Aristotle and Natural Law

Ross J. Corbett

Assistant Professor of Political Science

Northern Illinois University

Zulauf Hall 412

DeKalb, Illinois 60115

815-753-7044

[MM = Magna Moralia. NE = Nicomachean Ethics. P = Politics. R = Rhetoric. ST = Summa Theologica]

Thomas Aquinas was possibly the first great interpreter of Aristotle in the West who was not an Averroist, and his understanding of the man referred to simply as the Philosopher colors how he has been viewed ever since. The acknowledgment that Aristotle himself never utters the phrase nomos tēs physeōs, natural law, has chastened scholars such that its invention is now more often traced to Roman jurists or Stoics than laid at Aristotle’s door. Yet Aristotle continues to be seen as at least a precursor to natural law theory, or to have said things compatible with it. This is despite the fact that Aquinas has been shown to have misunderstood, from root to branch, the character of Aristotle’s works, to say nothing of the thought contained in them.[1]

I will give just a few examples, mostly from translators. H. Rackham is so taken with the idea that justice is rule-like, and thus that the virtue of justice is a matter of rule-following, and thus that virtue is a matter of obedience, that his translation of Book V, ch. 7 of the Nicomachean Ethics is riddled with “rule of justice” this and “rule of justice” that, even though nothing of the sort appears in the text; the closest is ta dikaia, the just things.[2] J. A. K. Thomson’s translation, even after revision by Hugh Tredennick, somehow gets “there is such a thing as natural law” from Aristotle’s assertion that “there is something by nature” (cf. N.E. 1134b29).[3] G. Cyril Armstrong similarly forces the Magna Moralia to speak of “rules of natural justice” where ta physei dikaia is recorded.[4]

This paper takes aim at this still present, if (hopefully) unconscious assimilation of Aristotle to the natural law tradition. I address the problem in three stages. First, I examine those passages that could give rise to the belief that Aristotle recognized a natural law, primarily from the Ethics. This discussion, inconclusive as it is, points us toward the debate over absolute kingship (pambasileia) in the Politics and its suggestiveness of a natural law. In both of these discussions, Aristotle fails to say what he ought to have were his thought compatible with natural law thinking, and what would have been eminently respectable for him to say: justice can indeed be formulated as a series of rules for us to follow, or a law can be perfectly just. Third, I address a problem that arises even if such a law were possible: it would be a descriptive rather than prescriptive code for a virtuous man, and so fail to satisfy what would normally be called natural law.

Because of Aristotle’s cryptic prose — it seems that as soon as he appeared first in the Muslim and then in the Christian medieval worlds, a need was felt for commentaries to elucidate his meaning — I will go through the relevant passages almost line by line. Aristotle frequently, perhaps universally, takes positions provisionally, and so the significance of any statement arises almost entirely from the argumentative context in which we find it. It is my hope that, through this procedure, the reader will be enabled to see why I draw the conclusions that I do.

Intimations of Natural Law

To a reader inclined to affirm that there is a natural law, there might seem to be intimations of one in what Aristotle says in the Rhetoric, Nicomachean and Eudemian Ethics, and Politics. I treat the last in the next section. Aristotle’s actual words, however, must be stretched and distorted for there to be conclusive statements in favor of such a law. Indeed, it is not even clear that Aristotle believes that justice could be described in the form of law, let alone that such a law would be obligatory.

There is a passage in the Rhetoric that might be taken to suggest the existence of a natural, or at least “common,” law.

Just and unjust things have been defined according to two laws and according to persons in two ways. I call one law particular (idios), the other, common (koinos): particular is what has been defined by each [people] for themselves — and this [can be] unwritten or written — while common is according to nature. For there is that which everyone somehow divines to be by nature just and unjust in common. (R 1373b2–8)

The meaning of what Aristotle suggests here, when its context is taken in account, however, is that an appeal from the familiar law to some “higher,” more universally authoritative law may be rhetorically effective, since the “divination” of a common justice by nature renders plausible a common law that is according to nature; his purpose was not, however, to establish that such a law exists.[5]

I readily admit that this consideration, by itself, does not mean that Aristotle thought there was no natural law, only that he did not intend to prove its existence it in the Rhetoric. On the other hand, it is interesting to note that Aristotle says only that the just and unjust things “have been defined” (hōristai) with reference to two laws, not that they “are defined,” let alone “I define” or “let us define.” (This is meaningful, for Aristotle speaks in his own voice in the very next sentence, legō) And, as Strauss points out, at least two of the three putative laws common by nature violate what Aristotle himself argues regarding natural justice.[6] Given the ostensive purpose of the Rhetoric, we would not expect to find a clear statement on this matter there, though the curious details just mentioned may be subtle hints regarding Aristotle’s judgment of this publically persuasive argument. In any case, such hints only tell us to examine a question with greater care.

Given what we are looking for, the most likely place to find it addressed is in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). I should note before proceeding that Max Shellens suggests that the best place to discover Aristotle’s views on natural law is instead the Magna Moralia. His reasons for taking this questionable work to be indicative of Aristotle’s thought, however, are unsatisfying.[7] Moreover, the Magna Moralia speaks of natural justice, not natural law. In general, the Magna Moralia, where it contains an expansion on the material from the Eudemian or Nicomachean Ethics, points to a difficulty or question by incompetently attempting to resolve it; many of its omissions have the same effect. Consider, for example, Aristotle’s discussion of political justice by nature and by convention (ch. 7 of Nic. Eth. V [= Eu. Eth. IV]). The Magna Moralia in its epitome (Bk. I, ch. 33, §§ 19–21; 1194b30–95a8) suppresses the fact that natural justice should in a sense be like fire, having the same power everywhere, unchanging, while the epitomist seizes upon Aristotle’s equivocation on this matter to announce that natural justice is the consensus gentium (MM 1195a3–4), thereby rendering unintelligible the epitomist’s parallel claim that “the just by nature is therefore better than that by convention” (MM 1195a6). Ultimately, what is just by nature is in no wise political justice, for the epitomist (cf. NE 1134b18–21).

