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unruly and changing variety of individual wants to order by directing
them in conformity with the rational principle that governs the universe
16 Law anchored to a cosmic order

and transforms it into an ordered cosmos. Thus Plato suggests that nomos
is derived from nous (understanding)15 and says that while pain and
pleasure act as “the cords, or strings, by which we are worked; they . . .
pull us with opposite tensions in the direction of opposite actions . . . a
man must always yield to one of these tensions without resistance, but
pull against all other strings “ must yield, that is, to that golden and
hallowed drawing of judgment which goes by the name of the public law
of the city.”16
This argument implies that the legislator must have a special sort of
knowledge that transcends the human world. It is knowledge of something
eternal, of the eternal form of justice, which he must endeavor to copy in
framing the laws. Only a state ruled by lawmakers who possess such
knowledge may be said to possess “a real constitution.”17 Here the ques-
tion about the obligation to observe the law is turned by Plato into a
question about how to ensure the “justice” of law. Against the Sophists,
who denied that there is a fixed, non-human standard for law, Plato
argued that rules can qualify as law only if they are “written copies of
scientific truth in the various departments of life they cover, copies based
as far as possible on the instructions received from those who really possess
the scientific truth on these matters.”18 Law-making then becomes an
activity of discovery rather than creation. And we are told that the law
must be obeyed not because, as in the Crito, it cannot be infringed without
destroying the city, but because “there can be no claim to possess wisdom
greater than the wisdom of the laws.”19 It follows that the obligation to
obey the law depends on its justice, and there can be no obligation to obey
a rule that is “unjust.”
That this conclusion in the Statesman contradicts Socrates™ position in
the Crito is not its only oddity. In both the Republic and the Statesman,
Plato makes clear that if true wisdom were available to the ruler, he could
use this knowledge to do what is correct in all the contingencies of the
human world, which ideal would be far superior to the rigidity of law. But
this means that to see law as a copy of an eternal reality necessarily leads
to self-contradiction because the knowledge needed to make law renders
the making of law superfluous, indeed harmful. For if human legislators
could know the correct answer for all contingencies, they could decide
each question as it arose. There would thus be no need for rigid rules of
law that, by virtue of being rules, are necessarily defective.


15 16
Plato, Laws IV, 714a. Ibid., I, 644e“645a.
17 18 19
Statesman 293d“294a. Ibid., 300c. Ibid., 299c“d.
Plato 17
This difficulty is acknowledged indirectly in what Plato says about
the impossibility of finding in the human world a true statesman. The
philosopher king of the Republic is an ideal ruler, not a real one. In the
Statesman, Plato lowers the requirement so as to suggest that the super-
iority wanted in legislators is of the sort that can be found only in the few
rather than in the many: “in no community whatsoever could it happen
that a large number of people received this gift of political wisdom and the
power to govern by pure intelligence which would accompany it. Only in
the hands of the select few or of the enlightened individual can we look for
that right exercise of political power which is itself the one true consti-
tution.” Nevertheless, the Stranger and the young Socrates conclude that
such “right exercise of political power” is not to be expected, and they
agree in the end with the Sophists, who argued that no standards for law
could be shown to be universally, eternally, and indisputably correct, and
that without such standards, there is no rational ground on which men
might refuse to obey the laws of their city. This conclusion is accepted by
the Stranger when he says that the survival of law depends on “strict
adherence to a rule which we admit to be desirable though it falls short of
the ideal,” the rule that “none of the citizens may venture to do any act
contrary to the laws, and that if any of them ventures to do such act, the
penalty is to be death or the utmost rigor of punishment. This is the justest
and most desirable course as a second-best when the ideal we have just
described has been set aside.”20
In short, Plato presents us with two distinct views of law. One, con-
tained in the Crito (and some parts of the Statesman), suggests that the
law is a set of noninstrumental, general, highly determinate and necessar-
ily somewhat defective written rules, created by an association (a polis),
purely for the sake of maintaining the association, and which (despite
their defects) are to be obeyed by the members for the sake of peaceful
coexistence. The second view, which appears most sharply in the Republic,
the Gorgias, and parts of the Statesman, suggests on the contrary that the
laws are to be obeyed only because (and hence presumably only to the
extent that) they are the products of and embody a human wisdom that is
the nearest thing in the changing world to the unchanging verities of
Reason.
The difficulty of reconciling Plato™s two different conceptions of law
appears also in the aims that he attributed to legislators in the Statesman
and the Republic. In the Statesman, Plato says that the rulers “may purge


