. Pol. 21.1-6). He expresses the same view with regard to the “equal” laws written for the Athenians by Solon (cfr. Ath. Pol. 12.4) who “saved” the city (Ath. Pol. 6.3). There is no question that Aristotle thought the changes made by both these legislators had benefited the “many” and we ought not to dismiss the extent of their legislative reforms – as described in the Athenaion Politeia – by arguing that sixth century legislators nonetheless strove to keep intact the institutional framework in which these new laws were inserted^[85]. Nor should we underestimate the interaction that existed between the discussion of the problem of legal change and the attention Aristotle devotes to the question of improving deviant regimes^[86]. The point for Aristotle is that the legislator must improve the laws “with a view to what is right insofar as it is equally so” or “what is useful for the entire city and community of citizens” (1283b 38-42)^[87].

It is with this aim that the legislative phronesis must necessarily and dialectically measure itself against the principle of political stability^[88]. The legislator whose task it is to frame laws is therefore the only figure who may intervene to improve them – provided that the improvement is “useful for the entire city”^[89]. The assumption underlying this reasoning is the substantial difference that Aristotle recognizes between framing laws and applying them, in particular the different levels of competence he assigns to the two cases: legislative wisdom – which is the prerogative of the nomothetes – and political wisdom required by the citizens whose task it is to apply the laws^[90]. The theoretical justification for this hierarchy is clear in Aristotle’s works and he expresses himself on this point unequivocally not only in the Politics but also in the Nichomachean Ethics: legislation that concerns the universals is a matter reserved for the few, while the many may act to decide the single cases of the praxis^[91]. Hence, it is no surprise that when enquiring into the problem of legal change, especially with regard to the institutional figures to be empowered with controlling change, he again evokes the same hierarchy. Consequently, he appears to want to exclude the ordinary people from making legal reforms while allowing them to apply the law in particular cases. The action of the sovereign archai intervenes to judge and decide individual cases that the law cannot decide or cannot decide well (Pol. 1287a 19-28; cfr. 1282b 2-10).

Once again Book III of the Politics takes up questions that have already been raised in Book II. Aristotle has already considered of the generality of written laws that must be adapted to meet particular cases (1269a 9-13) he draws the conclusion that “obviously the laws, or at least some of them, in some cases, need to be changed”. Book III discusses this topic with regard to the question of which institutional figures should be entrusted with the task of controlling this “adaptation” (1286a 10-31; 1287a 19-28). Here too Aristotle observes that “laws provide only general indications and do not contain directions for single cases” and “for this reason, admittedly, the best constitution will not be that which adheres to the letter of the law” and the laws cannot be “sovereign in cases that go astray from the norm” (1286a 10-24). Here Aristotle deals with the problem of the responsibility of those who must make decisions and he asks “But in matters in which the law is unable to make any decision or to decide well, should only one man govern or all the citizens?” (1286a 24-25). Aristotle’s solution is not surprising. He cites the example of collective bodies whose decisions always have to do with particular cases and he seems to identify these with the assembly, the council and the courts (1286a 26-28)^[92]. The citizens gathered together in the assembly or the law courts – who have been entrusted with the task of administering the praxis – will have to exercise their control over change in those venues. But how are they to do this? Aristotle explains that their intervention should be reserved for cases in which the law is unable to decide, in other words, in “matters in which the law is unable to make any decision or to decide well” (1286a 24-25), “in cases in which the law is unable to provide a solution” (1287a 24) and on questions on which it is “not possible to legislate” (1287b 22-23)^[93]. The decisions of the many “all regard particular cases” (1286a 27-28) and only in such cases should the many be allowed to decide because “a multitude judges better than a single man by himself (1286a 30-31) who in these cases “cannot decide” (1287a 24-25)^[94].

In this context, the action of the many expresses itself through those “instruments” that are best suited to regulate the particular cases of the praxis: the assembly and the courts.

