by Ned Curthoys
© all rights reserved
I write this essay partly in response to Ivor Indyk’s valuable contribution to a recent issue of Australian Humanities Review, The Critic and the Public Culture: for example, Walter Benjamin. Indyk talks of the growing corporatisation of the university, of the managerialist assault on the academic as public intellectual. He reproaches the corporate university’s desire for internally authorised (‘institutionally appropriate’) specialist output and large-scale grant-driven projects, limiting the capacity of the publicly motivated critic to write for the occasion, deploying polymorphous critical media (essays, reviews, newspaper and magazine articles, television appearances) to intervene in topical issues of the day. Indyk touches on some crucial themes.
At stake in the current crisis of the university is a loss of competency in public genres, as well as the critical flexibility and alertness, the skills of address which make for a ‘readiness to comment’ on issues of the day. Indyk laments the impending loss of an Australian tradition of public critics including James McCauley, A.D. Hope, and A.A. Phillips, literary critics and practitioners of reading who wrote from a ‘broad base’ of public and political involvement.
Salutary concerns linger here:
- the increasing gap between academic work and the wider culture which even the modish emergence of cultural studies does not seem to be healing;
- the loss of a ‘prompt’ language of intervention and critique that encourages multiple forms of discourse and address;
- the attenuation of public interest and cultural intimacy in academic work, provoking a dire lack of imaginative range and suppleness of tone in critical writing;
- and the reduction of scholarly work to an intra mural discussion devoid of social implications and the prospect of academic work as another remote professional field degraded by positivist assertions, monumentalist self-importance, and sectarian affects.
Attempting to redress this discursive quandary and remotivate critical discourse, Indyk looks to an intellectual of meta-critical importance, Walter Benjamin. An exemplar of public intellectual energy, Benjamin earns plaudits for his capacity to unite interventionist activity (the local, occasional and exigent) and theoretical writing (the pedagogical and transhistorically illuminating). Benjamin the pithy essayist indicates the insufficiency of empirical assertion or specialist opinion in the social life of thought, calling for greater critical familiarity with the popular culture of the streets and the marketplace. It is Benjamin the theorist of a critical ethos who can illuminate a greater delicacy of tone and address, discussing affective dispositions, critical politeness, tact, and alterness to the extremes and comic absurdities of social phenomena.
Indyk’s dialectically nuanced reading of the ‘performative’ or meta-critically exemplary Benjamin stresses some crucial points missing in those slightly lugubrious rehearsals of his thinking that I’m familiar with: his sociable, hermeneutic commitment to imaginative sympathies with cultures past and present, reciprocal with a formalist/theoretical grasp of discursive genres and their usefulness as media and forms of conversational exchange. A much feared and derided term, ‘theory’, in Indyk’s version of Benjamin is a primarilysociable capacity to remark and codify genres and cultural competencies, those communicative energies and disseminating publicities that can improve and broaden the possibilities of discourse as a contemporary mode of public-sphere intervention. By ‘publicity’, I mean a broad, reflexive mode of communication or address seeking sociable dissemination and diverse citation in public conversations, as opposed to a single-minded truth-assertion or empirical correction.
In the last few years in Australia, much of the ‘theoretical’ concern about foundationalism, positivism, and disciplinary rigidity in history, philosophy, and literary studies has articulated fears about the opacity, narrowness, and homogeneity of critical writing, its failure to impact on our cultural imagination. In a recent issue of The Australian Review of Books, Meaghan Morris queries the accelerating dominance of refereed journals in the humanities. Morris fears that the trend towards disciplinary specialisation and peer legitimation may in practice exclude eclectic interdisciplinary and speculative pieces and the broader audiences they aim for.
The concern for maintaining open channels of communication between the academy and the wider culture has also influenced recent historiographical thinking in Australia. The mainly antipodean produced Oxford Companion to the Romantic Age, edited by Iain McCalman, argues in revisionist terms that British Romanticism needs to be recontextualised as a phenomenon of ‘urbane enthusiasm’. Opposed to the formalist model of a rural, quietistic, and introspective Wordsworthian Romanticism, the Companion points to a period of fertile interactions, arguing that Romantic practitioners were often ‘overtly political, public, and satirical’.1
Inga Clendinnen has written of the need to improve on the stolid yet uninspiring quality of historians’ writings, to think of historical discourse as an extension of our ‘imaginative capabilities’; a genre that can, in Richard Rorty’s terms, enlarge our cultural conversation in tandem with other media publicities, the novel, the docudrama, the satirical comic, the investigative journalist’s report.2 Clendinnen’s imaginative historiography suggests that academics do need to think of their critical writing as a genre or species of address that can interact with other diverse modes of knowledge-production, aesthetic stimulus, and imaginative sympathy without foregoing the rigours of research and empirical verisimilitude.
