In Plato, we saw a tension between two different accounts of law: one as an imperfect, man-made set of rules established for the purpose of peaceful coexistence, and the other as a divine order encoded into human law by an individual with privileged access to the divine world. Aristotle recognized this distinction, and attempted resolve the tensions.
|Aristotle, in a detail of Raphael’s The School of Athens. Aristotle gestures downward, indicating his belief in knowledge gained through empirical experience.|
Aristotle felt it was important to ground law into a divine, natural order of some kind. This cosmic order is what gives law its binding authority. He, like Plato, also believed that a central function of law was to compensate for the imperfect and random judgment of men. He drew from an example presented by Plato’s Socrates (in Plato’s more dubious second point of view). People have passions and behave randomly, but reason can corral those otherwise random impulses together and direct them towards a higher and more noble purpose. In the same way, law can be the voice of reason to a population of random and various purposes, and can channel them towards nobler ends. Aristotle said,
He who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast. Appetite has that character; and high spirit, too, perverts the holders of office, even when they are the best of men. Law [as the pure voce of God and reason] may thus be defined as “Reason free from all passion.”1
Do men discover the rational order and then encode it into law? Plato answered this question simply by saying that law is discovered by the philosopher-king and imposed on the people in its pristine, divine form (in his second and more satirical point of view). Aristotle’s view is more nuanced. “In Aristotle’s picture, legislators are not obliged to copy an ideal, but rather to articulate in more particular and concrete terms what they have grasped as an abstract requirement. … Aristotle accordingly distinguishes between theoretical and practical reason.”1
According to Aristotle, legislators may “discover” basic principles and abstract ideas, but the “business of making laws … is a practical activity, and the legislator has to attend to the contingent human world. … The activity of legislating is not concerned with disclosing the unchanging truth, but rather with interpreting it for particular circumstances.”1 Thus, while the abstract ideas may be universal, the laws that a legislator makes may be different according to different contexts, because a legislator interprets the abstract principles and applies them to each circumstance. Thus,
The twofold character of law is described by Aristotle as if there were two sorts of law, which he calls “particular” and “universal.” Particular law “is that which each community laws doean and applies to its own members”; universal law “is the law of nature.” Because “everyone to some extent divines” this “law of nature,” we can know what it “really is,” Aristotle says. …
That everyone can “divine” the natural law follows from the definition of man, common to Plato and Aristotle, as a compound of reason and passion or of spirit and matter, or as a rational animal. This understanding of human nature implies that the rational or spiritual element of man is a participation in the ruling principle of the universe, and that the universe is a cosmos ordered by a rational and divine principle, of which man’s reason is a fragment. Aristotle makes it clear that men can claim to have knowledge of an unchanging “natural law” because they share in the divine reason that rules the universe, and this belief postulates a universe that incorporates within itself its divine ruling principle. In short, the idea of natural law rests on assuming that God is neither beyond and outside his creations nor incomprehensible, but is rather immanent in human reason.1
So, while there are universal, abstract ideas which we can intuit, not all law is a direct encoding of this overarching order. There is also a need for practical wisdom in applying these laws to particular circumstances. For example, Aristotle said,
Of political justice, part is natural, part legal; natural, that which everywhere has the same force and does not exist by people’s thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent, e.g. that a prisoner’s ransom shall be a mina, or that a goat and not two sheep shall be sacrificed, and again all the laws that are passed for particular cases. … The things which are just [as in accordance to law] not by nature but by human enactment are not everywhere the same … Of things just and lawful each is related as the universal to its particulars.3
This belief in a rational order may seem to imply that men have a moral duty, by conscience, to obey well-executed laws, and also that laws that are not rooted in this rational order may be properly disobeyed. This is because if the authority of law comes from its relationship with the rational order, when there is no relationship with the rational order, there is no authority. “In matters where ‘legal justice’ can be required to conform to ‘natural justice,’ the ‘divine’ element in men that gives each person natural knowledge of this higher justice would seem to give every person the right to refuse … to observe an ‘unjust’ law.” However, Aristotle “unequivocally denies both that legislating is merely a matter of enacting a pattern discovered in the sky and that every man has a right to disobey a law when he finds that it conflicts with ‘natural law.’”1 Thus, Aristotle did not believe that just anybody could rebel against a law when he did not see its connection with the divine order.
