Aristotle and Natural Law
Ross J. Corbett
Assistant Professor of Political Science
Northern Illinois University
Zulauf Hall 412
DeKalb, Illinois 60115
rcorbett@niu.edu
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
1
See Harry V. Jaffa, Thomism and Aristotelianism (Chicago: University of Chicago Press,
1952). I have been told that Jaffa has backed away from some of the more bracing conclusions
in this book, but his reasons for doing so are as yet unclear. His arguments in Thomism and
Aristotelianism do seem rather determinative.
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
2
Aristotle, The Nicomachean Ethics, trans. H. Rackham, Loeb Classical Library # 73 (New
York: G. P. Putnam’s Sons, 1926).
3
Aristotle, The Nicomachean Ethics, trans. J. A. K. Thomson and Hugh Tredennick (New York:
Penguin, 2004 [1953, 1976]), 131.
4
Aristotle, “Magna Moralia,” trans. G. Cyril Armstrong, in Metaphysics, trans. Hugh
Tredennick, vol. II, Loeb Classical Library # 287 (New York: G. P. Putnam’s Sons, 1935).
2
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.
3
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
5
Max Salomon Shellens, “Aristotle on Natural Law,” Natural Law Forum 4 (1959): 72–100,
75–81; Strauss, “On Natural Law,” in Studies in Platonic Political Philosophy (Chicago:
University of Chicago Press, 1983): 137–46, 139–40.
6
Strauss, “On Natural Law,” 140. The two laws are an absolute prohibition on killing whatever
has a soul and a divinely-ordained ban on all slavery. Aristotle does not, by contrast, openly
deny the first of the three ostensive common laws by nature, which is Antigone’s claim that
family members cannot be relieved of the duty to bury their dead by any human act of
legislation; it is nevertheless curious that he does not repeat her assertion that she appeals to the
4
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
“unwritten and unfailing statutes of the gods” (Antigone ll. 454–5), not to nature. In a similar
vein, Aristotle give us the name of Alcidamas’ speech condemning slavery without quoting the
“law” to which he refers; we know only from the scholiast that it was actually an appeal to divine
law. This may explain the one sentence that Aristotle does say in his own name in this context:
that sentence lets slip that the law that is common to all men is natural, i.e., not divine.
7
See Shellens, “Aristotle on Natural Law,” 73.
5
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 preSocratic 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
8
For an excellent discussion of this difficult term, sometimes translated as “habit,” see Joe
Sachs, Introduction to Nicomachean Ethics, by Aristotle, trans. Joe Sachs (Newburyport, MA:
Focus Publishing, 2002), xi–xvii.
9
The equitable man here is ho isos; when Aristotle later says that “equity” (Sachs renders
“decency”) is a standard of justice that corrects the law, it is ho epieikēs and epieikeia. Aristotle
6
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.
assumes that “equitable” captures what people mean by “just” beyond the merely “lawful,” but
acknowledges that there may be some who insist that the unjust are “greedy” as well as
“inequitable.” While defensible, Aristotle replies, this statement can be made sensible only by
stretching the significance of “greedy” beyond its idiomatic meaning until it becomes a synonym
for “inequitable,” at which point common usage suggests the latter term (NE 1129b1–10).
10
I will address this below in greater detail.
11
The post-Aristotelean epitomist responsible for the Magna Moralia does not see this as a
problem (cf. MM 1193b1–13).
7
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
12
Compare Socrates’ suggestion in the Minos that law “wishes to be the discovery of what is”
(315a). The rest of that dialogue does not shed much light on our discussion, for it proceeds
upon Socrates’ companion’s misunderstanding this statement; cf. Leo Strauss, “On the Minos,”
reprinted in The Roots of Political Philosophy, ed. Thomas L. Pangle (Ithaca, NY: Cornell
University Press, 1987): 67–79.
8
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).
9
“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).
And here, at the crucial point, Aristotle demurs to proceed! “One must consider each of
them later, what forms there are of them, and how many, and what exactly they turn out to be
concerned with” (NE 1135a13–5). W. D. Ross suggests that Aristotle here refers to an intended,
or lost, book of the Politics on laws.13 But what we would need are the laws of the best regime,
and Aristotle does tell us much of use in Books VII and VIII of the Politics; the best regime is
supported by education (or by a fortuitous socio-economic situation, see Bk. IV, ch. 11), i.e., by
reducing the need for legal protection. Instead, Aristotle goes on in the Ethics to discuss
culpability.
The Ethics raise the question, Will the best regime rule by law? Aristotle addresses the
best regime in the Politics, but that discussion was immediately preceded by an inconclusive
13
The Works of Aristotle, ed. W. D. Ross, 10 vol. (Oxford: Clarendon Press, 1908–52).
10
discussion of absolute kingship at the end of Book III.14 And there, too, we see rumblings of
natural law.
THE ABSOLUTE KING
Aristotle opens the Politics be suggesting that kingly rule is to be distinguished from
political rule (as well as from despotic and household rule) (P 1252a7–16), and again reminds us
of this as Book III draws to a close (P 1287b36–88a32). Yet the discussion of absolute kingship
arises from the claims to rule put forward regarding political rule. It seems that political claims
about justice, when rendered coherent, result in an apolitical conclusion, one that in practice
cannot be adhered to. Any people so inferior to the king as to warrant kingly rule (cf. P
1287b36–88a32) are probably incapable of recognizing, let alone acknowledging, his superior
claim to rule.15 On the other side of the equation, the only reward for ruling well is honor and
reverence (NE 1134a35–b8; cf. 1129b27–30a8), while the sort of human being motivated
primarily by honor will necessarily disdain the praise of those over whom he is suited to be king
14
For a discussion of the condition of our manuscripts of the Politics on this point, see Carnes
Lord, Introduction to The Politics, by Aristotle, trans. Lord (Chicago: University of Chicago
Press, 1984), 13–17.
