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Published online by Cambridge University Press: 20 December 2019
This paper seeks to clarify the long-standing controversy over Aristotle's relationship to the natural law tradition. The paper argues that a precondition for any adequate assessment of Aristotle's natural law credentials is a close analysis of the Nicomachean Ethics V.7 discussion of the just by nature. Such an investigation, the primary concern of section 1, reveals that Aristotle's characterization of the politically just as partly natural and partly conventional does entail that nature serves as a normative ground for just law. With this conclusion in place, section 2 then turns more directly to Aristotle's relation to the natural law tradition. Despite important differences between Aristotle's account of the normative foundations of law and those found in the paradigmatic natural law teachings of the Stoics and Aquinas, I argue, there are nonetheless features of later natural law thought on the purpose and evaluation of law which are genuinely Aristotelian in orientation.
1 Miller, Fred D. Jr., “Aristotle on Natural Law and Justice,” in A Companion to Aristotle's “Politics,” ed. Keyt, David and Miller, Fred D. Jr. (Oxford: Blackwell, 1991), 280–304Google Scholar, and Burns, Tony, “Aristotle and Natural Law,” History of Political Thought 19 (1998): 142–66Google Scholar, both offer arguments in support of significant natural law tenets in Aristotle's practical works. See also Trude, Peter, Der Begriff der Gerechtigkeit in der Aristotelischen Staatsphilosophie (Berlin: de Gruyter, 1955), 177Google Scholar; Siegfried, Walter, Der Rechtsgedanke bei Aristoteles (Zurich: Schultess, 1942), 57–62Google Scholar; Barker, Ernest, The Political Thought of Plato and Aristotle (New York: Dover, 1959), 366Google Scholar; and Von Leyden, Walter, “Aristotle and the Concept of Law,” Philosophy 42 (1967): 1–19CrossRefGoogle Scholar. Representative criticisms of the claim that Aristotle is a natural law theorist are found in Jaffa, Harry V., Thomism and Aristotelianism: A Study of the Commentary by Thomas Aquinas on the “Nicomachean Ethics” (Chicago: University of Chicago Press, 1952)Google Scholar; Mulgan, Richard, Aristotle's Political Theory (Oxford: Oxford University Press, 1977), 141Google Scholar; Yack, Bernard, The Problems of a Political Animal (Berkeley: University of California Press, 1993), 140–41Google Scholar; Lisi, Francesco, “The Concept of Law in Aristotle's Politics,” Proceedings of the Boston Area Colloquium on Ancient Philosophy 16 (2000): 47Google Scholar; Schroder, Donald D., “Aristotle on Law,” in Aristotle and Modern Law, ed. Brooks, Richard O. and Murphy, James Bernard (Aldershot: Ashgate, 2003), 37–51Google Scholar; and Corbett, Ross, “The Question of Natural Law in Aristotle,” History of Political Thought 30 (2009): 229–50Google Scholar.
2 I use “natural justice,” “natural right,” and “the just by nature” interchangeably as translations of phusikon dikaion. It needs to be remembered, however, that Aristotle's primary focus in NE 5.7 is with “the just” (external facts of “right”: to dikaion), rather than an ethical quality of persons (dikaiosunē). See Schütrumpf, Eckart, “Little to Do with Justice: Aristotle on Distributing Political Power,” in Aristotle's Politics: A Critical Guide, ed. Lockwood, T. and Samaras, T. (Cambridge: Cambridge University Press, 2015), 163–83CrossRefGoogle Scholar.
3 In Rh. 1.10 (1368b7–8) Aristotle says that particular law is written, whereas in 1.13 (1373b56) he says that particular law is either written or unwritten. This inconsistency is discussed further below. The reliability of the Rhetoric as a source of Aristotle's considered views is also discussed in more detail in section 2.