So, there is a rational order that is known to people, “self-evident” in a sense through reason, but the actual laws that a legislator enacts may vary from place to place, according to various circumstances and the needs of the people. These laws may not be a direct logical deduction from universal principle, but nonetheless are implemented as law by people and are still to be obeyed.
Aristotle was also concerned with the questions, “What is a polis?” and, “What does it mean to be a citizen of a polis?” Consider the implications of this question. Plato defined a polis as an association created by law: it is a collective body of people who are governed by a common set of rules. According to Aristotle, however, a simple agreement to a set of rules, however, is not enough to make a polis. For example, my friends and I agree to abide by a set of rules when we play Risk, but we are not a polis for doing so. Or, two nations may make treaties and agreements with each other, but their association can hardly be called a new polis. A business may collect participants towards a common goal, but this association is not a polis either.
Aristotle believed, like Plato, that a polis is, indeed, characterized by a subscription to a common set of rules. What makes the association a polis, in contrast with a mere treaty, or a game, or a business is the goal or purpose the association and its rules are working towards. Aristotle did not believe (as Plato did) that the rules that govern the polis could be entirely non-instrumental. That is, they can’t be conventions designed merely to allow people to simply get along with each other. Why is this? Well, as we mentioned before, two nations may make agreements that allow them to get along, but mutually consenting to a set of rules is hardly enough to make the subsequent association a polis. The laws that govern a polis must have an end that is unique to that association. Just as rules of a family have a purpose that is suited to the purposes of the family, and the rules of a military must serve the purposes of the military, the laws of a polis must serve purpose of the polis. Letwin explains,
It follows that for a polis to be orderly, all the activities of its members have to be directed to serve a common purpose, as opposed to an alliance where a common objective exists alongside many diverse, unrelated ends. The end that shapes political order must be one to which everything that goes on in the polis is related as a means. Aristotle finds this end in “the good life,” by which he means the realization of the higher potentialities of human “nature,” as distinct from mere physical survival, which human beings share with animals. And he concludes that what distinguishes the polis from other associations like a household or alliance is its concern with achieving this all-embracing and therefore highest end for all of its members.1
Any polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness. Otherwise, a political association sinks into a mere alliance, which only differs in space [i.e. in the contiguity of its members] from other forms of alliance where the members live at a distance from each other. … The end and purpose of a polis is the good life, and the institutions of social life are means to that end.2
In other words, Aristotle believed in an instrumental view of law, and saw the polis as a universitas-type of association united under the common goal of achieving the good life. A set of non-instrumental rules that don’t direct the populace towards a common end would make the polis no different than a mere alliance among its participants. Letwin continues this thought:
Recognizing the “good life” as the end of a polis explains not only the unity of a polis, but also what determines the substance of the law. For the law is then supposed to teach the members of the polis a particular way of living, and does so by imposing a “system of order” on the activities of all citizens. The object of law is education in its broadest sense, and this gives the unity of a polis its distinctive character: “Otherwise, a political association sinks into a mere alliance” and “law becomes a mere covenant—or (in the phrase of the Sophist Lycophron) ‘a guarantor of men’s rights against one another’—instead of being, as it should be, a rule of life such as will make the members of a polis good and just.” Because law gives a collection of men a common quality, Aristotle says that the law instructs, and that the art of the legislator molds the citizens. Legislators make men good by “forming habits in them,” and those who fail to do so “miss their mark.” What distinguishes the “instruction” provided by the law from that of the family is the coercion attached to law. This is the only context in which Aristotle notices coercion as an attribute of law.1
However, a subscription to common rules designed to achieve the good life is not sufficient to make a polis either. Those that subscribe to this common set of rules must be common from various backgrounds. You’ve got to have bakers, artisans, soldiers, fathers, brothers, merchants, etc. What makes a polis a polis is that the association transcends and subsumes just about every other kind of association. Almost all other associations are a part of the polis. Thus, contained within the universitas of the polis is the societas of everyday society.
