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Justice as Lawfulness and Equity as a Virtue in Aristotle's Nicomachean Ethics

Published online by Cambridge University Press:  09 January 2017

James W. Guest II
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Abstract

This essay examines Aristotle's account of justice as a virtue in the Nicomachean Ethics by considering two related parts of it: Aristotle's elevated account of justice as lawfulness and his description of equity as a virtue. I focus on moral rather than legal questions by emphasizing Aristotle's identification of justice as lawfulness with complete virtue, and a broad sense of equity as superlatively good character. Some of the more difficult passages in book 5 prove to be tied together by the question of the goodness of justice and I argue that Aristotle points to a specific confusion in this regard characteristic of virtuous people. I conclude that Aristotle's critique of our ordinary opinions about justice offers crucial, albeit limited, support for the superiority of the contemplative life announced at the end of book 10.

Type
Research Article
Information
The Review of Politics , Volume 79 , Issue 1 , Winter 2017 , pp. 1 - 22
Copyright
Copyright © University of Notre Dame 2017 

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References

1 Salem remarks that book 5 is “easily the most confusing book in the Ethics” ( Salem, Eric, In Pursuit of the Good: Intellect and Action in Aristotle's Ethics [Philadelphia: Paul Dry Books, 2010], 72 Google Scholar). Pakaluk quips that one could say, “somewhat perversely, that Aristotle's definition boils down to: ‘Justice is seeking justice with justice’” ( Pakaluk, Michael, Aristotle's “Nicomachean Ethics”: An Introduction [New York: Cambridge University Press, 2005], 182 CrossRefGoogle Scholar). Burger supplies a chart intended to help the reader keep straight the manifold distinctions among the forms of justice ( Burger, Ronna, Aristotle's Dialogue with Socrates: On the “Nicomachean Ethics” [Chicago: University of Chicago Press, 2008], 223–24CrossRefGoogle Scholar). Kraut lists a number of reasons a reader might be dissatisfied by book 5 with a view to responding to them in the rest of his chapter ( Kraut, Richard, Aristotle: Political Philosophy [New York: Oxford University Press, 2002], 98–101 Google Scholar).

2 Most interpreters focus on what they take to be Aristotle's struggle in NE 5.1–5 to make justice conform to his understanding of virtue as a mean ( Polansky, Ron, “Giving Justice Its Due,” in The Cambridge Companion to Aristotle's Ethics, ed. Polansky, Ron [Cambridge: Cambridge University Press, 2014], 151–79Google Scholar; Pakaluk, Aristotle's “Nicomachean Ethics”; Kraut, Aristotle: Political Philosophy; Curzer, Howard, “Aristotle's Account of the Virtue of Justice,” Apeiron 28, no. 3 [1995]: 207–38Google Scholar; Williams, Bernard, “Justice as a Virtue,” in Essays on Aristotle's Ethics, ed. Rorty, Amélie Oksenberg [Berkeley: University of California Press, 1980], 189–99Google Scholar; Kelsen, Hans, “Aristotle's Doctrine of Justice,” in What Is Justice? Justice, Law, and Politics in the Mirror of Science: Collected Essays [Berkeley: University of California Press, 1957], 110–36Google Scholar). Others take Aristotle to be pointing to the limits of justice as a mean condition ( Tessitore, Aristide, Reading Aristotle's “Ethics”: Virtue, Rhetoric, and Political Philosophy [Albany: State University of New York Press, 1996]Google Scholar; Collins, Susan, Aristotle and the Rediscovery of Citizenship [New York: Cambridge University Press, 2006]Google Scholar; Burger, Aristotle's Dialogue with Socrates).

3 This is the position held by Hardie, W. F. R., who introduced the terms of the debate in Aristotle's Ethical Theory (Oxford: Clarendon, 1968), 23 Google Scholar. See also Kraut, Richard, Aristotle on the Human Good (Princeton: Princeton University Press, 1989)Google Scholar and Lear, Gabriel Richardson, Happy Lives and the Highest Good (Princeton: Princeton University Press, 2004)Google Scholar. In-text citations of the Nicomachean Ethics refer to Aristotle, , Ethica Nicomachea, ed. Bywater, Ingram (Oxford: Oxford University Press, 1894)Google Scholar.

4 See Cooper, John, Reason and Human Good in Aristotle (Cambridge, MA: Harvard University Press, 1975), 104–5Google Scholar, 113; and Bruell, Christopher, “Aristotle on Theory and Practice,” in Political Philosophy Cross-Examined: Perennial Challenges to the Philosophic Life, ed. Pangle, Thomas L. and Lomax, J. Harvey (New York: Palgrave Macmillan, 2013), 17–28 Google Scholar, particularly 20–22.