4 On the sophistic contrast between phusis and nomos see Guthrie, W. K. C., The Sophists (Cambridge: Cambridge University Press, 1971), 55–134CrossRefGoogle Scholar, and Kerferd, G. B., The Sophistic Movement (Cambridge: Cambridge University Press, 1981), 111–30Google Scholar. As Guthrie notes at 53, Aristotle's standpoint is closer to the sophists than it is to Plato on some issues. Aristotle employs or discusses the opposition between phusis and nomos in a number of places including NE 1.3 1094b15–16, 5.5 1133a30, 5.7 1134b18; Pol. 1.3 1253b21, 1.4 1254a13–15, 1.5 1254b19–21, 1255a1, 1.6 1255b13–16, 3.6 1278b33; MM 1.33 1194b32; SE 12, 173a7–30. The passage from Sophistical Refutations is particularly revealing insofar as it considers the use of the phusis-nomos dichotomy in Plato's Gorgias and the sophistic view that convention represents the majority opinion whereas the wise speak according to the standard of truth and nature.
5 As Dodds, E. R., Plato: Gorgias (Oxford: Clarendon, 1959), 268CrossRefGoogle Scholar notes, when Callicles employs the expression kata nomon ge ton tēs phuseōs at Gorgias (483e) he is “coining a new and paradoxical phrase,” albeit one anticipated by Thucydides 5.105.2.
6 Miller, Fred D. Jr., “Aristotle: Naturalism,” in The Cambridge History of Greek and Roman Political Thought, ed. Rowe, Christopher J. and Schofield, Malcolm (Cambridge: Cambridge University Press, 2000), 322Google Scholar.
7 Reeve, C. D. C., “The Naturalness of the Polis in Aristotle,” in A Companion to Aristotle, ed. Anagnostopoulos, George (Oxford: Blackwell, 2009), 512CrossRefGoogle Scholar.
8 Aquinas recognizes that many norms which are part of the ius civile (civil law) can only be rational guides to action if they are posited and that such norms are selected (determined) by relevant authorities from a range of reasonable schemes for serving the common good (ST I-II q95 a2). See also Finnis, John, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 183 and 280–89Google Scholar.
9 An interpretation along these lines is proposed by Kelsen, Hans, “Aristotle's Doctrine of Justice,” in What is Justice? Justice, Law, and Politics in the Mirror of Science (Berkeley: University of California Press, 1957)Google Scholar.
10 Burns, “Aristotle and Natural Law,” 148; Yack, Problems of a Political Animal, 233. Cf. Thornton Lockwood, “Phusis and Nomos in Aristotle's Ethics” (unpublished manuscript), 22–27.
11 Burns, “Aristotle and Natural Law,” 148.
12 Darren Weirnick, Law in Aristotle's Ethical-Political Thought (PhD dissertation, Rice University, 1998), 102. Weirnick translates nomikon exclusively as “legal.” This risks a misleading strict identification of conventional justice with positive and customary law (nomos).
13 Ibid.
14 Ibid., 112.
15 Cf. Miller, Fred D. Jr., Nature, Justice and Rights in Aristotle (Oxford: Clarendon, 1995), 122Google Scholar; Kraut, Richard, “Are There Natural Rights in Aristotle?,” Review of Metaphysics 49, no. 4 (1996): 758Google Scholar.
and Burns, “Aristotle and Natural Law.”
16 Weirnick, Law in Aristotle's Ethical-Political Thought, 102.
17 Ibid.
18 Cf. Miller's argument (Nature, Justice and Rights in Aristotle, 91) that Aristotle, while not subscribing to a modern view of subjective rights possessed in a prepolitical state of nature, “denies that individuals possess rights merely by convention” and hence can be ascribed a theory of “natural” rights that is based on natural justice and determinative for political rights. For critique see Kraut, “Are There Natural Rights in Aristotle?,” 755. As Kraut's analysis suggests, it is more convincing to argue that Aristotle has an incipient concept of rights than that “rights have a central place” in the practical works.