In Collective Imaginings: Spinoza, Past and Present (1999) Moira Gatens and Genevieve Lloyd rethink Spinoza as a philosopher who inquired into the relationship between thought, imagination, embodiment, and social context.3 In Gatens and Lloyd’s portrayal, Spinoza, far from divorcing cognitive ‘rationality’ from imagination, affect, and bodily disposition, is a theorist of sociability. For Spinoza, thought, ideas themselves, emanate from a salutary social context, where bodies interact in free and lively ways, and a cosmopolitan ethos supports cultural and intellectual pluralism. Rationalism as the positive recognition of virtue and the capacity to judge fairly is an affirmative, constructive approach to thinking that is stimulated by egalitarian conditions and intensive sociabilities.
For Spinoza, the superstition, fear and self-abnegation produced by institutionalised theology was the consequence of authoritarianism and hierarchy in social relations, enacting negative and punitive publicities that further eroded human freedom and possibility. The rationalism of the individual in a liberal, secular state is therefore borne of trusting social exchanges, multiple pedagogies and lines of influence and their more diversified and open-ended communications. William Connolly and Chantal Mouffe have pushed this Spinozist concern for affective disposition into the realm of political theory in the last decade, calling for less dogmatism and greater pluralism or ‘agonistic respect’ in political thinking, as well as historically interrogating the transcendental theologies which still underly the political orientations of the left and right.4
While issuing from local contexts and disciplinary concerns, these approaches owe much to the French philosopher Gilles Deleuze’s post-Nietzschean idea that thought needs to reconcile itself to being a rhetoric, in the sense that ideas gain quality and force from a healthy context of interaction, discussion, and debate to which they are indebted and should seek to contribute; that as a mode of address and communication, argument can either enhance or denigrate sociable engagements depeding on its medium and the publicities it generates, that is, whether it dogmatises and personalises debate or affirms plural perspectives and constructive engagements. Later I shall attempt to historically reconstitute rhetoric as a theory of the irreducible relationship between thought and its sociable context, its emphasis on modes of interaction rather than punitive epistemic and moral essentialisms.
In an adventurous work entitled What is Philosophy (1991), Deleuze and Guattari argue that every mode of thinking, every school of thought, needs to account for the ‘plane of immanence’ upon which it operates.5 The term suggests that conceptual thinking needs to retain a multifarious ‘sense’ of what it is doing, the kinds of problems it addresses and the cultural context it seeks to influence and is influenced by. The plane of immanence is the complex ongoing conversation, the dilemma, the received history of fraught questions that one intuitively recognises as a formative background for one’s own critical enunciations. In other words, the plane of immanence is the admission that thought is not simply a contemplative relation to a secure object of knowledge, nor a solution to a problem, but rather an affirmation of all that is problematic and historically negotiated. As an historically inflected thinking, the plane of immanence turns one’s focus towards the cultural competency required for addressing a set of issues and the historically productive conditions of transformative thinking.
On this plane of immanence, one might argue, critical neutrality and innocent objectivity are to be queried as a particularly dubious ethos or ‘critical persona’ in Deleuze and Guattari’s terms. If one seeks out not merely the belief but, in rhetorical terms, the ‘persona’ adopted by the speaker, it is because all ideologies usually betray a mode of existence, a richness or impoverishment of experiences that determines their openness towards plurality and difference.6 I example Graham Greene’s extra-ordinarily prescient novel The Quiet American, published in 1955, which allegorically interrogates the dangerous fanaticism of an ideology and value-system that takes itself as innocent and well-meaning. The novel foregrounds the figure of Pyle, who complacently regards ethics as a matter of intention and goodwill, consistently denying that his actions have any significance beyond what he intends. Pyle provides a stark contrast to the louche, world-weary, knowingly self-deluded, and relativist figure of the ethically bankrupt Old World, the English Fowler, ironically overpowered by the terrifying naivete of American self-righteousness. The Quiet American indicates with a frightening predictive power, and I talk here of the American intervention in Vietnam, that the stage of history is not simply an encounter of pure ideologies or core values, but a battle of personae or cultural sensibilities, those mysterious forces and wills to power that defy rational reflection as much as they influence the trajectories of our thinking and cultural legacies.