5 J. L. Ackrill (“Aristotle on Eudaimonia,” in Essays on Aristotle's Ethics, 15–33) avers that a denial of the independent or intrinsic value of moral action must have “monstrous” consequences (32); similarly Cooper, Reason and Human Good, 106–7, 149–50.

6 Ackrill (“Aristotle on Eudaimonia”) and Thomas Nagel (“Aristotle on Eudaimonia,” in Essays on Aristotle's Ethics, 7–14) are important examples. A few scholars do not accept either position. Natali, Carlo (The Wisdom of Aristotle, trans. Parks, Gerald [Albany: State University of New York Press, 2001])Google Scholar, for example, argues that Aristotle would not recognize the distinction between these two interpretations because he has a view that coherently includes components of both. Pakaluk thinks Aristotle appears to hold both of the major positions, but in a hierarchy; not without reason, he finds this result “disappointing” (Pakaluk, Aristotle's “Nicomachean Ethics,” 329). See also Reeve, C. D. C., “Beginning and Ending with Eudaimonia ,” in The Cambridge Companion to Aristotle's “Nicomachean Ethics,” ed. Polansky, Ronald (Cambridge: Cambridge University Press, 2014), 15–33 Google Scholar.

7 Long, A. A., “Aristotle on Eudaimonia, Nous, and Divinity,” in Aristotle's “Nicomachean Ethics”: A Critical Guide, ed. Miller, Jon (Cambridge: Cambridge University Press, 2011), 92–114 Google Scholar; and Norman O. Dahl, “Contemplation and Eudaimonia in the Nicomachean Ethics,” in Aristotle's “Nicomachean Ethics”: A Critical Guide, 66–91.

8 For example: Tessitore, Reading Aristotle's “Ethics”; Pangle, Lorraine, Aristotle and the Philosophy of Friendship (Cambridge: Cambridge University Press, 2003)Google Scholar; Collins, Rediscovery of Citizenship; Burger, Aristotle's Dialogue with Socrates; Pangle, Thomas L., Aristotle's Teaching in the “Politics” (Chicago: University of Chicago Press, 2013)CrossRefGoogle Scholar. See Melzer, Arthur M., Philosophy between the Lines: The Lost History of Esoteric Writing (Chicago: University of Chicago Press, 2014), 30–46 Google Scholar for copious ancient testimony concerning Aristotle's “artful obscurity.” Entering into the disagreements about Aristotle's audience and manner of writing is beyond the scope of this paper, though I briefly characterize my view of the primary audience below. I have benefited most from Bruell (“Theory and Practice,” 17–20), who sharply outlines the paradoxical character of Aristotle's inquiry. See also Bartlett, Robert C., “Aristotle's Introduction to the Problem of Happiness: On Book I of the Nicomachean Ethics ,” American Journal of Political Science 52, no. 3 (2008): 677–87Google Scholar, and T. Pangle, Aristotle's Teaching, 1–24.

9 Burger, Aristotle's Dialogue with Socrates, 17–21.

10 Ibid., 20–21; see also Bruell, “Theory and Practice,” 19–22, 27.

11 Citation of the Politics refers to Aristotle, , Politica, ed. Ross, W. D. (Oxford: Oxford University Press, 1957)Google Scholar. On the problem of distributive justice, see note 23 below.

12 Contrast Nussbaum, Martha C., “Equity and Mercy,” Philosophy & Public Affairs 22, no. 2 (1993): 83–125 Google Scholar; Shiner, Roger, “Aristotle's Theory of Equity,” Loyola of Los Angeles Law Review 27, no. 4 (1994): 1245–64Google Scholar; and Zahnd, Eric G., “The Application of Universal Laws to Particular Cases: A Defense of Equity in Aristotelianism and Anglo-American Law,” Law and Contemporary Problems 59, no. 1 (1996): 263–95Google Scholar.

13 Let me assert that book 5 has two halves, each with two sections: 5.1–2, 5.3–5; 5.6–8, 5.9–11. Lockwood, Thornton (“Ethical Justice and Political Justice,” Phronesis 51, no. 1 [2006]: 29–48)Google Scholar and Young, Charles M. (“Aristotle's Justice,” in The Blackwell Guide to Aristotle's “Nicomachean Ethics,” ed. Kraut, Richard [Malden, MA: Blackwell Publishing, 2006], 179–97)Google Scholar make some helpful observations about the order of subjects in 5.6–11. As far as I have observed, commentators who spend more than two or three pages on 5.6–11 usually do so only to dwell on natural right (5.7) or decency (5.10) in isolation. I differ from Tessitore (Reading Aristotle's “Ethics,” 38–42), who argues that the second half contains three “waves” of arguments against the teaching of the first half, as well as from Polansky (“Giving Justice Its Due”), who argues that these chapters are largely a rigorous defense of the teaching of the first half. I will argue that the question of the goodness of justice runs through the whole of book 5.