19 This analogy reoccurs at 1.33 of Magna Moralia. On the difference between the two accounts, see Miller, “Aristotle on Natural Law and Justice,” 286. The Magna Moralia expressly identifies the natural with what happens for the most part (hōs epi to polu).
20 Miller, “Aristotle on Natural Law and Justice,” 292.
21 Ibid., 290.
22 An insightful discussion of the issues at stake in Aristotle's defense of slavery is found in Kraut, Richard, Aristotle: Political Philosophy (Oxford: Oxford University Press, 2002), 277–305Google Scholar.
23 Aristotle notes at Pol. 7.14 1332b4 that animals can also be habituated to some extent.
24 In Politics 7 Aristotle considers in this context the size of the best city (7.4), its territory (7.5), and its access to sea and naval power (7.6). For discussion see Pavlos Kontos, “Aristotle on the Breadth of Practical Reason” (unplublished manuscript), 5.
25 David Keyt, “Three Basic Theorems in Aristotle's Politics,” in Keyt and Miller, eds., Companion to Aristotle's “Politics, ” 257; Miller, Nature, Justice and Rights in Aristotle, 191–93.
26 Kahn, Charles H., “The Normative Structure of Aristotle's Politics,” in Aristoteles’ Politik, ed. Patzig, Günther (Göttingen: Vandenhoeck and Ruprecht, 1990), 382–83Google Scholar.
27 Parts of section 2 draw on material from “Aristotle as Natural Law Theorist,” in the Research Handbook on Natural Law Theory, ed. Crowe, Jonathan and Lee, Constance Youngwon (Cheltenham: Edward Elgar, 2019), 13–30Google Scholar.
28 See Shellens, Max Salomon, “Aristotle on Natural Law,” Natural Law Forum 40 (1959): 79–81Google Scholar.
29 See Ostwald, Martin, Nomos and the Beginnings of the Athenian Democracy (Oxford: Clarendon, 1969)Google Scholar on the contextual variability of agraphos nomos.
30 Shellens, “Aristotle on Natural Law,” 72. Shellens does not offer citations for this claim.
31 See note 1 above.
32 See Jaffa, Thomism and Aristotelianism.
33 Ostwald, Nomos and the Beginnings of the Athenian Democracy, 20; Heinimann, Felix, Nomos und Physis: Herkunft und Bedeutung einer Antithese im Griechischen Denken des 5. Jahrhunderts (Basel: Friedrich Reinhardt, 1965), 59–89Google Scholar.
34 Burns, “Aristotle and Natural Law,” 142. According to Burns, Aristotle is a proponent of a “formal” conception of natural law according to which it is “a logical impossibility for positive law to conflict with the requirements of natural law.”
35 Von Leyden, “Aristotle and the Concept of Law,” 12.
36 See Gardner, John, “Legal Positivism: 5 1/2 Myths,” American Journal of Jurisprudence 46 (2001): 199–227CrossRefGoogle Scholar.
37 Von Leyden, “Aristotle and the Concept of Law,” 12.
38 Ibid., 13.
39 Murphy, M. C., “Two Unhappy Dilemmas for Natural Law Jurisprudence,” in The Cambridge Companion to Natural Law Jurisprudence, ed. Duke, George and George, Robert P. (Cambridge: Cambridge University Press, 2017), 354Google Scholar. The claim here, it should be noted, is not that the existence and content of positive law depend exclusively on normative facts: no one could sensibly deny that the existence and content of positive law depend on some nonnormative (i.e., so-called social) facts such as particular acts of legislating. Murphy's definition plausibly captures other commitments that are often associated with natural law positions. It is also distinctive of natural law positions, for example, to assert that there are certain actions which are wrong or unjust in and of themselves (mala in se) rather than mala prohibita. This commitment would seem to depend, however, on the existence of an extrapositive normative foundation, insofar as such a foundation is understood to function as a higher standard allowing for an assessment of the justice or otherwise of the positive law(s) of any particular community and also for the identification of some of its laws as “merely” conventional.