This recent concern with the sociable and ‘sensible’ dimension of scholarly discourse and ideological positioning suggests the need for a meta-critical vantage point from which to assess the communicative genres and affective publicities that circulate, swirl around, and disseminate cultural dispositions in contemporary cultural discussions and intellectual debates. I suggest that throughout the history of the West, rhetoric as a meta-disciplinary approach to discourse has continued to insist on the immanent possibilities of discourse as a social skill and communicative art, challenging academic pedantry and esoteric specialisation. The historical version of rhetoric I’d like to illuminate assumes discursive approaches and argumentative methods performatively suited to a critically demanding, pluralistic civil society. If rhetoric has fallen into disrepute, it is not because it lacks an epistemology or an ethics, but because its favouring of sociable immanence over transcendental or universal knowledge challenges powerful positivist assumptions that have arisen since the nineteenth century. The conditions of thought and enunciation that rhetoric proposes are irreducibly worldly, inclined towards the primacy of discursive conversation and cultural pluralism as critical objectives.
Since rhetoric is still associated with persuasive cunning in the present cultural imaginary, I’d like to present a manifesto on rhetoric which stresses its strengths as a necessary dimension of critical thinking, a cultural knowledge and social sense which we can no longer afford to do without. If manifestos are somewhat rare in this age of postmodern cynicism and professionalised academic humility, I would stress that as a performative ‘publicity’ the manifesto has the capacity to call attention to a crisis, and to argue with polemical energy and joyful insouciance for a renewal of scholarly focus.
The Sophists and Pluralism: logos and ethos
I begin my account of rhetoric’s preferred plane of immanence with the first recognised proponents of rhetoric as an educational, theoretical, and practical ideal, the Sophists of 5th century BC Greece, who offered their knowledge of communicative practices for a commercial fee in what is now known as the Athenian golden age of the arts and sciences. In my own research I have been tracing the emergence of rhetoric in the age of the Sophists as a civic art, less concerned with idealist assertion or metaphysical systems ( pace their contemporaries Plato and Aristotle) than with monitoring the social effects of discourse, the public relevance of thought, and the imaginative, interactive possibilities of intellectual genres. I suggest that the documented approach of the first generation of itinerant Sophists, Protagoras of Abdera, Gorgias of Leontini, Prodicus of Ceos, and Hippias of Elias, indicates subtle concerns about specialised languages which create an authoritarian, and hierarchical disposition attenuating the constructive possibilities of social exchange.
Hence early Sophists like Protagoras argue that unlike the technical arts (techné), the language of political discussion and moral values are accessible to all, they cannot be ontologically grounded. For the Sophists, utterances on matters of public importance need to be emancipated from didacticism or legal stricture and understood as sociably effective, with complex cognitive and emotional effects on the public sphere of belief, opinion, and discursive exchange- it is not just what you argue but how- in other words a more pluralistic and humane sensibility needs to be crafted, a democratic imaginary community engendered.
The particular argumentative methods inaugurated by the ancient Greek Sophists, and here I talk of the historically famous or infamous personality of Protagoras (‘man is the measure of all things’) cultivates the idea of dissoi-logoi. This enigmatic proposition suggests that there are at least two arguments (logos) to be put forward on any issue, that any thesis, any idea, is inherently contestable. Subject to endless invective by essentialist philosophies beginning with Plato, I would suggest that the ‘immanent’ point of dissoi-logoi inheres in the invaluable recognition that rational communication is infinitely complicated and deferred by differences of cultural experience, personal and political agendas, and, of course, the stubborn dispositions of sensibilities. Dissoi-logoi is the guarantee of an immanent context which respects difference, a theoretical sanctioning of cultural pluralism that paralleled the democratic constitutions that Sophists such as Gorgias helped to draft for the pro-Athenian Greek colonies. The Sophistic meta-language of ideas should not be confused with a universalising epistemological proposition, it is praxis become theory, the affirmation of a particular cultural moment, that of the first, albeit limited, democratic experiment in Western history.