Let us turn, then, to the Ethics. Aristotle begins by reporting what everyone intends to say about justice (NE 1129a7). That is, their prephilosophic opinions have already been dialectically refined somewhat. He is not saying that, were we to take an opinion poll, everyone would say the same thing, let alone what he reports. Everyone desires to say that justice is a condition of the soul (hexis)[8] that inclines one to perform just actions, act justly, and desire the just things (NE 1129a6–10). Contrary to the standpoint of common morality, the just condition informs what is the just thing to do; the just thing to do is not prior to the condition. In this way, “we speak of walking in a healthy manner when one walks as a healthy person would” (NE 1129a16–7).

Our initial impression, given what we know of Greek philosophy, and especially of pre-Socratic philosophy, is that justice by nature is going to be split from what the law asserts is just. And this is where Aristotle begins. Just and unjust can refer both to the law and to some other, trans-legal standard like equity (NE 1129a32–b1).[9] We could say that natural justice would be equity and ignore the senses of “just” and “justice” that deal solely with the law. We might, that is, insist from the beginning upon the legal positivists’ distinction between law and morality, a distinction that captures something of the classical opposition between nomos and physis. Yet if we can conceive of law as entirely distinct from morals, it is only because we can conceptualize morals independently from law. Legal positivism is thinkable only with an apolitical morality. Aristotle, by contrast, suggests that we can know justice by nature only by knowing the best regime by nature (cf. NE 1135a3–5).[10] Moreover, actual regimes are corruptions of correct regimes (cf. P 1279a22–b10, 1296a22–3), and so their laws aren’t entirely unrelated to what they should be (cf. NE 1129b11–25). Indeed, if we were to start examining equity without regard for the sense of justice as the “lawful,” we couldn’t even say for certain what our subject matter was.[11] These problems with the attempt to divorce morality or equity from law are brought out by Aristotle’s subsequent analyses, and these render the idea of natural law more plausible. We may capture the essence of these problems by saying that this kind of positivism fails to take seriously the claims of the law to justice.

Everything lawful is in some sense just (NE 1129b12–4), a statement perfectly compatible with the positivist assertion that the two senses of law are independent. Yet the laws also have a goal, Aristotle reminds us, and we consider this goal to be just, as well. They aim at the common advantage of all, or of the best, or of those who have authority. “So in one sense, we speak of the things that produce and preserve happiness and its parts in the political community as just” (NE 1129b17–9). Additionally, the laws order the deeds of a virtuous man, commanding what he would do and forbidding what his vicious counterpart would do or what he would avoid doing. Or, this is achieved when the law is laid down correctly (NE 1129b19–25).

By adopting the perspective solely of positive law, Aristotle moves to a position where the law attempts to command perfect virtue, at least in relation with others (cf. NE 1129b25–7).[12] In between these is some species of political justice. Yet there is no suggestion that justice in any of these senses is irreducible to law. Moreover, as Aristotle tells us, the word “lawful,” when used in a normatively laden sense, encompasses more than “equitable,” not less (NE 1130b12–3).

Here again we have an indication that there is a natural law. For if every city attempts to legislative perfect virtue, and succeeds insofar as its laws are laid down correctly, and if law in its perfect sense contains within it the whole of equity, we need ask only what the law would look like where it has actually been laid down correctly. That is, it seems as though Aristotle is more than merely entertaining the possibility of there being a law by nature: the argument has the existence of such a law as its unacknowledged corollary, and perhaps even premise.

It would be misleading to make too much of this fact, however. Aristotle accepts as a working hypothesis law’s capacity for comprehending perfect justice because that is the (sometimes-) premise of the city. He has begun by accepting the city’s perspective, which predictably inclines toward legalism. This is to say that this premise does little to tell us where Aristotle’s argument is leading.

It is an overly formal description of the relationship between law and justice that suggests the necessary existence of natural law. Law, abstracted from any particular law of any particular regime, aims toward complete justice. Yet there is not agreement concerning what complete justice is, or even only what political justice is. Laws differ from one to another most immediately, not in the superior or inferior capacities of their legislators to codify justice, but rather in how their legislators conceived of justice in the first place (cf. P 1333b5–10). The most meaningful differences that cause laws to differ concern the regime, and so it is only the complete justice that is understood as such by the best regime, the regime that is according to nature, that when codified would be a law by nature. Before Aristotle can say this in the Ethics, however, he must establish the dependence of justice upon the regime, and thus of natural justice upon the existence of one regime that is everywhere according to nature.

Before there can be disputes regarding corrective justice or reciprocity, there must be an initial distribution of goods, and it is here that political disputes arise. That is, every conception of distributive justice depends upon a prior commitment regarding what counts as real merit, i.e., what is the most meritorious way of life, i.e., the question of the best regime (cf. P 1323a14–21). “For all agree that what is just in distributions must be in accord with some sort of merit, although not all mean the same thing by merit, but those who favor democracy mean freedom, those who favor oligarchy mean wealth, others mean being well born, and those who favor aristocracy mean virtue” (NE 1131a25–9).

Therefore, if there is one regime that exists according to nature, then the distributions that it would make — the claims of merit it would recognize, the ways of life it would attempt to foster with its distributions and other laws — would be just by nature. Natural right is what the best regime says is right (cf. NE 1135a3–5, and context).