15
W. R. Newell takes the people in such circumstances to be simply degraded, rather than
incommensurably inferior to the king. That is, absolute kingship is justified only when the
people are incapable or ruling themselves, not when one man is preeminently superior to a
multitude otherwise capable of governing itself. See Newell, “Superlative Virtue,” Western
Political Quarterly 40, no. 1 (March 1987): 159–78. I can find no place in the Politics where
Aristotle describes circumstances such as Newell does.
11
(cf. NE 1124a10–6). Aristotle nevertheless leads us from political rule to kingly rule, and then to
a defense of absolute kingship.
The most perplexing part of this discussion is Bk. III, ch. 16, which I shall analyze in
considerable detail. That chapter contains six categorical condemnations of absolute kinship that
Aristotle does not clearly rebut; yet ch. 17 begins by concluding that such kingship in fact is ties
justified in certain cases. The condemnations raise, among other things, the specter of natural
law. The lead-up to them suggests that confronting this concern was perhaps the reason why
Aristotle had to investigate absolute kingship before speaking about the best regime and the most
choiceworthy way of life for a human being. 16
The Rule of Law
We must first come to an understanding of what Aristotle means by the rule of law. In
Book IV, ch. 4 of the Politics, Aristotle distinguishes among five types of democracy; his
16
For other reasons that have been given for why Aristotle examined absolute kingship, see
Ronald Polansky, “Aristotle on Political Change,” in A Companion to Aristotle’s Politics, ed.
David Keyt and Fred D. Miller (Cambridge, MA: Blackwell, 1991): 323–45; Thomas K.
Lindsay, “The ‘God-Like Man’ versus the ‘Best Laws’: Politics and Religion in Aristotle’s
Politics,” Review of Politics 53, no. 3 (Summer 1991): 488–509. Especially implausible is Hans
Kelsen’s assertion that Aristotle intended to buttress ideologically the Macedonian conquest of
the world; see Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy,” The
International Journal of Ethics 48, no. 1 (October 1937): 1–64; see rebuttals of this in David
Keyt, “Aristotle’s Theory of Distributive Justice,” in A Companion to Aristotle’s Politics: 238–
78.
12
emphasis regarding the fifth is that law is not authoritative in it, the demagogues bringing every
dispute before the multitude for it to judge (P 1291b30–92a38). In ch. 6, where we find four
types of democracy (the second through the fifth of the original five), law rules in the sort where
there is neither property qualification nor payment for attending to public business because most
citizens simply lack the leisure to engage in politics (P 1292b34–8). Oligarchies are not ruled by
law, on the other hand, when the magistracies are hereditary (their holders therefore not having
to justify their actions even to their fellow oligarchs for their position) (P 1292b4–10) and when
the people are weak enough for the oligarchs to dare lawlessness (P 1293a12–34).
I mention these things because they give a rough idea of what Aristotle means by the
law’s being authoritative instead of a human being’s. Where the magistrates do not act
according to discretion simply, but rather by what someone else has decreed beforehand or by
custom, and where those with the authority to decree aren’t actually consulted, there it is the law
that is authoritative. Law rules when the magistrates recognize an authority above them and
when that authority’s opinion is not solicited.17 This situation then allows the merely formal
distinction between legislation and execution/adjudication to step forward and for law to appear
as a series of rules or commands.
17
Patrick Coby suggests that this is the case simply in “defective regimes,” leaving it unclear
how the rule of law comes about, or what it means, in the correct ones. See Coby, “Aristotle’s
Four Conceptions of Politics,” Western Political Quarterly 39, no. 3 (September 1986): 480–
503, 486.
13
Aristotle contends in Book III with a stubbornly recurring suggestion that the rule of law
thus understood would solve political problems.18 His reaction is that it would not, in fact,
resolve the sorts of conflicts that actually occur within politics. It might by an alternative to
tyranny, dynasty, or extreme democracy, but only an unfortunate political climate combined with
an unenviably poor imagination might lead one to think that every significant problem can be
reduced to the presence of a bad ruler, or that a meaningful alternative to tyranny is unambiguous
and incontestable. Men who actually possess political power, on the other hand tend to argue
about the content of law.19 In the midst of a debate between an oligarch and a democrat, for
example, Aristotle allows that “one might perhaps assert that it is bad for the authoritative
element generally to be man instead of law.” He immediately answers, however, that this
contribution contributes little: “But if law may be oligarchic or democratic, what difference will
it make with regard to the questions that have been raised? For what was said before will result
all the same” (P 1281a34–8; cf. 1282b1–13, 1289a13–5, 1289a20–5).
18
This recurring suggestion underlies the assertion by advocates of the first of the five
democracies that it would be something other than the rule of the poor over the rich, an assertion
that Aristotle explodes (P 1291b30–38). This may explain why Aristotle silently drops it in
restating the kinds of democracy: in reality, it is one of the other four, its type dependant upon
which socio-economic factors prevail.
19
An additional problem to law’s concealing a particular vision of justice is that the strict rule of
rules sometimes serves to mask rather than eliminate discretion; for a summary of views to this
effect, see Sunstein, “Problems with Rules,” California Law Review 83 (July 1995): 953–1023.
Cf. Hobbes, Leviathan, ch. 46, §36.
14
We must therefore take the claims to justice of each regime’s partisans seriously, and not
hope to skirt the morass by championing the Law against all political struggles. Now, every
regime, at least on the surface of things, asserts that people merit ruling in respect of something
other than virtue. Oligarchs, for example, claim that those who contribute more to the regime
should share more in the gains and the decisions of the whole (cf. P 1280a21–40, 1301a28–33).