The early Sophists were also well known for encouraging their pupils to controversialise, to argue on either side of a topical issue such as budgetary expenditures or perennial themes such as, for example, the compatibility of intellectual life and erotic relations. Believing that critical temperaments would need to be cultivated in synergy with the new democratic culture of political discussion and adversarial law, the Sophistic exercises educated the pupil in both self-constraint and critical imagination, that is, the capacity to innovate on discursive techniques and familiar themes- Sophistry recognises the sociably effective and inventive efforts needed, in an agonistic or competitive culture, to overcome the discursive power of one’s adversary in the assembly, the court, or the musical or dramatic festival.
Gorgias, the other great Sophist of the first generation, switches the Protagorean focus on the principle of sociable plurality, to the importance of an audience receptive to the power of illusion, and the sublime power of aesthetic beauty. The twin immanent poles of dissoi logoi and performative enchantment, logos and ethos, establish a plane of immanence which requires the two pillars of a critical rhetoric, a thematically cultivated and technically innovative argumentative capacity (logos) and an ‘ethos’ or communicative persona imbued with transformative aesthetic powers and emotional sympathy. In Deleuze and Guattari’s terms, logos and ethos are not isolated rhetorical capacities for persuasion, but ‘immanent’ responses to a civil-society moving beyond moral traditionalism, aristocratic hierarchies, and punitively legalistic ethical frameworks.
The great Roman orator and politician, Cicero, was both a practitioner of rhetoric in his political life and legal advocacy and a theorist of its importance for a robust, participatory public sphere. His work is valuable for merging the practical and theoretical, attempting to lend the orator or rhetor an enduring importance as a critical ‘persona’, an ideal of intellectual comportment. A famously successful advocate, Cicero helped to create the persona of the defence advocate who takes on and wins cases against impossible odds – the maverick, the trickster who exists within and yet often defies the punitive constrictions of state institutions; the orator as a masterful illusionist whose inventiveness, guile, and forceful persuasiveness have more than a touch of a magical and metamorphic power- such a chameolonic persona, imbued with inventive reasoning and performative capacities for transformation, not only survives but flourishes in our popular culture.
Here I think of television dramas like L.A. Law and movies such as Primal Fear with Richard Gere, that explore this ambiguous figure as cunningly opportunistic yet sometimes rendered foolish and vulnerable because of his or her liminal situation between public sympathies and professional restraint, always pushing at the boundaries of jurisprudence.
What Cicero achieved in theoretical works like De Oratore (‘On Oratory and Orators’), I would argue, is the construction of an immanent plane of relational possibilities, codifying a mode of intellectual conduct, an ethos, which formalised and theoretically developed his experience as a resourceful advocate and successful communicator.7 According to Cicero, the rhetor should be liberally endowed with a broad cultural-capital and psychological acumen, a respectful acquaintance with the different socio-economic conditions, ages, experiences, and aspirations of a plural society. One’s performative ethos must project wit, emotional sympathy and a keen awareness of the significance of changing affective circumstances, such as whether one’s audience is becoming bored or satiated.8
One’s immanent plane, one’s acknowledged condition of enunciation, is not a realm of pure ideas or logical propositions to be forced through at all costs. It is relational, the supple negotiation of differing opinions in the search for probabilities and pragmatic/inclusive outcomes – so that the rhetor’s elective ambience is not a decontextualised conceptual realm but the momentary give and take of a controversy, the critical temporality of a dilemma or crisis of value. Because the rhetor combines a sympathetic audience awareness with an inventive conceptual language, s/he is firmly opposed to any kind of juridicial closure of the process of legal, political, or ethical debate. This is because classical rhetoric, borne of the experiences of anti-traditionalist itinerants and inventive advocates is immanently motivated by the need for new perspectives and explorations.