In the assembly citizens’ political action is expressed through decrees that are different from laws in the strict sense because they are particular while the laws are general. This distinction between laws (nomoi) and decrees (psephismata) – one that recurs in Aristotle’s political works^[95] – is based, as we have already seen, on the “unbridgeable” difference between legislation “which is the task of special persons acting in special circumstances and who perform a job that cannot be and must not be changed” and administration “which is part of the daily affairs of the polis”^[96]. In this sense control over legal change should be understood literally as a check on activities involved in correcting the laws : wherever the law is unable to regulate a particular case, the decree intervenes which, as it is more supple and flexible^[97] than the law, “adapts itself to the facts” (NE 1137 12-33)^[98].

With regard to the courts, Aristotle states that the law delegates to “those who are in charge” (tous archontas) the task of “deciding cases which it does not foresee itself according to the most just opinion” and entrusts “to the judgement of expert persons, the task of improving those laws that would appear to need changing from their current form” (1287a 25-28). Here Aristotle makes no mention of the “most just opinion” – the gnome dikaiotate – in order to illustrate his theoretical reasoning with a concrete example, that of Athens, even if commentators of the passage^[99] rightly draw attention to this phrase in the Heliastic oath. In Athens, in fact, jurors swore that they would “vote in consonance with the law in matters where laws exist and, in matters where they do not exist, by the most just opinion” (Poll. VIII 122. 5-7)^[100]. But the discussion in this section is not about the Heliastic oath. Aristotle’s reference to the “most just” opinion appears to be aimed at closing out his arguments on the question of legal change understood as an ad hoc adaptation, in other words, as a non permanent correction of the letter of the law^[101]. It is precisely in connection with the archai being entrusted with giving a judgement most in consonance with the law that Aristotle goes on to explain his (second) model for improving the laws: when the particular cases are not covered by the general law the judges may decide according to the opinion “most consonant with justice”^[102]. This is what Brunschwig defined as “un modèle pertinent pour comprendre le mécanisme du perfectionnement des lois tel qu’Aristote l’envisage”^[103] and which reveals the “vision aristotélicienne du changement législatif”^[104]. Also in Saunders view, Aristotle may here be “hinting about something crucial for the development of law”: this is the principle that “once laws have been formulated in writing they would need no further change” though “they still need the flexibility of ‘customary’ laws, in that their strict letter will need to be modified when they are applied in particular circumstances”^[105]. This is a way of managing the need to adapt the law to the special cases that arise in the praxis without running the risks of a permanent change^[106] because the correction only acts while it is being applied^[107].

This adaptation allows for the exercise of a “controlled” change of the law and the responsibility for this appears to be assigned to citizens who have been “instructed in the law”^[108] , those who just above (1287a 20) Aristotle identified as the guardians of the law^[109].

Underlying Aristotle’s discussion of this type of change – the ad hocadjustment of laws in cases they cannot decide – are a set of basic principles that characterize his political thinking and which are worth a quick review. The first of these is the idea that a politeia must educate its citizens to conform to its principles and that they should therefore be able to make judgements using good sense (epieikeia), both in cases in which the written law does not apply and in cases, which though covered by the written law, require an exercise of good sense that “goes beyond the written law” (Rhet. 1374a 28-29). In all these cases, an education in keeping with the ethos of the politeia, as well as a knowledge of the polis’ nomoi will allow the citizens to exercise the best faculty of judgment (Rhet. 1365b 21-1366a 21)^[110], that is, to understand the “spirit of the law” even when its formulation is general^[111]. It is in the practical work of coming to terms with the limitations of the law – in other words, dealing with the critical issues that arise because of written law’s generic nature – that defines the space for the exercise of good judgment or gnome which ought to operate according to the principles of the epieikeia (that is, without abusing it)^[112]. As the epieikeia operates in synergy with the law and has the aim of adapting positive law’s universality to particular cases, citizens, through the exercise of their best faculty of judgment, interpret what the legislator did not make clear for a particular circumstance. It is, thus, their judgment that defines the dikaion of the polis (Rhet. 1374a 28 ff.)^[113]. In performing this role, the citizens will also have to consider unwritten laws as the basis for their judgment^[114], provided these laws are in harmony with the politeia^[115] and express the constitutional ethos which the verdict in particular cases will have to respect^[116]. Scholars of Athenian institutions^[117] have been right to consider the possibility that unwritten laws may constitute the basis for the jurors’ judgments and it is this same interaction that Aristotle evokes when discussing the “best judgment” founded on good sense^[118]. It is within this space of interaction between the general nomos to be adapted to particularities and epieikeia, that Aristotle defines the task to be given to the citizenry: to interpret the law and assert with their best judgment the notion of the “politically just” (dikaion). The politically just incorporates the legally just (its essential component), but its scope is broader and it allows for a certain degree of leeway between written and unwritten laws^[119]. Through best judgment – as Aristotle understands it – citizens in court perform the function he assigns to them in matters of legal change. Unlike the improving action of the legislator, who “makes the laws better” with a view to what is good for the entire city, the action of the entire citizenry is aimed at improving the laws whenever their general nature does not regulate particular cases.