Democrats, too, claim that there is something in respect of which one merits rule, but that it is
shared equally (P 1301a28–33). What exactly this thing is finds expression in different ways
through the Politics. Sometimes it is freedom, or a free birth (P 1280a4–6, 1280a22–5,
1301a28–33, 1317a40–b3; cf. NE 1131a26–9), but this hardly seems a justification for freedom
and is meaningless outside of a slave-owning society. At other times it is capacity to serve in the
military (cf. P 1279a39–b4),20 but this seems just as relevant as wealth. Rather, it is only if
wealth, freedom, service to the city, etc. stand in as a proxies for virtue that the claim on behalf
of any of them becomes plausible (cf. P 1280b5–8).21 But this is already to say that virtue is a
title to rule! Aristotle concludes his discussion of ostracism by remarking that the claim the
20
Carnes Lord argues that this is a refined articulation of the democrats’ claim to equality on the
basis of a free birth, not an alternative as I have presented it: “the many do not rest their claim to
political justice simply on their status as human beings or free men;” Lord, “Aristotle,” in
History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey, 3d ed. (Chicago:
University of Chicago Press, 1987): 118–54, 140.
21
See Bradley, “Aristotle’s Conception of the State,” in A Companion to Aristotle’s Politics, ed.
Keyt and Miller, 45–53.
15
virtuous have on political power is implicit in the claims of every aristocracy, oligarchy, and
democracy (P 1288a19–24).22
Wait, we might ask, what about tyranny?23 We can begin by noting that the above
arguments in favor of wealth, freedom, etc. are partisan claims: they are advanced to promote
rule by some, and consequently to denigrate rule by others. They are appropriate only where
debate is possible, i.e., where arguments might be received by those with force. It does not
appear as though the tyrant makes a claim on behalf of tyranny.
This is not, however, entirely true: Aristotle silences the democrats’ claim that their
deprivations on the wealthy are just because lawfully done by reminding them that this is the
same claim as a tyrant makes (P 1281a21–24). It is the tyrant who demands respect for the law
and forbids appeals to what lies behind and justifies the law.
To articulate this claim, or to argue for it in the manner of Thomas Hobbes, however,
would be to cede that the law must be justified somehow, and so Aristotle lets the tyrant stand
mute. As soon as one begins to speak about justice, on the other hand, one is on the path toward
acknowledging the claims of virtue.
22
Patrick Coby presents these claims as disputes over the honor of ruling, understood as a
reward for past service, and thus as separate from the conception of politics as an art to be
wielded by the most competent artisan; “Four Conceptions,” 486–96. Aristotle’s transmutation
of these claims into one on behalf of virtue seems to rely, however, on conceiving of justice as an
art.
23
The remaining regimes of Aristotle’s six-fold classification, viz. kingship and polity, are
subsumed under aristocracy: they certainly recognize virtue as the title to rule.
16
It is interesting to note, I believe, that the tyrant’s claim cannot be articulated for the same
reason that the earlier suggestion (viz. that neither democrat nor oligarch but rather the law
should rule) contributed little to the debate. The tyrant cannot make his claim because the very
act of arguing for the legitimacy of law acknowledges that law’s authority can be established
only on the basis of something other than that authority, which immediately shatters its claim to
ultimate authority. So too does advocacy for the Law obscure what might induce anyone to care
a whit for the law apart from its sanctions.24
This aristocratic principle, the foundation of everything correct said on behalf of any of
the regimes, and unavoidable if devotion to the rule of law simply abstracts from the question of
the regime, seems to lead to kingship, simply.
If there is one person so outstanding by his excess of virtue — or a number of
persons, though not enough to provide a full complement for the city — that the
virtue of all the others and their political capacity is not commensurable with their
own (if there are a number) or his own (if there is one), such persons can no
longer be regarded as a part of the city. For they will be done injustice if it is
claimed they merit equal things in spite of being so unequal in virtue and political
capacity; for such a person would likely be like a god among human beings.
24
Consider H. L. A. Hart’s inability to explain why Austin’s sovereign as the “power habitually
obeyed” is actually obeyed, and his reassurance that this question is outside the purview of law;
his strict separation of law and morality ultimately ties him to a watered-down version of
Hobbes. The Hart, The Concept of Law, 2d ed., ed. Penelope A. Bulloch and Joseph Raz
(Oxford: Clarendon Press, 1994), esp. 50–78, 185–212.
17
From this it is clear that legislation must necessarily have to do with those who
are equal both in stock and capacity, and that for the other sort of person there is
no law — they themselves are law. (P 1284a3–14)
Deviant regimes can ostracize or kill such persons, but we are right to feel that there is something
morally dubious about this.