14 Rosen, F., “The Political Context of Aristotle's Discussion of Justice,” Phronesis 20, no. 3 (1975): 228–40CrossRefGoogle Scholar; Ambler, Wayne, “Aristotle and Thrasymachus on the Common Good,” in Action and Contemplation: Studies in the Moral and Political Thought of Aristotle, ed. Bartlett, Robert C. and Collins, Susan D. (New York: State University of New York Press, 1999), 249–271 Google Scholar (Ambler limits his discussion to Politics 3); Collins, Rediscovery of Citizenship, 70–71.

15 Lear (Happy Lives and the Highest Good, 148), for example, passes over justice entirely: “Unlike his discussions of other moral virtues, Aristotle is more interested in mapping the structure of just actions themselves than in describing the psychology of the person who acts from justice.” Lear is sharply focused on the centrality of the fine (noble, kalon) to Aristotle's account of virtue, and that centrality is nearly absent in book 5. I will argue, however, that Aristotle's single reference to nobility as an end of just action is therefore of crucial significance.

16 Quotations are from Aristotle, , Nicomachean Ethics, trans. Bartlett, Robert C. and Collins, Susan D. (Chicago: University of Chicago Press, 2011)Google Scholar.

17 Commentators as different as Yack and Kraut suggest that Aristotle means by this that any order is preferable to none ( Yack, Bernard, The Problems of a Political Animal: Community, Justice, and Conflict in Aristotelian Thought [Berkeley: University of California Press, 1993], 106 Google Scholar; Kraut Aristotle: Political Philosophy, 106). But Aristotle may also intimate that some sense of ourselves as law-abiding is essential to our happiness both as individuals and as members of the political community.

18 Plato, Republic 343c–d and context.

19 See Salem, In Pursuit of the Good, 49–50; Bartlett, “Problem of Happiness”; and Bruell, “Theory and Practice,” 18–20. That this vision appeals to or is shared by Aristotle's audience is evident insofar as it is based on the things that “we say,” “we declare,” or “we hold,” and—still more broadly—what “everyone wishes to say,” about justice and injustice (see 1129a6, 26, 31; 1129b8, 14, 17, 28, 29; 1130a1 and 3 in 5.1 alone).

20 Bruell, Christopher, “Happiness in the Perspective of Philosophy,” in Recovering Reason: Essays in Honor of Thomas L. Pangle, ed. Burns, Timothy (Lanham, MD: Lexington Books 2010), 148 Google Scholar. Consider in this light “through them” (dia toutōn) at 1097a35–b5 and “the prize of virtue” at 1099b16–20.

21 See also Bartlett, “Problem of Happiness.” In this connection, Aristotle's reference to prayer in the initial statement about injustice is as suggestive as it is unusual (1129b1–6). Is there a connection between the choices virtuous people make and the hopefulness characteristic of prayer? Consider also the remarks about Rhadamanthus and the Graces at 1132b21–1133a5 in which Aristotle emphasizes a certain hopefulness on account of gracious giving.

22 See David Bolotin, “Aristotle on the Question of Evil,” in Action and Contemplation, ed. Bartlett and Collins, 159–69; and Collins, Rediscovery of Citizenship, 71–80.

23 This discussion of distributive justice is also Aristotle's most comprehensive reflection on the meaning and existence of the common good. Keyt, David, “Supplemental Essay,” in Aristotle, Politics Books III and IV, trans. Robinson, Richard (Oxford: Clarendon, 1995), 125–48Google Scholar; Kraut, Aristotle: Political Philosophy, 357–84; Nichols, Mary P., Citizens and Statesman: A Study of Aristotle's “Politics” (Savage, MD: Rowman and Littlefield Publishers, 1992), 53–84 Google Scholar; and Simpson, Peter, A Philosophical Commentary on the “Politics” of Aristotle (Chapel Hill: University of North Carolina Press, 1998), 132–94Google Scholar hold in various degrees that the good man and the good citizen coincide in the best regime. Ambler, “Aristotle and Thrasymachus”; Bolotin, “Question of Evil”; Bruell, “Theory and Practice,” 23–26; Collins, Rediscovery of Citizenship, 119–46; and Pangle, Aristotle's Teaching, 121–65, argue in various ways that none of the claims to rule, even in the best regime, is simply just.

24 Even the great-souled human being—the other peak of moral virtue—deems himself deserving of great things and claims the greatest of the external goods for himself: 1123b1–4, 17–20.

