Cursory Investigations into Aristotle's Natural Law (Draft)

European Academy of Legal Theory – LL.M. in Legal Theory and Global Law MACIEL, Otavio S. R. D. Cursory Investigations into Aristotle’s “Natural Law”. Draft of a paper for the EALT, published in Academia.edu. Frankfurt am Main, 2015 §1 – Aristotle’s Critique to the Sophists and Relativism I open with a long quotation of the excerpt we will be analysing today: “Of what is politically just, one part is natural, the other legal. The natural one is the one that has the same force everywhere and not because it does or does not seem to have it, whereas the legal is the one where at the start it makes no difference whether it enjoins one thing or another, but once people establish it, it does make a difference—for example, that a mina is the amount of a ransom, or that a goat should be sacrificed and not two sheep. Further, what is legally just includes both laws passed for particular cases (for example, that sacrifices be offered to Brasidas) and enactments in the form of decrees. Some people think, though, that all cases of legal justice are like this, since what is natural is unchangeable and has the same |25| force everywhere, just as fire burns here and in Persia; whereas what is just they see as changing. This is not the case, however, but in a way it is. Among the gods it is presumably not at all this way, but among us, while there is such a thing as what is natural, everything is nevertheless changeable. All the same, we do find what is natural and what is not natural here. But of the things that admit of being otherwise, it is clear what sort are natural and what sort are not natural but rather legal and conventional, if indeed both are similarly changeable. And the same distinction will apply in other cases. For the right hand is naturally stronger, yet it is possible for everyone to become ambidextrous”. (Aristotle, Nicomachean Ethics, V.7, 1134b 15-35) In the après-mentioned text, Aristotle is referring to the Sophists when he is saying that “some people think that all rules of justice are merely conventional”. The sophists were known since Socrates and Plato to be the defenders of a radical relativism regarding everything in social aspects, such as justice and morality. In the subject of justice, perhaps the most classic example is found in Plato’s Republic, when the sophist Thrasymachus states that “justice is nothing other than the advantage of the stronger” (Republic, I, 338c). Other sophists, such as Gorgias and Protagoras, were seen as “merchants of the truth”, that taught what they knew to whomsoever paid them. Both Socrates and Plato – and later Aristotle himself – criticized the sophists vehemently. Socrates himself (if such thing is possible to say) criticized them due to their errors in rigorous logical reasoning; whereas Plato was convinced that there were universally and absolute criteria for beauty, truth, virtue that transcended all sophistic relativisms. Aristotle will criticize them for the reasons here to be further explained. §2 – Is Aristotelian natural law immutable? To explain Aristotle’s theory regarding law and justice, one must know that φυ α is not directly translated into the modern usage of the term “natural law”. What modern Europeans called “natural law” is a product of centuries of Christianity and medieval traditions that are behind “secular” modern ideas, such as Hobbes’ or Locke’s. Since everybody is a creation by the Christian god, there should be a common structure “from top to bottom” that would shape everybody’s soul and mind in the direction of the one possible universal truth about what is justice and moral rectitude. It is a methodological and ethical requirement to properly understand Aristotle’s natural law that we unclothe ourselves from any scholastic or modern meanings that might have been correctly or wrongfully attributed to him. Aristotle criticizes the sophists because he believe their view of law is too unspecific to generate proper knowledge. He agrees that laws regarding specific things vary from place to place, but just as “fire burns here and in Persia”, there should be something that could constitute a substantial genus for the many speciēs of justice. The reasoning of the sophists is too provincial inasmuch they take humans and the cosmos as separated from each other. In some sense, they do see differences in constitutions in Persia or Sparta and Athens, but that does not mean that α φυ is just related to wherever or whosoever the humans enacting them are. In a criticism of posterior scholasticism and modernism, Aristotle could also say that, with this observation, he did not mean that there is a mandatory “up to bottom” concept of justice that is derived from Middle Eastern religious convictions, but rather, in a way that could perhaps almost satisfy a Kantian mind, with a set of conditions of possibility of thinking justice as such. Of course, Kantians and their affiliates deny the possibility of knowing the things in themselves, but this way of putting Aristotle’s metaphysical conception of justice is much more suited to his own Weltanschauung than those, whose posterior traditions tried to force their ways into his original doctrine. Against Plato, for example, Aristotle defended that the were not eternal and immutable, rather structured in a very complex hylemorphic way with the actual world. That does not mean, as well, that things like the Earth or the Sun are going to change significantly while we humans exist. However, in his religious background, the forces of the Gods were ever-changing and undergoing battles and conspiracies and such other cosmic events. The “age of Gaia” was not something to be measured by finite minds of mortals, but that does not mean that the are unchanging – some of them change in tectonic or cosmic velocities that are untraceable to the classic Greek mind. As the nature is this very complex set of cosmological-metaphysical hylemorphic substances, the that help constitute them are naturally embedded with the preconditions of their processes in the nature in general. This later is going to be interpreted by Leibniz through his revival of the Pythagorean