In the case of the best regime, however, there is considerable question as to what
ought to be done if there happens to be someone who is outstanding not on the
basis of preeminence in the other goods such as strength, wealth, or abundance of
friends, but on the basis of virtue. For surely no one would assert that such a
person should be expelled or banished. But neither would they assert that there
should be rule over such a person: this is almost as if they should claim to merit
ruling over Zeus by splitting the offices. What remains — and it seems the
natural course — is for everyone to obey such a person gladly, so that persons of
this sort will be permanent kings in their cities. (P 1284b25–34)
Consideration of the king who rules over everything arises from the question of ceding
kingship to the man of excessive virtue. What would this concession mean? Aristotle outlines
four common forms that kingship might take, and then adds his own as a fifth (P 1284b35–
1285b33). The Spartan model rules in accordance with laws, and is essentially a permanent
general and religious leader without judicial power. The barbarian king also rules by law, but
that law grants him almost tyrannical power. Dictators are essentially just elective versions of
the barbarian king, perhaps for temporary emergencies. In the mythic time of the heroes, kings
were generals, religious leaders, and decided some judicial questions. Beyond these is the fifth
18
sort — the absolute or complete king. One person has authority over all matters, as though the
city or the nation were his personal household.25
Further examination reveals that the Spartan and absolute kingships form two ends of a
spectrum between which the others lie. Only absolute kingship, moreover, counts on its own as
a sort of regime: the Spartan institution could be compatible with several regimes, Aristotle says
(P 1286a5–9).26
So, the question we are left with is this one: what sort of rule will the rule by the virtuous
be? This is resolved by asking whether it is more advantageous to be ruled by the best man or
the best laws (P 1286a8–9). If the latter, then the rule of the most virtuous need entail nothing
more than a permanent general on the Spartan model (cf. P 1285a2–16). Aristotle’s claim about
ostracism and kingship seems far less objectionable if it means only that the paradigm would be
the reelection of a Roosevelt. Answering in favor of rule by the best man, on the other side of
things, need not signify that the singularly virtuous would rule as an absolute king: after all, his
25
I do not know whether Aristotle intends by this analogy to household management to raise the
question of whether the subjects of such a king are to be considered along the same lines as
wives, or rather as children, or perhaps even as natural slaves (cf. P 1259a37–b17).
26
Thomas Lindsay is therefore wrong to say that absolute kingship is not a regime; cf. Lindsay,
“The ‘God-Like Man’ versus the ‘Best Laws’: Politics and Religion in Aristotle’s Politics,”
Review of Politics 53, no. 3 (Summer 1991): 488–509, esp. 495. The tension which leads him to
this conclusion is real, however: the city is not a large household (cf. Pol. 1252a7–16), yet the
community under such a king is ruled as though it were (cf. Pol. 1285b29–33); see Coby, “Four
Conceptions,” 492–3 & n21.
19
virtue may shine so brightly for no other reason than the paucity of virtue in the city, i.e., he
might not be a good man without qualification. If the laws were reasonably good, it might be
preferable that he rule in accordance with them. It would mean, however, that this would always
be an approximation of justice, and so that a better man would with greater right be less
constrained by these laws.
This ambiguity regarding the most virtuous man in the city versus the best man without
qualification persists throughout the rest of the discussion. Arguments against absolute kingship
make him the best in the city, while the serious point about regimes and Aristotle’s concern
focus on the second option. Pace Thomas Lindsay, we are not necessarily talking about rule by
a god, let alone by the “Divine” of Aristotle’s Metaphysics, though that is nonetheless one
possibility among many.27
Aristotle has raised the question of whether it is best for the best man to rule or the best
laws. He almost immediately refines this question, however. It turns out that this distinction
misses the point, as is shown by the ensuing debate. Let us follow this debate closely.
One arguing for rule by the best man, it begins, might say that law speaks only of the
universal and does not command with a view to circumstances. Yet it is well-known that “to rule
in accordance with written [rules] is foolish in any art,” and the consequence of this would seem
to be that “the best regime is not one based on written [rules] and laws” (P 1286a11–2,
1286a15).
Yet, in favor of one arguing for the laws, Aristotle suggests that this same universal
account (ekeinos ho logos ho katholou) ought to be available with regard to rulers (P 1286a16–
27
See Lindsay, “The God-Like Man.”
20
7). (In calling the argument against the rule of law a “universal account,” Aristotle draws our
attention to the fact that it has argued that because the law may fail, it should never be
authoritative) After all, in general, whatever is unaccompanied by the passionate element is
superior to that in which it is innate, and this is true of the laws but not of human beings (P
1286a17–20). That is, the argument goes, human beings should therefore never be authoritative,
if the universal account advanced by the proponent of kingship is acceptable.28
Perhaps, Aristotle goes on to suggest, the promoter of kingship will respond that the
king’s possession of the passionate element will be offset by his finer deliberation regarding
particulars (P 1286a20–1). But this cannot dispose of the problem, for now we have two sets of
corresponding strengths and defects on each side of the argument. The laws, in their favor, are
dispassionate, but their universality means that they do not look to circumstances or particulars.
The best king, on the other hand, will judge particular cases more finely than the laws would, but
is subject to human passions.
So the question of whether the best laws should rule or rather the best man would seem to
obscure the real question by establishing a false dichotomy. Instead, the laws should be
authoritative where their particular defect does not render their particular strength useless (P
1286a21–3). (Dispassionate folly is folly nonetheless) A human being simply must rule at
times. These times are not, however, when man’s particular defect does not render his strength
useless, but rather when this defect cannot be circumvented (i.e., the two are not simply parallel
28
It is interesting to note that the pro-kingship argument draws an invalidly universal rule from
what is exceptional, while its opponent draws a similarly invalid universal rule from what is only
commonplace. The error of the first has an aristocratic flavor; of the latter, democratic.
21
or complementary). The debate between the rule of law and the rule of man misses the issue:
what can be contested is whether one alone should decide things where the laws cannot, or rather
everyone (P 1286a23–4).
In support of the latter option, Aristotle notes that, as things stand now, everyone comes
together to adjudicate, deliberate, and judge, and these judgments concern particulars. That is,
democracies rule just like this hypothetical king (P 1286a26–8; cf. 1292a30–8). Furthermore, in
favor of this, one might say that the collective is better in its judgments than a single king, even
if any single one of them is inferior (P 1286a27–31). Not only that, Aristotle continues, but the
crowd is more incorruptible on account of anger or some other passion: it is hard for all to
become angry and err at the same time (P 1286a31–5).29
Dubious as this sounds, Aristotle is not stating this with deadpan irony. One might assert
against this kind of democracy that it would be better were the multitude to rule by law (P
1286a36–7). This is of course true, but it isn’t really a fair objection. After all, if the advantages
of kingship are to be judged on the assumption that the king is a good man, should we not also
judge the rule of the many by the same standard? Yes, it is difficult for the majority to rule by
law, just as it is difficult for it to be full of every virtue (P 1286a38; cf. 1279a39–b4). Still, if
there were a majority who were both good men and good citizens, the question is whether they
would be more incorruptible than a single ruler. To which the answer is clearly that it would be.