20
Ibid., 297b“e.
18 Law anchored to a cosmic order

the city for its better health by putting some of the citizens to death or
banishing others. They may lessen the citizen body by sending off colonies
like bees swarming off from a hive, or they may bring people in from
other cities and naturalize them so as to increase the number of citi-
zens.”21 In the Republic, the legislator is likened to a shepherd, a goatherd,
a horsebreeder, and also to a weaver, because his job is to separate out the
different components of the community, to dispose of the useless or
detrimental ones, and then to arrange them into a harmonious whole.
The ideal described in the Laws is the same: “The first-best society, then,
that with the best constitution and code of law, is one where. . . all means
have been taken to eliminate everything we mean by the word ˜ownership™
from life; if all possible means have been taken to make even what nature
has made our own in some sense common property, I mean, if our eyes,
ears, and hands seem to see, hear, act, in the common service; if, more-
over, we all approve and condemn in perfect unison and derive pleasure
and pain from the same sources “ in a word, when the institutions of a
society make it most utterly one, that is a criterion of their excellence than
which no truer or better will ever be found. . . .”22 Although this picture is
described as an ideal, which suggests that it can never be realized in
practice, it is the only account that Plato gives of the legislator™s task.
He is obliged to ask himself, Plato insists: “What is my intent?” “Do I hit
the mark in this, or do I miss it?”23
But if the object of law is to create a community in which everyone is
like one another, the city ruled by law acquires a character very different
from that which Socrates describes in the Crito. It is not an association
whose members are independent individuals bound together only by their
observation of the same laws, but an association with a particular sub-
stantive object: the creation of a certain sort of person. In other words, the
polis acquires the character of an educational enterprise designed to
produce and impose an all-embracing discipline. The object of the laws
is to teach virtue to the individuals who constitute the city. Rules of law
are instrumental imperatives, a set of directions for how to behave. They
direct behavior and distribute censure and praise in such a way as to
ensure that all the members of the community will pursue the right
satisfactions in the right order. Thus, the law directs individuals to marry
between thirty and thirty-three years of age, to take meals in common, to
have a certain amount of physical exercise; the laws even decide in what
manner the funeral rites of each class of citizen should be celebrated, and
what marks of respect should be assigned to them. In short, the law


21 22 23
Ibid., 293d“e. Laws V, 739b“d. Ibid., V, 744a.
Plato 19
becomes a detailed pattern for how to live. It directs individuals to
perform certain functions in the city. It is an instrument for creating an
organic unity. And so it is said in the Laws that the intelligence of the
lawmaker will “knit the whole into one, and keep it in subjection to
sobriety and justice, not to wealth or self-seeking.”24
What distinguishes the law of the polis from the commands of the
tribe is not “ in this version of Plato™s account “ its formal but its
substantive character due to its being made by men who possess the
knowledge needed to direct the rest towards fashioning a virtuous unity.
As the formality that distinguishes it from custom is no longer of its
essence, the relation of law to custom changes. Custom is no longer the
antithesis of law, but rather a supplement, a mortar that fills the gaps.25
There is also a change in the relation of law to theory and practice.
Whereas in the Statesman the law is described as a prescription “in bulk”
as if it were a practical generalization, in answering the arguments of
Protogoras and Hippias in the Protagoras, Plato gives law the character
of a theoretical idea of justice. He gives this character to law also in the
Laws when he requires that every law has a preamble that justifies the
prescription and is designed to persuade those subject to the law of the
desirability of observing it. The presence of such preambles in all laws, we
are told, distinguishes them from a “dictatorial prescription”26 and makes
the law an instrument of instruction rather than coercion.
The underlying thought common to both of Plato™s views is that the
idea of law is an answer to the fundamental difficulty of the human
condition: how to bring some fixity into a world from which change
and multiplicity cannot be eradicated. But in attempting to resolve the
conflict between the mutable reality of the human world and the need for
fixity and reason, Plato endows the idea of law with a highly ambiguous
character. It is not clear whether the rational character of law is due to its
being a set of fixed rules or to its conformity to a given, non-human,
standard. And this ambiguity about the rationality of law is connected
with an ambiguity in Plato™s conception of reason. For reason is seen, on
the one hand, as the governing principle of the universe and, on the other
hand, as an attribute of human beings. That the law is a product of reason
may therefore mean for Plato that it is a human artifact whose purpose is
to maintain an association that permits variety without conflict (by
providing fixed rules); or it may mean that law is a reflection of a non-
human reality whose purpose is to reduce this variety and multiplicity to


