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Bill Thayer

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Discourse 75

This webpage reproduces one of the

Dio Chrysostom

published in the Loeb Classical Library, 1932

The text is in the public domain.

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Discourses 77‑78

(Vol. V) Dio Chrysostom

 p251  The Seventy-sixth Discourse: On Custom

This is another sophistic exercise. Comparison with the preceding Discourse will show with what ease the sophist could shift his ground. In Or. 75 law is eulogized as a beneficent influence in human affairs; here custom has taken its place. Contradictions between the two documents abound, but perhaps none more striking than the two statements that follow: "from the law there proceeds nothing which is tortuous or ambiguous, but, instead, it puts in simple phrases everything which is appropriate for those who are in need" (Or. 75.4) and "some laws have not been clearly written, and they are often warped and twisted by the eloquence of the orators; but our customs are never ambiguous or crooked, and oratory could not get the upper hand with them" (Or. 76.4).

 p253  The Seventy-sixth Discourse:
On Custom

Custom is a judgement common to those who use it, an unwritten law of tribe or city, a voluntary principle of justice, acceptable to all alike with reference of that same matters, an invention made, not by any human being, but rather by life and time. Therefore, while of the laws in general each obtains its power through having been approved one and for all, custom is constantly being subjected to scrutiny. Moreover, while no law will readily be chosen by everybody — for it is by the opinions of the majority that it is ratified — yet a custom could not come into being if not accepted by all. Again, while law by threats and violence maintains its mastery, it is only when we are persuaded by our customs that we deem them excellent and advantageous.

2 Therefore it seems to me that we might liken the written law to the power of tyranny, for it is by means of fear and through injunction that each measure is made effective; but custom might rather be likened to the benevolence of kingship, for of their own volition all men follow custom, and without constraint. Again, we know of many laws which have been repealed by those who made them, because they judged them to be bad; but no one could  p255 readily point to a custom which had been dissolved. Nay, it is altogether easier to do away with any written ordinance you please than to do away with any custom. 3 For written ordinances, once the writing is erased, are done for in a single day; but a city's usage it is impossible to destroy in a very long period of time. Besides, while laws are preserved on tablets of wood or of stone, each custom is preserved within our own hearts. And this sort of preservation is surer and better. Furthermore, the written law is harsh and stern, whereas nothing is more pleasant than custom. Then too, our laws we learn from others, but our customs we all know perfectly.

4 Again, some laws have not been clearly written, and they are often warped and twisted by the eloquence of the orators; but our customs are never ambiguous or crooked, and oratory could not get the upper hand with them. Also the laws must be kept constantly in mind if we are to abide by them; whereas a custom men cannot forget, even if they would; for such is its nature that it is constantly reminding them.

And, speaking generally, while one might say that the laws create a polity of slaves, our customs, on the contrary, create a polity of free men. For the laws inflict punishment upon men's bodies; but when a custom is violated, the consequent penalty has always been disgrace. Therefore the one is a law for bad persons, the other for good persons. Indeed, if all men were good, evidently we should have no need of the written laws. Furthermore, although our  p257 kings are above the laws and do many things in violation of them, even they follow the customs.

5 Again, of the written laws, not one is in force in time of war, but the customs are observed by all, even if men proceed to the extremity of hatred. For example, the provision that no one shall prevent the burial of the dead has nowhere been put in writing, for how could the victors obey the injunctions of the vanquished? Nay, it is custom which brings it to pass that the departed are granted that act of humanity. It is the same with the provision that no one shall lay hands on heralds, and that they alone enjoy complete security on their missions. Finally, from among those who transgress law, I believe that not one could be shown to have been punished openly by the gods; yet the Spartans, when they had transgressed the custom regarding heralds, having slain the heralds who came from the Great King, were punished by the divine power itself.1

The Loeb Editor's Note:

1 Herodotus tells the tale (7.133‑137). When the heralds came demanding earth and water as tokens of submission to Persia, the Spartans cast them into a well, telling them to get their earth and water there. For a long time afterwards Sparta could not obtain favourable omens, until finally two nobles volunteered to offer themselves to the Great King in expiation of the crime against the sanctity of heralds. The king magnanimously spared their lives.

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