concept of the monads, for example. However, as a Christian, Leibniz thought that these changes (or “foldings and unfoldings”) are “pre-programmed” by the Christian god, and not by their own natural processes in-the-world, which is Aristotle’s original heathen way to understand this. We can speak about a universal from “bottom to up” in Aristotelian metaphysics, which would be a categorization of many species of things, or parts, that refer to this universal. For example, in Hesiod’s Theogony, the “ultimate universal” is Chaos itself, which does not invalidate that the Twelve Olympians, in later aeons, are now the twelve universals that rule over the present cosmic epoch. In some sense, we can anticipate some modern consequences in post-Kantian philosophy that knowledge of these things is human-made for humans and therefore nothing else is safe to inquire. But Aristotle himself was not that narrow-minded and was well aware of the general natural (or “transcendental” in a Schellingian way) requirements for things surging in this nature as experienciable entities as such, justice being one of them. In this sense, Aristotle does not consider natural law immutable in a way Plato could have done. It is, however, a very specific set of possibilities and criteria that themselves are extremely hard to change, just like a mountain range or the blooming processes of a flower. Curiously enough, for the Greeks, Themis as the law, a Titaness, was much more intimidating and overwhelming than her daughter with Zeus, the Goddess Diké. The latter was usually represented as a young woman with the scales of balance, as opposed to her mother’s literally titanic weight. Closer to the mortals than a Titaness, justice was more appealable and tangible than the universal laws of Themis. For Aristotle, this left to mortals a sense of natural justice that is not “ordained by nature”. Without the Themis/Diké explanatory paradigm, speaking of natural justice not ordained by nature might seem as a colossal logical mistake for the western father of logic. However, this is a paralogism brought by different conceptions introduced by later Middle Eastern mythologies and problematic Roman appropriations through the centuries. Without proper translation or cultural anthropological care, the distinction between this tenuous balance between Themis and Diké was lost in absolutizing theologies or careless translations. § 3 – Aristotle’s Law between the Natural and the Positive After everything that was said, α φυ may be expressed in more positive terms. If we think about an ever-dynamic nature such as the Greeks once did, we are going to say that natural law is not immutable. However, it would be a little disheartening to say that engineers that construct buildings need to worry about the continental drift o their calculations because America or Africa are moving. That would sound absurd for everyday practices. So, in a cosmic sense, nature law is mutable, but a mortal-specific concept of justice could remain logically and rationally similar inside an eidetic regionality for a long time. What can indeed change is our perception of this through a proper and more adequate usage of our categories to understand nature now better than what we did earlier – which does not mean nature radically “changed” in this case, but our rationality got “wider”. Clifford Angell Bates Jr., from the Institute for the Americas and Europe at the University of Warsaw has an interesting input as to the relation between nature and law in Aristotle’s thought: “From this picture of the Π α/regime, we now come to ask – what role does law play here? The clear teaching of Aristotle on the nature of law is that law is something that is shaped by the regime (Π α) of the political community and not a form of political community. For Aristotle, and Plato and Socrates as well, laws are authoritative opinions about what is just and right of a given political community. Laws are the particular expression of what a given political community holds to be what is justice and the right way of living and shaping the life of the whole community. Now given that law would be the city’s/political community’s authoritative opinions (or α – which in Greek means right/correct opinion) about what is just, the relationship between law and justice, is akin to the relationship between what is by nature (φ ) and convention/law ( between what is the true (α ), as well as the relationship α) and what is opinion ( α). While the just is always the target of what law aims at, law as law is more like α (an opinion) rather than the truth of what nature holds to be the just simply. (Bates Jr., 2013, p. 62) This gives us a very interesting way to see how Plato and Aristotle can supplement each other. If the “positive law” is the correct opinion about the “natural law”, it must be justified through correct logical reasoning and attention to the nature of that which we speak. This resonates Theaetetus’ definition of truth in the eponymous Platonic dialogue, 202c: “truth is true opinion justified” or “true judgement with an account” with varying translations. In positive terms, meaning, in legal terms, this would be reflected on the proper tending to distributive and commutative justice and ensuring a good political constitution (monarchy, aristocracy or polity) as opposed to their decayed forms (tyranny, oligarchy or democracy). It means finding the true nature of things as they are themselves in nature without appealing to “up to bottom” ideologies born from superstitions, political domination or fundamentalisms. A good law, in “positive” Aristotelian terms, will respect all these hypercomplex factors that constitutes this tenuous balance amongst all these fragile concepts to interweave a law that will help the community to fulfil its υ α α goals. Bibliographical References ARISTOTLE. Nicomachean Ethics; transl. C.D.C. Reeve. Indianapolis: Hackett, 2014 BATES JR. Clifford Angell. ‘Law and the Rule of Law and its place relative to Politeia in Aristotle’s Politics’ in. HUPPES-CLUYSENAER, Liesbeth; COELHO, Nuno M. M. S. Aristotle and the philosophy of Law: theory, practice and justice. Springer: Dordrecht, 2013