24 25
Ibid., IV, 721a“e; I, 631a“632c. Ibid., VII, 793b“794d.
26
Ibid., IV, 722c“723d.
20 Law anchored to a cosmic order

unity by imposing a substantive pattern that conforms to a given non-
human model of justice. Put another way, Plato wavers between two
meanings of justice “ one that takes justice to be the opposite of arbitrari-
ness and equates it with consistent, regular, dependable rules governing
the relations between rulers, subjects, and among subjects, which rules are
to be obeyed because they bring peace; the other identifies justice with the
“right” rules in the sense of a particular substantive pattern for living,
which are rules to be obeyed because they are “right.” In his attempt to
accept both of these conflicting meanings of justice, Plato introduced a
conflict between a formal and a substantive idea of law that all his
successors have struggled to resolve.
2
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Aristotle________________________ ___________________________________________________________________________________________________________



Aristotle, like Plato, understood the character of law by analogy with a
conception of the universe as a cosmos in which the elements of disorder
are reduced to unity by reason. Just as reason governs the soul of a human
being, so law is the source of order in communal life: “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 voice of God and reason] may thus be defined as ˜Reason
free from all passion.™”1 Moreover, Aristotle made the distinction be-
tween arbitrary government and the rule of law the foundation of his
analysis of the varieties of political life. The manner of selecting the ruler
or of apportioning offices was for him secondary to the question: Are all
public decisions subject to rules of law? Monarchy, aristocracy, and
politeia are all legitimate forms of government, Aristotle says, because
they are all ruled by law, but a democracy, where the majority decide as
they please from one moment to the next, is just as tyrannical as rule by
one man without law because in both there is the same subjection to
arbitrary will.
But Aristotle addressed himself, as Plato had not, to considering the
precise character of the order created by law. He self-consciously wrestled
with the difficulty, which appears only as a tension in the thought
of Plato, of how to answer the question: What kind of unity does law
give to a community? Plato™s view that “the greatest possible unity of
the whole polis is the supreme good” was sharply criticized by Aristotle. If
a polis “goes on and on, and becomes more of a unit,” he argued, it
“will eventually cease to be a polis at all.” It will become first “a house-
hold instead of a polis and then an individual instead of a household. . . It


1
Aristotle, The Politics of Aristotle III, 1287a, trans. Ernest Barker (Oxford: Clarendon,
1946).

21
22 Law anchored to a cosmic order

follows that, even if we could, we ought not to achieve this object: it
would be the destruction of the polis.”2 Although a polis “belongs to the
order of ˜compounds™, in the same way as all other things which form a
single ˜whole™,” Aristotle explains, it is a peculiar kind of whole. While it is
composed of a number of different parts, these parts are not strictly
speaking parts, but are wholes in themselves, because they are citizens
capable of ruling as well as being ruled. What welds these independent
individuals into a whole is the constitution to which they subscribe.
Therefore, if the constitution changes, the polis changes even though the
people remain the same. But the constitution does not create a unity in
which the parts lose their distinctiveness because the parts are not reduced
to mere organs or functions in the whole, nor are they unified by coming
to resemble one another. On the contrary, a polis is “composed of unlike
elements,” that is to say, of individuals who have many different relations
to one another “ as man and wife, parent and child, soldier and civilian,
ruler and ruled “ and who engage in many different occupations, “which
enables them to serve as complements to one another, and to attain a
higher and better life by the mutual exchange of their different services.”3
There cannot then “be a single excellence common to all the citizens, any
more than there can be a single excellence common to the leader of a
dramatic chorus and his assistants.” That is why advancing a polis to the
kind of unity that Plato advocated would destroy the essence of the polis:
“It is as if you were to turn harmony into mere unison, or to reduce a
theme to a single beat.”4
When Aristotle says that the members of the polis are made a unity by
the constitution, which “is a scheme established [in order to regulate the
distribution of political power] among the inhabitants of a polis,”5 he
implies that the law is the unifying element of a polis and that between
persons connected by law, there is a special relationship “ “justice” “
which is distinct from the kind of relationship that exists between
members of a household or tribe.6 Much that Aristotle says elsewhere
re-enforces this view of law. He speaks of law as concerned with distrib-
uting the offices required in a polis, and says that these offices are
connected with regulating the “market-place, the city-centre, the har-
bours, and the country-side”; with administering “the law-courts, the
registration of contracts, the enforcement of penalties, the custody of
prisoners, and the reviewing, scrutiny, and audit of the accounts of