Let’s explore the rhetorical commitment to cognitive pluralism in more concrete terms. In his Topica or ‘Topics’, Cicero suggests that any orator acquainted with copious means of inventing arguments, will recognise the law in polylogical terms, as partly a matter of current statutes, partly a broader question of equity and natural law, and partly a recognition of time-honoured customs. All these facets of justice will exist in a productive structural tension with each other. Cicero’s extensive legal practice as a defence advocate lends itself to this kind of pragmatic/historical sensitivity, a contextually nuanced denunciation of narrow legalism- the idealistic belief that legal inquiry is simply a search for truth or a judgement based on knowable principles.9
Rather, this theoretically astute understanding of the law is shaped immanently, through adversarial practice. It is an arena in which the force of an advocate’s ethos and the mise en scene of characters and psychologies s/he narrativises and dramatises will continue to motivate judicial decisions and shape public understanding of legal principles. A rhetorical ethos of cultural familiarity and flexibility combined with an inventive argumentative capacity, contrary to its more banal critiques, creates an alternative vision of justice itself as the immanent effect of a broad panorama of argumentative initiations and discursive personae possessing the performative capacity to overturn tired paradigms. Cicero might agree with Deleuze in Nietzsche and Philosophy (1962) that we get the truths we deserve depending on the sense of how we conceive it, hence the possibility of new truths as the effect of more nuanced sociabilities, and of more flexible legal paradigms as the outcome of an pragmatic, interactive conception of jurisprudence.10
Continuing with this genealogy of critical rhetoric, I would argue that Nietzsche’s desire to ‘remotivate’ scholarship as a player in a broad public conversation, and his concept of intellectual comportment as balancing erudite self-restriction and inventive power, indicates his commitment to a reinvention of rhetorical knowledges and skills. In his essay on The Uses and Disadvantages of History for Life, Nietzsche fires some broadsides at nineteenth-century scholarship, in particular its historiography.11 Lamenting the pedantic empiricism and universalist assertions of nineteenth-century German historical scholarship, Nietzsche calls for a ‘critical’ history that can translate historical knowledge into present-minded struggles for social transformation. Nietzsche suggests the need for a broadening of the historiographical base, requiring an informing sensibility of need and urgency. Historicism would need to reflexively recognise its critical medium as sometimes rescuing past achievements in monumentalist terms, yet as often needing to destroy the outmoded detritus of tradition by a vivisectory or genealogical ‘critical history’, as in his later Genealogy of Morals.
It’s not only the uncritical worship of historical institutions and the narrow empirical methodologies of nineteenth century historicism that Nietzsche repudiates . He felt that in their cultural assertiveness more generally, their Kultur, the Germans lacked a stylistic medium. Without communicative interdependency, the mutual recognition of different critical roles, the Germans lose themselves in interiority, a signal failure to enhance public exchange through rich cultural forms. In German cultural exchange, there is a critical absence ofpolitesse. Reversing the familiar Francophobic trope decrying mannerism and affectation, Nietzsche the rhetor denounces the German incapability to collaborate around the familiar, to compose inspired variations on ‘commonplace themes’ and ‘everyday melodies’.12
Nietzsche particularly desires the affirmation of difference attentuated by nationalist identity politics. He imagines a public-sphere so joyous in its agonistic respect, that even that which opposes one is recognised as a necessary ‘type’ in the enchanting formal variety of life. In Twilight of the Idols, Nietzsche talks of a performative mode of critical respect, where, in the immanent drama of existence, one valorises the proximity of those who disgust one: the prig, the priest, the hypocritically virtuous.13 All these are necessary cultural figures for the sociable critic, personae who animate and extend one’s thinking even in revulsion. Here, enmity itself is made spiritual, difference demanded. Criticism never moves in a realm of pure concepts, it instinctively opposes itself to sensibilities it considers insidious or mundane, and its intuitions owe everything to this differential element. In his lectures on rhetoric given at the University of Basel in 1872-3, Nietzsche talks of rhetorical methods in controversy and perspective in just these terms, as a republican art and a civic sensibility that encourage unusual opinions, and a pleasure in their counterplay.14 For Nietzsche, reviving classical rhetoric offered the prospect of an affirmative embrace of difference in an age when the storm-clouds of fascist politics were brewing.