40 Jaffa, Thomism and Aristotelianism, 30.
41 For the claim that Aquinas is the paradigmatic natural law theorist see Murphy, Mark C., “Natural Law Jurisprudence,” Legal Theory 9 (2003): 241CrossRefGoogle Scholar. Strictly speaking Aquinas outlines five types of law: the “law of the fomes” refers to sensual inclinations natural to animals but also present in humans after the Fall (ST I-II q91 a5). A full comparison of Aristotle and Aquinas on the theme of natural and positive law would require attentiveness to Aquinas's account of natural and positive, and special and legal, forms of right and justice in ST II-II q 57–58 and the Commentary on Aristotle's Nicomachean Ethics 5.7. My intention here is merely to point to some pertinent differences with respect to divine normative foundations.
42 Miller, Fred D. Jr., “Aristotle's Philosophy of Law,” in A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, ed. Miller, Fred D. Jr. and Biondi, Carrie-Ann (Dordrecht: Springer, 2007), 94Google Scholar.
43 For the view that unwritten justice is part of the common law according to nature see Grimaldi, William, Rhetoric 1: A Commentary (New York: Fordham University Press, 1988), 297–98Google Scholar. For a convincing critique of this view, see Weirnick, Law in Aristotle's Ethical-Political Thought, 157–58.
44 Miller, “Aristotle's Philosophy of Law,” 94.
45 Weirnick, Law in Aristotle's Ethical-Political Thought, 157.
46 On the implications of Plato's appeal to the divine in book 10 of the Laws see Richard F. Stalley, “Plato's Philosophy of Law,” in Miller and Biondi, eds., History of the Philosophy of Law, 71.
47 The closest approximation is perhaps Physics 2.4 196a25ff. On theologikē in Aristotle see Menn, Stephen, “Aristotle's Theology,” in The Oxford Handbook of Aristotle, ed. Shields, C. (Oxford: Oxford University Press, 2012), 422–64Google Scholar.
48 Kraut, Aristotle: Political Philosophy, 203.
49 I assume here that Cicero, while a nonstandard Stoic, remains close to Stoicism on moral questions. For a more detailed exposition of the different senses of natura in Cicero's De finibus see Finnis, Natural Law and Natural Rights, 375–76.
50 Finnis, Natural Law and Natural Rights, 375–76, citing De legibus 1.55.
51 Cheery, K. and Goerner, E. A., “Does Aristotle's Polis Exist by Nature?,” History of Political Thought 27 (2006): 563–85Google Scholar.
52 Finnis, John, Aquinas: Moral, Political and Legal Theory (Oxford: Oxford University Press, 1998), 29 and 90Google Scholar. Finnis cites De anima 415a16–22 and Aquinas An. 11. 6 nn. 6–10, 111. 14 n. 9; ST 1 q 87 a 3c; 1 Sent. d. 1 q. 1 a. 1 ad 3; d. 17 q. 1 a.4 ad 4; 111 Sent. d. 23 q. 1 a. 2 ad 3.
53 Lisi, “Concept of Law,” 42.
54 The dictum is not directly attributable to either Augustine or Aquinas. See Kretzmann, Norman, “Lex Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court of Conscience,” American Journal of Jurisprudence 33 (1988): 100–101CrossRefGoogle Scholar.
55 Finnis, Natural Law and Natural Rights, 23–55, and Murphy, Mark C., “The Explanatory Role of the Weak Natural Law Thesis,” in Philosophical Foundations of the Nature of Law, ed. Waluchow, Wilfrid and Sciaraffa, Stefan (Oxford: Oxford University Press, 2013), 5Google Scholar.
56 Finnis, Natural Law and Natural Rights, 364.
57 Murphy, “The Explanatory Role of the Weak Natural Law Thesis,” 5.
58 Ibid.