29
On this argument and the one preceding it, see Jeremy Waldron, “The Wisdom of the
Multitude,” Political Theory 23, no. 4 (November 1995): 563–84.
22
Aristotle calls this an aristocracy (P 1286b6). He doesn’t say why,30 but it is justifiable
on the basis of his earlier discussion of democracy and oligarchy (cf. P 1279a22–1279b10). Just
as democracy is not properly understood as rule by the majority, but by the poor, and oligarchy is
not rule by the few, but by the rich, so too is aristocracy rule by the best men, whether they form
a majority or not. And here Aristotle concludes that it would be preferable to kingship wherever
there are enough good men to form one.
We are not yet to the absolute king, however. This aristocracy is ruled in accordance
with law, just like the king under consideration here. That is, aristocracy differs here from
kingship only in who decides what is to be done when the laws fall short. Aristotle is not
transparent regarding the segue from this lawful aristocracy to absolute kingship. We can,
however, make this linkage explicit.
The king who rules by law, where law is able, was deemed preferable to the one who
rules only by his own will because the latter form of government does not guard against human
passion where such protection is possible. Yet the comparison of such a king with a democracy
(or majoritarian aristocracy) has revealed that the reason for this preference ought not to have
convinced us: just as it is not fair to compare a good king with a bad people, we must judge the
rule of the best man vis-à-vis that of the best laws by maintaining his moral and intellectual
30
In order to make sense of Aristotle’s calling this form of government an aristocracy, which
suggests rule of the few, Lord translates hoi pleious as “a number” rather than as “the majority.”
Patrick Coby instead suggests that Aristotle really does mean an aristocracy here, or that
aristocracy replaces polity as the regime that best responds to challenges of providing civic
education through civic participation; “Four Conceptions,” 484–5, 501.
23
virtue.31 Everything since Aristotle introduced the problem of ostracism has been merely a
prelude to this point. The question of rule by man versus by law may rely on an unhelpful
dichotomy, but that of the best man versus the best laws is foundational.
Thus, we must now, in Chapter 16, address the king who acts in all things according to
his own will. This chapter presents the arguments against such a king.
Six Attacks on Kingship
(1) such a form of absolute kingship would be against nature (P
1287a8–23)
That is, it would be the permanent rule of one, whereas the city is constituted of similar persons
(cf. P 1255b20). It is harmful to give unequal things to equals. Rather, justice demands that
equals rule and be ruled by turns. This rotation in office is a law, however, and therefore it is
better for law to rule, not one of the citizens. This argument concedes that of course there are
offices that must be filled, and so that ultimately men will rule in some fashion or another. But it
counters that it is necessary that they be considered law-guardians and servants of the laws.
(2) where the law is incapable of providing a determinate answer,
neither could a human being (P 1287a23–32)
31
W. R. Newell does not think that Aristotle pushes the argument this far, instead focusing on
whether a multitude such as we are likely to encounter would rule better than a single human
being such as we are likely to encounter; see Newell, “Superlative Virtue,” esp. 172–4. The
superhuman and god-like characteristics of the absolute king are noted in Lindsay, “The GodLike Man;” and R. G. Mulgan, “A Note on Aristotle’s Absolute Ruler,” Phronesis 19, no. 1
(1974): 66–9.
24
I take this to mean, based upon what follows this statement, that where the law cannot answer,
neither could a human being without having been educated by the laws. After all, the argument
continues, the laws educate men for this (“this” presumably being those cases where the law does
not adequately guide the magistrates). They guide rulers in those cases where the laws do not
speak.32 Indeed, the laws themselves make room for their alteration on the basis of the rulers’
experience.
(3) those engaged in the arts, like doctors, do not pervert their
judgments on account of partiality; if they did, we would insist that
they healed according to written rules (P 1287a32–b5)
This argument counters that against the rule of law by analogy to the arts (cf. P 1286a10–5). It
points to the fact that doctors do not heal themselves, and trainers seek others when they are
training. This shows that the experts know themselves to be poor judges both in their own cases
and when they are suffering. What these analogies make clear is that what men seek when they
seek justice is impartiality, or a common measure (meson).
(4) customary law is more authoritative and deals with more
authoritative things than written laws (P 1287b5–8)
32
That the magistrates are to be guided “by the most just decision,” the oath sworn by jurors,
might suggest the sorts of things that the law cannot cover, as conceived by the ones making this
argument; cf. R 1354b13–5. It seems a stretch to conclude, as Lindsay does, that Aristotle
intends this to be a veiled reference to Socrates’ trial and judgment; see “The God-Like Man,”
504.
25
This is important because it allows one to distinguish an argument applicable against the rule of
written laws from one touching customary laws. Thus, one can grant that it might be safer to
have a human being rule than written laws, but that this is not so for customary laws.
(5) as every ruler would require subordinates, why not have these
selected from the beginning? (P 1287b8–11)
In other words, why the hierarchy? Why not just have the several officers without making them
subordinates of another?
(6) as was said earlier, if it is just for the excellent man to rule, the
rule of two excellent men would be better (P 1287b11–8)
Indeed, this argument continues, this is done already, for things the law is unable to determine
are decided by multiple jurors. And, it continues, no one would dispute that the law would be the
best ruler and judge in things that it can determine.