What does it mean to be a citizen of a polis? This too is a more interesting question than it appears. Consider; we require non-citizen residents to abide by the same rules we do while they live here, but they are not citizens. There are many examples of people who we require to follow the law, but we do not consider them citizens of the polis. Thus, although a polis is a collective subscription to a common set of rules designed to achieve the good life, being a citizen of a polis is more than just adhering to those rules and living within the boundaries of the polis. To be a citizen, Aristotle concludes, is to participate in the lawmaking of the polis in some way. For example, in the United States, we are a citizen when we can vote.
|Forms of Government|
We should also take a brief moment and look at Aristotle’s view of political systems. He believed that there are three different kinds of proper government: kingship, aristocracy, and polity. All three of these can look after the common interest; kingship is when one person rules, aristocracy is when the best rule, and polity is when the masses rule, but only to the extent that they look after the common interest. Each of these forms of government has a counterfeit. Aristotle explains,
Three perversions correspond to them. Tyranny is the perversion of Kingship; Oligarchy of Aristocracy; and Democracy of Polity. Tyranny is a government by a single person directed to the interest of that person; Oligarchy is directed to the interest of the well-to-do; Democracy is directed to the interest of the poorer classes. …
… The course of the argument thus appears to show that the factor of number—the small number of the sovereign body in oligarchies, or the large number in democracies—is an accidental attribute, due to the simple fact that the wealthy are generally few and the poor generally numerous. … The real ground between oligarchy and democracy is poverty and riches.2
It must be remembered here that when Aristotle speaks of democracy, he is speaking of a perversion of polity. As such, he sees democracy as the worst form of government. Ideally, he said, we should have a mixed form of government, with elements of monarchy, aristocracy, and polity. Every societal class should be represented in some way.
The relationship between the universal and the particular, between laws with direct connection to natural law and those which are merely positive laws implemented by people in their various circumstances and needs, leads to a central struggle in Aristotle’s point of view:
The blueprint view of rules (to which Plato adhered completely) successfully expresses their impersonality and stability [central to the view of law as the voice of reason to an otherwise random and passion-driven human nature], but excludes any possibility of adjusting law to circumstance. The signpost view of rules (which Aristotle developed) allows for flexibility, but at the cost of destroying the impersonality and stability of law.1
In other words, the central purpose of law (bringing stability to an otherwise random human nature) seems to require it to be impersonal and unchanging, but if through practical reasoning we change the law to adapt to various human circumstances, then have we not reintroduced the human and random element of law we were trying to compensate for?
This is not the only challenge brought to the fore by Aristotle’s point of view. Letwin explains,
Aristotle did not succeed … in resolving another problem raised by Plato. By describing law both as a pattern for ‘the good life’ and as the bond of a polis, characterized by the diversity and independence of its members, he produced a sharper version of the tension between Plato’s two senses of justice. … In other words, we have inherited from the ancient Greeks two ideas of law, one as a means to preserving peace among heterogeneous associates and the other as a means to achieving perfection. …
By his more thorough exploration of the idea of law, Aristotle clearly exposed the conflict between the conception of law as a set of noninstrumental rules setting conditions that make possible a peaceful communal life, and the conception of law as a set of instrumental rules for shaping a particular kind of life and bringing about certain substantive consequences.1
Subsequent philosophers will draw upon various parts of the philosophies of Aristotle and Plato. Plato presented two different points of view; one was the beginning of social contract theory, as championed by Thomas Hobbes. Law is a human agreement, Hobbes, designed to help us get along, that we are obligated to obey because of mutual agreement, or social contract.
The other view Plato presented is a rendition of natural law theory, and described law as a divine order in the sky that is articulated by the philosopher-king. Marcus Cicero developed this idea, but borrowed from Aristotle the belief that everybody has an innate knowledge of the divine law. He argued that all laws that differ from this universally known divine law are not even real laws, but only the instruments of men in rebellion against divine law.
Aristotle tried to reconcile the two worldviews by pointing out the distinction between theoretical and practical reason; people can encode an abstract divine law into human instruments applied to unique circumstances. Thomas Aquinas further developed this distinction in his philosophy of law, and he showed different ways in which the divine order can be applied to particular circumstances. Thus, Cicero, Aquinas, and Hobbes each developed various parts of the philosophies presented by both Plato and Aristotle.
1. Robin Letwin, On the History of the Idea of Law
2. Aristotle, Politics
3. Aristotle, Ethics