In conclusion, how much does Aristotle’s discussion of legal change owe to the Athenian model? Aristotle certainly had in mind fourth century Athenian democracy^[120]. However, he does not refer to the case of Athens as an example when discussing the problem of legal change. In fact, both in the Politics and in the Athenaion Politeia he completely ignores the various ways the fourth century Athenian democracy was dealing with the problem of altering laws.

Nowhere does Aristotle mention the procedure of nomothesia created to give new laws to the city by the nomothetai who were introduced in Athens in 403 after the return of the exiles from Phyle and the Piraeus (Andoc. 1. 80-89)^[121]

Through this procedure, the people formally assumed the power of changing the law and they constituted committees of nomothetai who met – possibly during special sessions of the assembly – in order to decide on the promulgation of new laws, on changing existing laws and on repealing contradictory laws^[122]. Aristotle is also silent about the hierarchic distinction between law (nomos) and decree (psephisma) which was also adopted after 403^[123] just as he fails to say anything about the mechanisms that were set up to protect this distinction and prevent a decree from contradicting a law (graphe paranomon) or one law contradicting an earlier one (graphe nomon me epitedeion theinai)^[124]. Athens is not even clearly named as one of the radical democracies in which “the decrees are sovereign instead of the law” (1292a 4-8)^[125].

This silence is surprising given that Aristotle deals with the theme of legal change precisely in relation to those problems Athenian legal and political institutions were grappling with in the fourth century^[126], the foremost being the distinction between laws and decrees. It is a silence that is all the more problematic when we consider the lengths the Athenians went to in order to make their system efficient as they sought to control “easy” change^[127] and come up with a set of rules that could mediate between recognizing the role of the people in legislative matters and a democratic ideology that insisted on the stability of the nomoi^[128]and the continuity of their fathers’ laws^[129]. So why does Aristotle have nothing to say about the solutions adopted in Athens? The reasons for his silence are still a matter of debate^[130], but some aspects appear to be clear. Aristotle assigns to distinct institutional figures the task of controlling legal change and he speculates about a variety of instruments that could be used to restrain legal change. On the one hand, we have the improving action of the legislator who “makes the laws better” with a view to what is good for the entire city, on the other, the actions of all the citizens, of those who exercise the sovereign archai and whose task it is to decide wherever the law, because of its general nature, does not regulate particularities. According to Aristotle, the legislator must not intervene when the law is too general to suit special circumstances, nor should the civic body be allowed to frame new laws or alter existing ones^[131]. Compared to this model what was going on in Athens was impossibly remote: the fourth-century nomothetai have nothing to do with Aristotle’s “true” nomothetes^[132] and Athenian decision-making bodies – to which the nomothetai belonged – went beyond the task of applying and interpreting the laws. What is most important, the Athenian model must have looked to Aristotle as something definitive which could not be improved. The democracy that was restored in 403 is, in fact, represented as static and unchanged even at the time he was writing the Athenaion Politeia. Aristotle seems not to recognize that this politeia could ever change.

Bibliograpy

Accattino 2013: P. Accattino, Aristótele. La Politica. Commento al libro III, en P. Accattino-M. Curnis (eds.), Aristótele. La Politica. Volumen III (libro III), «L'Erma» di Bretschneider, Roma, 2013, 147-239.

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Notes

Author notes