It is not obvious or incontestable that these arguments are offered in Aristotle’s name. He
says that “those who argue against absolute kingship” say roughly these things (P 1287b35–6).
W. R. Newell concludes that “these are not so much Aristotle’s own arguments as hypothetical
objections presented for our consideration.”33 Yet Aristotle doesn’t go on to provide us with the
counterarguments of those who argue for absolute kingship.
We can further distance Aristotle from these conclusions by attentively noting certain
deficiencies in the arguments presented here in Chapter 16. The counterarguments to this
chapter which appeared to be missing are, it turns out, contained in the manner in which the
33
W. R. Newell, “Superlative Virtue,” 173.
26
arguments are themselves presented. As will become clear, some of these counterarguments
raise problems more than they resolve them.
Aristotle’s Muted Rebuttals
We may say of argument (1) that it simply misses the point under consideration. Its
premise (that, all being equal and parts of the city, it would be against nature for one to rule
permanently) flatly contradicts the basic supposition of the entire question, viz. how would one
who is so superior that he can no longer be counted as a part of the city rule? At most, it clarifies
that we cannot be talking about the Spartan mode of kingship. Its supposed syllogism that
justice demands rotation in office, that rotation in office is a law, and therefore that justice
demands the rule of law is so sophistic as to be silly. Moreover, it results in a flat out lie, or what
might charitably be called a fiction. The questions which the inevitable failure of law occasions
involve who should be authoritative during said failures and whether law is simply a poor
approximation for the rule of the most virtuous; instead, argument (1) tells us how to
conceptualize those men who do rule, apparently without regard for whether they guard and
serve the laws lawfully or not.
Argument (2) is undermined by Aristotle himself. He summarizes the point by saying,
“One who asks law to rule, therefore, is held to be asking that god and intellect alone rule, while
the one who adds man adds the beast. Desire is a thing of this sort; and spiritedness perverts
rulers and the best men. Hence law is intellect without appetite” (P 1287a28–32). This appears
27
to be Aristotle’s judgment on the argument, or his addition to it.34 The rule of laws not of men,
he implies, expresses the ideal that the god and intellect should rule, and consequently contains a
bestial view of human beings. Desire is a bestial thing, while the intellect is divine. Spiritedness
is similarly unambiguous, serving only to pervert rulers and even the best of men. In response to
the question “what is law?” those who defend the rule of law and think that human rulers should
be nothing but law-guardians and servants of the laws seem to answer “intellect without desire.”
The power of this argument therefore lies in its view of what law is. Aristotle does say
similar things about the intellect (NE 1177b26–78a8), but the question is whether it is also true
of law. Aristotle has already said that the rule of law doesn’t answer any interesting questions,
for the laws may be democratic, oligarchic, etc. This diversity is absent here (as it is throughout
the discussion in the Ethics, save for 1135a3–5). That is, this “law” seems to be what later
thinkers, some seeing themselves as Aristotle’s heirs, others as purgators of his influence, would
call the natural law.35
It might seem intuitive that if no actual law can be identical with the law of nature so
defined, then this argument against the rule of a human being would ring hollow. But this
intuition errs in the same fashion as argument (1): if we are to consider an unimaginably good
34
Lord takes this to be Aristotle’s view of the debate between the rule of law and absolute
kingship, rather than Aristotle’s comment on the argument just made against kingship;
“Aristotle,” 142.
35
Patrick Coby sees this argument in light of the one to follow, i.e., that law as reason provides
impartiality and procedural (rather than substantive) justice. See Coby, “Four Conceptions,”
485–6.
28
human being as king, we must also allow the law to express its virtues without extrinsic
opposition. The serious challenge to argument (2), therefore, and the point around which this
entire discussion of the rule of law and absolute kingship revolves, is the status of this law.
The argument that the best king rules all things in accordance with his will and without
law would be destroyed, not by asserting that such virtue is beyond human capacity,36 but by
showing that even a god could not possess all the requisite virtues or, if it did, would rule by law.
The first might be the case were those virtues essentially incompatible such that the good ruler
passed from merely unlikely and into the realm of the incoherent or absurd. The second would
be true if the law were simply good, so that such a god would in point of fact rule in accordance
with it. Argument (2) relies on just such a law. Consequently, it would ring hollow were no
such law to exist, or were it not obligatory.
Similarly, if the relationship between desire and the intellect is not so unambiguous, nor
spiritedness simply bad, or if law is not simply the intellect without desire, then argument (2)
loses most of its force. As Aristotle suggests in the Nicomachean Ethics, we desire an alternative
to rule by a human being (the mss. have this alternately as “law” or “reason”) because it seems
that ruling justly is to have more regard for another’s good than for oneself unless one is willing
to forego numerous good things for the sake of honor and reverence. That is, it is not the
baseness of human beings but the suspicion that the tyrant isn’t simply mistaken about the good
36
Cf. P 1286b22–7. Consider also that, whereas Aristotle sees that the Spartan and barbarian
models of kingship actually exist, and various sources suggest to him that the Greeks formerly
had dictators and heroic kings, he provides no example of there ever having been an absolute
king (as opposed to a tyrant).
29
life that is responsible for all the praises heaped up upon the law and justice (cf. NE 1134a35–b8;
cf. 1129b27–30a8).