2 3
Ibid., II, 1261a. Ibid., III, 1274b32, 1277a, 1261a.
4 5
Ibid., III, 1276b31, 1263a“b. Ibid., III, 1274b“1275a.
6
Aristotle, Nicomachean Ethics VI, 1134b1“15, in The Complete Works of Aristotle, ed.
Jonathan Barnes, vol. II (Princeton, NJ: Princeton University Press, 1984).
Aristotle 23
magistrates”; and finally with “the functions connected with deliberation
on public affairs.”7 In serving these functions, the purpose of the law is to
make possible a peaceful communal life. The association created by law is
“political” because its members are peers who have no necessary connec-
tions with each other and need the law only to regulate certain very
complicated relations with one another that they have willingly entered
into.
When, however, Aristotle turns to considering just how the law works
to unify the polis, he endows it with a different character. This contradic-
tion emerges from two difficulties. One is the difficulty of explaining how
the unity of a polis could be less than that of a household or tribe and yet
more than that of a military alliance, which is a mere aggregate united
only for the sake of mutual help against a common enemy. Aristotle had
to explain how law could create an all-embracing unity that would not
destroy the independence and diversity of its members. The other diffi-
culty arises from Aristotle™s insistence that the law is impersonal. Law is
preferred, he says, because it provides an impersonal answer to questions
where personal interests are involved. Since those who are in office may
try to do favors to themselves or to their friends, their subjects may prefer
to be governed by rules, just as patients who “suspected physicians of
conspiring with their enemies to destroy them for their own profit” might
be “inclined to seek for treatment by the rules of a text-book.” And for the
same reason, when physicians themselves fall ill they turn to someone else,
because they fear that their own judgment might be distorted by “the
influence of their own feelings.”8 There is, besides, a quite different way in
which law replaces personal judgments: The existence of stable rules is a
substitute for decisions made by the members of the community on how
to conduct themselves and leaves them free to devote themselves to other
activities. Thus, in a moderate oligarchy, where the members do not have
“so much property that they are able to enjoy a leisure free from all
business cares,” they prefer “that the law should rule for them.”9 But
the fact that the law is impersonal and not a means to satisfying anyone™s
interests raises the question: How can law have a substantive content or
purpose if it serves neither the ruler nor the ruled?
Aristotle™s answer to both the questions “ about how law gives unity to
the polis and what gives law a substantive content “ is shaped by a
postulate about the nature of order, which he shares with Plato, that the
cosmos, which is directed by a single rational principle to a single end, is
the model of order. This implies that if the laws are not to be merely “a


7 8 9
Politics VI, 1322“23. Ibid., III, 1287a“b. Ibid., IV, 1293a.
24 Law anchored to a cosmic order

promiscuous heap of legislation,” they must be directed “to a single
object.”10 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: “any polis which is truly so called, and is not merely
one in name, must devote itself to the end of encouraging goodness. . .
The end and purpose of a polis is the good life, and the institutions of
social life are means to that end.”11
Because the “good life” is an end that men may not renounce without
renouncing their humanity, it is a universal and eternal end and distinct
from the objectives of an alliance. But as the “good life” is an abstract end
that can accommodate a variety of concrete activities, it does not impose
a single objective on the members of a polis as does maintaining the
economy of a household. Whereas in the latter, the members are all
engaged in a single enterprise, the “good life” can comprehend a variety
of enterprises.
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 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 associ-
ation 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.”12 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.”13 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.14

10 11 12
Ibid., VII, 1324b. Ibid., III, 1280a“b. Ibid., III, 1280b.
13 14
Nicomachean Ethics II, 1103b1“5. Ibid., X, 1178b1“1180b13.
Aristotle 25
The fact that law is the public expression of the rational element that all
human beings have in common gives it impersonality and makes its
governance acceptable; although people “hate men who oppose their
impulses,” even when their opposition is right, “the law in its ordaining
of what is good is not burdensome.”15 In short, in specifying its substan-
tive content, Aristotle identifies the law with the rules of an educational
enterprise.
Although Aristotle occasionally speaks of law as if it were the instru-
ment of an economic enterprise, as when he criticizes the Spartan prop-
erty laws for having led to a decline in her wealth and power, such
remarks do not indicate more than a carelessness about distinguishing
incidental from essential attributes of law. But a serious inconsistency
does appear in another way, for Aristotle also regularly describes law as
rules for distributing the offices required to regulate the public life of an
association of equals. In this context, he implies that law sets conditions
rather than aiming at bringing about certain substantive consequences
and that the people it governs are capable of running their own lives and
should be left free to do so. This is the view of law postulated when he
speaks of the different sorts of constitutions that a polis may have. He
includes among the varieties of the polis both “democracy,” in which the
citizens are concerned above all with doing as each likes, and “oligarchy,”
where wealth is honored above all other goods, thereby suggesting that
the idea of law does not require any particular substantive content.16
By his more thorough exploration of the idea of law, Aristotle clearly
exposed the conflict between the conception of law as a set of noninstru-
mental 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 conse-
quences. In doing so, he raised a question that has continued to haunt

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