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Aristotle's Nicomachean Ethics, Book V, and the Law of Athens

Published online by Cambridge University Press:  23 December 2013

A. R. W. Harrison
A. R. W. Harrison
Affiliation:
Merton College, Oxford
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Extract

The publication posthumously in 1951 of Professor Joachim's commentary on the Nicomachean Ethics has raised again in an acute form the question of Aristotle's use of Athenian law as the basis of his discussion of justice in Book V. We are told that Joachim In his interpretation of this book made much use of an unpublished essay of Professor J. A. Smith. It is particularly unfortunate that it has not been found possible to trace the manuscript of this essay among Professor Smith's papers since there is a good deal that is new and unorthodox in the resulting interpretation. It is also unfortunate that, because Joachim's publication was posthumous, there could be no reciprocity as between his and some other relatively recent and important discussions of the subject, especially those of H. D. P. Lee and of L. Gernet, while these last two, publishing in the same year, were ignorant of each other's work. I have felt drawn to a brief re-examination of the question because I am sceptical of the general lines of Joachim's treatment, rash though it be to differ from both him and J. A. Smith on the interpretation of Aristotle.

The specific question I propose to ask is whether in N.E. V Aristotle is basing himself at all closely on the substantive law of Athens, and my main conclusion is negative. I think that there is a tendency, particularly in Joachim, to read too much law into what Aristotle says, to force his discussion into a juristic mould into which it simply does not fit. Aristotle after all is attempting to describe a ἔζις, a tendency to feel and act in a certain way; and, close as may be in his thought the connection between the man and the citizen, we perhaps ought not tolook for too exact a mirror of the character of the good citizen in the external institutions of the city.

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 77 , Issue 1 , November 1957 , pp. 42 - 47
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1957

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References

1 Aristotle, The Nicomachean Ethics, A Commentary by the late Joachim, H. H., ed. Rees, D. A. (Oxford 1951).Google Scholar

2 Lee, H. D. P., The Legal Background of Two Passages in the Nicomachean Ethics, C.Q. 31 (1937), pp. 129 ff.Google Scholar

3 Gernet, L., Sur la Notion du Jugement en Droit Grec, Arch. d'Hist. du Droit Oriental, 1 (1937), pp. III ff.Google Scholar

4 Neither a δύναμιζ nor an ἐπιστήμη. If he had been treating the subject under either of these last two heads the case might have been different.

5 The difficulty of expressing these two distinct meanings in English seems also to have been a difficulty in Greek. Certainly Aristotle has no abstract words for the opposites of παρανομία and πλεονεξία. Perhaps this is one reason why he starts from consideration of the ‘unjust’ rather than the ‘just’ man.

6 There is a brief but illuminating discussion of justice and conforming to the law in Bradley, F. H., Ethical Studies,2 p. 211 f.Google Scholar

7 Aristotle, , Rhet. 1373b18.Google Scholar

8 It is quite probable that the procedure was originated by Solon in an attempt to safeguard his prohibition of enslavement for debt. So long as there were only δίκαι a man who was de facto a slave would have found it difficult to get his case before a court.

9 It is true, as Professor Wade-Gery emphasises to me, that the rules for φόνος were entirely exceptional. It remains for me significant that what is for us the public wrong par excellence was always the subject of a δίκη.

10 I use these ugly transliterations since translations are apt to beg the question.

11 See especially Joachim, p. 150, who adds ‘how exactly the values of the producers are to be determined, and what the ratio between them can mean, is, I must confess, in the end unintelligible to me’. Mr. M. I. Finley, in an interesting unpublished paper on Aristotle on Exchange, which he was kind enough to show me, emphasises the point that for Aristotle the fundamental inequality of men is one of the determining principles of exchange. We should not forget that ‘the economic man’ was an abstraction still in the womb of time in Aristotle's day. And he remains an abstraction: we are told, for example, that one disadvantage of being raised to the peerage is that the peer pays more for many things than the commoner.

12 Sir David Ross puts it forcibly: ‘there is no moral virtue in commercial justice as described by Aristotle. “Justice” here is not a virtue but a sort of “governor” in the economic machine which keeps exchange prices from swinging far from the actual value, for human needs, of the goods exchanged.’ Ross, W. D., Aristotle, 5th ed. (London 1949), p. 213.Google Scholar

13 This seems the best interpretation of 113234— Ross agrees with Joachim here, op. cit., p. 212.

14 The best MSS. read at 1131a2 for Mr. D. J. Allan has pointed out to me that, even if this is impossible—and it certainly seems difficult—it may have been influenced by Plato Laws IX 861 b where Plato says that all lawgivers distinguish between voluntary and involuntary wrong-doing.

15 C.Q. 31 (1937). p. 131, n. 8, following Lipsius, , Att. Recht, p. 683.Google Scholar

16 Professor Wade-Gery offers ‘involvement’ as a translation of συνάλλαγμα. This certainly eases the application to it of ἀκούσιον as an epithet.

17 I was rather startled at Lee's statement that in ἀκούσια συναλλάγματα ‘liability is incurred “involuntarily” in the sense that the citizen who commits, e.g., a theft does not do so in order to incur the liability, but would escape the liability if he could’. I had always supposed that in such cases the involuntariness lay with the victim rather than the perpetrator of the wrong. Lee's sense would, I think, only be possible if συνάλλαγμα was literally equal to obligatio.

18 l.c. above, n. 3.

19 Cf., e.g., Vinogradoff, , Outlines of Historical Jurisprudence (Oxford 1922), p. 191 f.Google Scholar, quoted by Lee.

20 Cf. also Gernet's Introduction to the Budé edition of the Laws, pp. clxxiii ff., and especially on p. clxxxi ‘l'effort de reflexion juridique est évident: ce n'est pas si souvent qu'on peut l'observer chez les Grecs. A plusieurs reprises, Aristote a touché à la question: il n'y a rien de comparable chez lui’.

21 The Greek Law of Sale (Weimar 1950), pp. 47 ff.

22 As against Gernet these first two grounds seem to me to involve a petitio principii. In his supporting note to (2) P. quotes a number of passages which ‘speak of ὰδίκήματα only'. It is significant that in one of them, N.E. 1135b2, failure to return a deposit wilfully is classed by implication as an ἀδίκημα.

23 Cf. Schulz, F. in his History of Roman Legal Science (Oxford 1953), p. 75Google Scholar: ‘Aristotle was a student remote from legal practice and its real problems’. M. Hamburger in his Morals and Law (Yale 1951) dissents violently on p. 105. It is true that they are both in the passages quoted dealing with Aristotle's treatment of ἐπιείκεια which I have not touched. So far as the topics with which I have dealt go, I can find nothing in Hamburger's book which would lead me to prefer his to Schulz's judgment.

24 Professor H. T. Wade-Gery and Mr. W. H. Walsh were kind enough to read through this article in typescript. They concurred, I think, with my general conclusion though I am far from wishing to involve them in any responsibility for the deficiencies of its exposition.