The point of argument (3) and its counter-analogy to the arts isn’t immediately obvious,
and so it must be reconstructed. It claims that what men seek in the law is impartiality. But how
is this relevant to the discussion at hand? In suggesting that the pro-kingship argument’s analogy
to the arts is inapposite, argument (3) appears to say that the impartiality for which men seek in
the law is to be contrasted with an expertise which they do not seek. This suggestion, however,
implies a positive statement about the nature of justice. This statement, it turns out, also
underlies argument (2). It suggests that justice is easy. That is, the problem of politics is not that
the intellect does not know, but that it does not rule. One need only bracket off spiritedness and
desire, the sources of partiality, for the intellect to shine through.37
The crux of argument (4) is that the customary laws (hoi kata to ethos nomoi) are more
authoritative than written ones (hoi kata gramata nomoi). What this means isn’t immediately
obvious. We need not, however, read it as making the somewhat implausible assertion that the
customary laws by contrast are infallible, as if “more authoritative” somehow meant “more
competent.” The more plausible assertion, and the one I will take this argument to be making, is
37
There is another implication of this which is not taken up in Aristotle’s summary of the
chapter. It is that knowledge of justice is like an art in that it does not determine ends, or can be
misused (cf. the discussion in Plato’s Republic, 331d–334b). Since this is certainly not
Aristotle’s view (cf. NE 1129a11–7), this is another indication that this chapter is not offered in
his name.
30
that human beings are less trustworthy in more authoritative matters, i.e., in the sphere treated by
customary laws, than they are in matters covered by written laws.
The saliency of this argument would suggest that the absolute king claims a superiority to
the laws which establish, articulate, and foster traditionally understood ethics, as well. Note, he
is not necessarily eschewing ethical conduct, but rather the obligatory nature of laws which claim
to give definitive expression to this conduct. Similarly, this argument need not assert, as (2) did,
that these laws express justice perfectly. Nor does it desire to assume, with (3), that the
principles of right and wrong are unproblematic. Rather, it says that human beings are poor
judges of these things. If this is so, this argument would be a more sophisticated version of (2):
men, educated by the customary laws, can judge written laws well enough, but they cannot safely
move beyond that law-bred moral horizon.
This argument is penetrating, but its insight is into a question different from the one
under immediate consideration. It denies, by way of assertion, that a human being could ever be
wise in the way that the ancestral laws are wise. This, in turn, could be true if these laws were
the product of inimitably superior gods or those whom they inspire, e.g., Minos or Numa. The
question, however, is, How would these gods or demigods rule? That is, the truth of this
argument does not imply that the best would not rule absolutely or have a just motive for
violating these laws.
Argument (5) actually misses the point entirely. The king is to regulate the subordinates,
and the question is whether he should do so by his own judgment or by the law.
Argument (6) shifts from arguing for democracy to the benefits of the rule of law where it
is possible. Aristotle himself says that this misses the point: the question (viz. whether it is more
choiceworthy to have the rule of the best law or the best man) arises precisely because there are
31
some things which can be encompassed by the laws while others cannot (P 1287b19–23; cf. NE
1137a31–38a2). Yet argument (6) does not deny this: it instead says that there should be many
deciding in these cases, not one (P 1287b23–5). Yet the entire premise of absolute kingship is
that these many aren’t available: there is only one. Otherwise, we would have an aristocracy.
But if aristocracy is allowable, so too is absolute kingship. The arguments against absolute
kingship must also work against aristocracy.
Recap
Aristotle ends Chapter 16 by boiling down the entire argument against absolute kingship
to two points. Roughly speaking, it is: “every ruler judges finely if he has been educated by the
laws” (P 1287b25–6), and many people see, judge, and act better than one, just as one sees better
with two eyes than with one, judges better with two ears, and acts better with two hands.
This second point has a nakedly rhetorical element to it, yet Aristotle’s phrasing of it
reveals how it is dependent upon the first. One certainly sees better with two eyes than with one,
but one judges better with two ears only if judging correctly is a matter of correctly hearing.
This is plausible only if the principles of judgment are clear and readily available, poor judgment
proceeding only from a poor appreciation of the facts (moral perversion is silently dropped). In
the event that we miss this, the third part of the analogy is pointedly bizarre: it mistakes the
capacity to act for the good choice of how to act.
To buttress this claim, Aristotle tells us, they argue that kings make for themselves
subordinate ministers, and that these are in effect “co-rulers.” Yet because a king would rule
over them and not have them be insubordinate, the argument continues, they must be his friends.
But — and here one can almost hear Aristotle laughing as he attributes this to a grave democrat
— if they are friends, and a friend is someone similar and equal, then the king has revealed his
32
adherence to the principle that those who are similar and equal should rule similarly, and thus
demolishes his own title to rule!
It is not until this brazen sophistry that Aristotle tells us that the arguments against
kingship are “roughly” or “essentially” (schedon) these. What does he mean by this “roughly”?
One thing to note is that not every argument that was present in the chapter is represented in this
summation. Some things are left out when the case against kingship is summarized. We are left
with two arguments: justice is easy and a sophistry. Might Aristotle mean to signal with this
“roughly” that every assertion that absolute kingship is flatly unjust (rather than merely
impractical) is reducible either to nonsense or the claim that justice is easy? What is certain, in
any event, is that Chapter 16 contains six arguments, and that every aspect of each of these can
be characterized in one of four ways: a) already dismissed, b) begs the question or otherwise
misses the point, c) assumes the existence of a natural law, or d) asserts that justice is adequately
known by every well-educated schoolchild — the view of the city.
Now, given how rule by law appears in Aristotle’s discussion in Book IV, it might seem
strange to ask whether an absolute king would rule by law or not. What Book III leaves us with,
however, is the intimation that he might rule by the simple application of law if justice could find
adequate expression as a law, a natural law. This directs us toward the Ethics. There, we learn
that justice is what the best regime would set down, and so we want to know whether the best
regime would rule by law. And here, the Politics just points us back to the Ethics, maintaining
an ambiguous, even guarded stance on a question both works seem intent on bringing us to ask.