25 Collins, Rediscovery of Citizenship (67–90, 119–46) and Bolotin, “Question of Evil,” flesh out these tensions as they emerge in NE 5 and Politics 3. Bolotin is primarily concerned with the question of injustice. Collins focuses on the misalignment between the share of good things that is good for us as virtuous individuals and the just share according to the laws of a given regime. I am further investigating how it is that justice nevertheless appears to be somehow good for us, how it promises happiness, even or especially in such circumstances.

26 This difference between justice and the other virtues is clear if we consider where Aristotle began: genuine courage is distinguished from merely political courage precisely in that genuine courage has the noble as its end, while political courage is directed toward the good of the city and aims at gaining honor or avoiding shame (1115b17–24, 1116a16–b3). Explicit concern for ends and goods external to virtue itself is constitutive of just actions, while such concern is somewhat concealed by considering the other virtues (almost) exclusively as choiceworthy for their own sake. See also Collins, Rediscovery of Citizenship, 52–66.

27 Curzer's admirably charitable effort to understand justice in accordance with Aristotle's “architectonic of the mean” requires him, admittedly, to coin a vice that Aristotle nowhere mentions (meionexia—desiring less than one deserves), and to introduce an account of nemesis that Aristotle briefly mentions in book 2 and never develops (Curzer, “Virtue of Justice,” 220–21, 236–38). But given that Aristotle himself has no qualms about introducing hitherto nameless virtues and vices, it is hard to see why he would not have taken up this elegant solution if he intended to adequately defend justice as a mean between two vices.

28 For an interpretation of what is just without qualification, see Richard Bodeüs, “The Natural Foundations of Right and Aristotelian Philosophy,” in Action and Contemplation, ed. Bartlett and Collins, 69–103, particularly 72–75.

29 See also Collins, Rediscovery of Citizenship, 89–90; and Burger, Aristotle's Dialogue with Socrates, 104.

30 In almost every use of the term outside 5.10, epieikês has this much broader meaning of “a refined person” or “an impeccably virtuous person” in contrast to a base one. See especially 1128b21–31, as well as 1102b10, 1128a18, 1159a22, 1167b1, 1172b11 and 1175b24. I would not insist that every use of epieikeia suggests more than what we still think of as decency—a well-raised and respectably good character. But some of them, among them the examples quoted in the body of the text above, do suggest a much higher standard: someone refined beyond reproach, one who perfectly conforms to what is or is held to be virtuous (consider, however, the very next use at 1132a2).

31 Contra Chroust, A. H., “Aristotle's Conception of Equity (Epieikeia),” Notre Dame Law Review 18, no. 2 (1942): 119–28Google Scholar, particularly 127; and Shiner, “Aristotle's Theory of Equity,” 1247n9.

32 Bolotin, “Question of Evil,” 168.

33 Only Burger (Aristotle's Dialogue with Socrates, 103) has registered surprise that the equitable person is somehow unjustly grasping, but she offers no interpretation of the remark. Kraut (Aristotle: Political Philosophy, 166–67), who does not mention the use of pleonektei, uses precisely this passage to explain how equity is a form of just exchange.

34 This suggestion is consistent with ambiguities in book 1 concerning the precise relationship between happiness and virtuous activity. Bruell, “Happiness,” and Bartlett, “Problem of Happiness,” articulate Aristotle's demanding standards of happiness as well as the ambiguities in his account as to whether morally virtuous activity by itself fulfills them. See also Roche, T. D., “Happiness and the External Goods,” in The Cambridge Companion to Aristotle's “Nicomachean Ethics,” ed. Polansky, Ronald (Cambridge: Cambridge University Press, 2014), 34–63 Google Scholar, which makes some similar points from a different angle.

35 Consider as well the relation of pleasure and nobility at 1104b9–11 and 1104b35–1105a1 with the remark about difficult things at 1105a9–10.

36 Alfarabi reflects something of this tension in an oracular remark on Plato's Laws: “In itself the law is venerable and excellent; it is more excellent than anything said about it and in it” (Alfarabi, Summary of Plato's Laws, in Alfarabi: The Political Writings, Vol. II, trans. Butterworth, Charles E. [Chicago: University of Chicago Press, 2015]Google Scholar, 1.17).

37 Bruell, “Theory and Practice,” 19–20.

38 Bruell argues that Aristotle's account of the presuppositions and requirements of the philosophic life is to be found in the Metaphysics ( Bruell, Christopher, Aristotle as Teacher: His Introduction to a Philosophic Science [South Bend, IN: St. Augustine's, 2014]Google Scholar).

39 Bruell, “Happiness,” 156–57.