Nietzsche harks back to a pre-Judeo-Christian classical antiquity and the 5th-century Athenian polis in particular to construct his own historically contextualised plane of immanence. In a posthumously published paper entitled ‘Homer’s Contest’, Nietzsche links the flourishing of classical rhetoric as a powerful pedagogical tradition to polytheistic theology. Nietzsche felt rhetoric could only emerge in a culture that valorised perpetual competition in all fields of endeavour. Nietzsche felt that rhetoric’s embrace of multiple perspectives emerged from an ancient Greek culture which lent cultural legitimacy and the power of sacred personification to naturalistic desires, erotic, antagonistic, envious (as both productive rivalry and ruinous discord), and the joys and pitfalls of genuine communication represented by the trickster figure of communication, Hermes .15 For Nietzsche, in its mythology as well as its oratory, Greek antiquity worked at recognising ambivalent cultural personae and affective states, whereas the monotheistic rigidity and disambiguating moral essentialisms of the Judeo-Christian era was given the positivistic ‘truths’ it deserved. In his celebration of the sociably sympathetic condition of genuine communication and intellectual comportment, Nietzsche theorises a cultured, discursive ‘completion’ of the concept as a public-intellectual task.16
Following Nietzsche, I would argue that Walter Benjamin renews a rhetorical emphasis on mood, tone and discursive variation as important elements of philosophical discourse. In the prologue to his habilitation thesis, Ursprung des Deutschen Trauerspiels (1923) Benjamin suggests that the repetitive or reflexive rhythm of prose writing that causes one to pause and reflect is preferable to idealistic enthusiasm.17 Such an essayistic method, related to the overlapping, repetitive style of the Protestant sermon, must not be merely descriptive but allow the comparative perspectives and worldly frames of metaphor and the ‘interested’ shapings of artistic representation more generally- ‘method is a digression’, an art of interruption in contrast to a chain of deduction.18 Philosophy for Benjamin is not a matter of a hasty empiricism, but an avowed ‘redemption’ of phenomena through mediating forms or ideas. Inherently linguistic, criticism is a ‘struggle’ lending social inflection to a limited number of words and names; a battle, immanent to one’s society, to influence the politics of naming and the future directions of intellectual and cultural capital.19 Benjamin talks of the insufficiency of shallow universalism in regard to the use of concepts, one should keep coming back and giving one’s language new contexts of application.
Like Nietzsche, Benjamin’s immanent account of criticism needs not only the rhetorically deliberate account of thought as an acculturated exercise in perspective, it requires conceptual personae appropriate to the epoch; in Benjamin’s case, an urbanised, capitalist modernity. In his work on Baudelaire, Benjamin creates characters that are paradoxically immersed in the world, distanced from it, and yet appropriate to its mad and threatening energy. I’m thinking of the street-savvy flaneur who critiques and yet indulges in commodity fetishism, the melancholic collector capable of redeeming cultural detritus and constructing a marginalised historical genealogy. In his essay on the Paris commune, Benjamin praises the figure of the anarchist as a spur to an uncompromising provocation to state power, and he talks in similarly appreciative terms about the cultivated onieric derangement of the Surrealist who sees and thinks differently. All these conceptual personae assert different roles in the pluralised socius of modernity.
The value of rhetoric as a meta-critical perspective resides in its care for cultural plurality, its modest, pragmatic willingness to recognise irreconcilable cultural personae, critical genres, and affective stimuli as elements of a cultured understanding. Interrogating social media, rhetoric enables us to ask questions about the state of political discussion and public-sphere conversation, to critique the discursive quality of historical understanding and the preoccupations of media representation. At a time when, in Australia, we are continually seeing the effects of the Coalition government’s assault on the independent university in terms of an attenuation of the relevance of a broadly motivated humanistic education, it is crucial to retain a sense of rhetoric’s exuberant and imaginative public-intellectual legacy.
Ned Curthoys is a PhD candidate at the University of Sydney. He is researching the influence of classical rhetoric on literary theory and intellectual history, with particular reference to the work of Friedrich Nietzsche, Walter Benjamin, and Hannah Arendt.
4 For a further development of the importance of cultural pluralism to political discourse, see William Connolly, Why I am Not a Secularist, University of Minnesota Press, Minneapolis, 1999; Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics, Verso, London, 1985.
5 Gilles Deleuze and Felix Guattari, What is Philosophy?, Verso, London, 1994, see 37, ‘the plane of immanence is not a concept that is or can be thought but rather the image of thought, the image thought gives itself of what it means to think, to make use of thought, to find one’s bearings in thought’ and chapter two, ‘The Plane of Immanence’ passim.
9 Topica in trans. H.M. Hubbell, Cicero in Twenty-Eight Volumes: De Inventione, De Optimo Genere Oratorum, Topica, V.28-9, 401, ‘ one should define the civil law as made up of statutes, decrees of the Senate, judicial decisions, opinions of those learned in the law, edicts of magistrates, custom, and equity’. See also Topica xxiii. 87-90, 453-4, ‘when… right and wrong are being discussed, the topics of equity will be brought together. These are of two kinds, the distinction between natural law and institutions….The institutions affecting equity are threefold: the first has to do with law, the second with compacts, the third rests on long continued custom.’