VIRTUE AND OBEDIENCE
The Ethics lead us to the conclusion that, if the best regime were to rule by law, not
needing exception, then natural justice could be expressed as a natural law. Absolute kingship in
33
the Politics is not the best regime, but only because the sort of inequality that it presumes either
does not exist or in practice would not be accompanied by the incommensurably inferiors’ or the
excessively superior’s acquiescing in such an arrangement. Politics is bound, then, by the fact
that no single judgment about justice will be simply authoritative, and so by the frequently
actualized potential for conflict over justice. Yet, the discussion of absolute kingship is for that
very reason more helpful in answering the question raised by the Ethics, for one view of justice
— the right one — will or may govern the city. If we posit a simply virtuous king, moreover,
not merely one incontestably superior to an especially degraded citizenry, we can eliminate the
anti-tyrannical, phylactery aspects of law. Would a man of exceptional virtue, if still inferior to
the king’s, have a just cause of complaint against the latter’s laws, or would the king even
attempt to legislate concerning such a man (cf. P 1284a14–5)? And here, the discussion of
absolute kingship makes the answer to this question depend upon the very thing we turned to this
discussion to resolve: is it possible to craft such a law?
The resolution of this difficult, cycling question would not bring with it the kind of
closure that might at first be promised, however. For it is the king’s own actions, too, that would
have to be regulated by law if there is to be a meaningful formation of natural justice. This is to
say that we would be right to demand that he rule by law only if he would do so anyway.
Ultimately, the absolute king cannot be bound to rule by law any more than fire can be
“bound” to burn here just as it does in Persia (cf. NE 1134b26). For a natural law that concerned
justice, while remaining true to Aristotle’s analysis, could be nothing but a law-like description
of natural justice, not a command, and so subject to the same constraints as operate upon any
other law of nature with which modern science has made us so familiar. This means, crucially,
that it could not be deployed to criticize or to judge the phenomena it purports to explain.
34
Aberrations would instead impeach that law. In a readily understandable sense, the law of nature
— if it even exists — is more an observed regularity than a law, properly speaking. Were we to
stumble upon a healthy person walking in an unusual way, paradoxically, we must concede that
such can be the gait of a healthy person (cf. NE 1129a16–7).
What I have been discussing so far does not, that is, touch upon the obligatory character
of natural law. Of course, if natural justice cannot be given general expression in any way that is
useful for guiding behavior, then we can know with certainty that no wise or beneficent ruler
would judge all cases based exclusively upon adherence to or violation of his law; if Aristotle
thought this about natural justice, we can say that no tweaking of his outlook could reconcile him
as a precursor to the natural law tradition. We can go further than this, however, and note that a
radical alteration to Aristotle’s fundamental outlook would be necessary before he could seem
familiar to the devotees of natural law. The natural law cannot be obligatory because obedience
is not a, let alone the principle, virtue. For Aristotle, natural justice and the whole of virtue and
vice are intelligible without rules by which one is to guide behavior: virtuous acts are not guided
by rules.
Most crucially, however, all are not expected to follow what might be an Aristotelian
natural law. Not every city is capable of enjoying the best regime (P 1325b37–26a5) — even the
best practicable regime of Book IV of the Politics is within the reach only of “most” cities (P
1295a25–31) — and the happiness that comes with virtue requires external props (NE 1178a22–
78b7). The very real standards of what is best do not given occasion for judging the choices
made by those in unenviable circumstances, i.e., by most of us. Natural right would be the
justice recognized by the best political community, even though not every city is capable of
enjoying that regime.
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We may see the gulf that separates Aristotle from Aquinas by looking to the latter’s
“clarification” of the former. Aquinas addresses the question, Is the natural law the same in all
men? (ST I-II, Q. 94, A. 4). The second objection reads,
Further, “Things which are according to the law are said to be just,” as stated in
Ethics V. But it is stated in the same book that nothing is so universally just as
not to be subject to change in regard to some men. Therefore, even the natural
law is not the same in all men.
Aquinas responds,
The saying of the Philosopher is to be understood of things that are naturally just,
not as general principles but as conclusions drawn from them, having rectitude in
the majority of cases but failing in a few.
Aristotle, Aquinas suggests, failed to state explicitly something that he understood would be
assumed. Like Magna Moralia’s epitomist, Aquinas enlightens us:
However, we must keep in mind that the essences of changeable things are
immutable; hence whatever is natural to us, so that it belongs to the very nature of
man, is not changeable in any way, for instance that man is an animal. But things
that follow a nature, like dispositions, actions, and movement, are variable in the
fewer instances. Likewise those actions belonging to the very nature of justice
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cannot be changed in any way, for example, theft must not be committed because
it is an injustice.38
Aquinas seems instead to capture Aristotle’s disposition toward any purported natural
law when he moves on to explain why it does not belong to human law to repress all vices.
Now, possibility or faculty of action is due to an interior habit or disposition,
since the same thing is not possible to one who has not a virtuous habit as is
possible to one who has. Thus, the same is not possible to a child as to a fullgrown man, for which reason, the law for children is not the same as for adults,
since many things are permitted to children which in an adult are punished by law
or at any rate are open to blame. In like manner, many things are permissible to
men not perfect in virtue which would be intolerable in a virtuous man. (ST I-II,
Q. 96, A. 2)
Aristotle does not envy the vicious, or deny that one way of life is superior to the rest; he also
does not condemn them. His approach to ethics share in that magnanimous grace which Aquinas
permits only to statesmen. The intimations and rumblings of natural law in the Rhetoric, Ethics,
and Politics mark a position that Aristotle distances himself from. For there is also an equally
subtle intimation that the divinization of Law is tied to a belief in the simplicity of justice.
38
Commentary on Aristotle’s Nicomachean Ethics, trans. C. J. Litzinger (Notre Dame, Indiana:
Dumb Ox Books, 1993 [ 1964]), §1029.
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