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the idea of law: Is the law a moral institution, or does its noninstrumental
character mean that it is morally neutral? In other words, is the law an
institution that imposes a unifying moral pattern on the life of all its
subjects, or does the law enable its subjects to adopt a variety of moral
patterns without coming into conflict? Throughout his discussion of law,
Aristotle associates it with a judgment of what constitutes a good way to
live. But he also says that law belongs to an association of equals who
should not and do not want to be treated as children being educated.
Acknowledging that law is associated with a certain idea of moral educa-
tion seems to deny its connection with an association of equals. And this


15 16
Ibid., X, 1180a14“24. Politics IV, 1289a“b.
26 Law anchored to a cosmic order

acknowledgment obliges Aristotle to explain how an association governed
by law can be distinguished from an alliance to defend certain interests
without converting that association into a school for adults.
Aristotle has no answer to this question. He suggests that law is to be
understood as the instrumental rules of an educational enterprise, but he
also clearly distinguishes the subjects of law from children being led by
the legislator™s guiding strings, and he nowhere addresses himself to
showing how the two views can be reconciled. He falls into this difficulty
because he defines the purpose of law as promoting “the common good,”
and identifies the “common good” with a pattern for a “good life.” He
therefore cannot assign any purpose to law without making it the instru-
ment of an educational enterprise and denying its noninstrumental char-
acter. Moreover, taking law to be an instrument for achieving the “good
life” implies that law cannot have a moral content without being a set of
directives for living. Whether this instrumentality of law is compatible
with the diversity essential to the polis and the conception of a polis as an
association of equals is not a question that Aristotle considers.
The question about how law acquires its moral quality is connected
with what at first appears to be a separate question about whether law is
made or discovered. Plato™s emphasis falls on the “discovery” of law, that
is to say, it is “found” by those who possess the quality requisite for a
legislator: the wisdom to see the eternal Idea of Justice. The scheme
presented in the Laws is the one good system of law, and every other
scheme is deficient in the character of law. The Aristotelian picture is
much more complicated because Aristotle makes distinctions of which
there are, at most, only intimations in Plato.
Aristotle™s conception of the relation between knowledge and law
resembles Plato™s insofar as he judges the desirability of law by its con-
formity to an eternal, universal standard. But this standard has a different
character because it is a principle, not a Form. In Aristotle™s picture,
legislators are not obliged to copy an ideal, but rather to articulate in
more particular and concrete terms what they have grasped as an abstract
requirement. And Aristotle accordingly distinguishes between theoretical
and practical reason. This distinction introduces an important element
into the understanding of law that is wholly absent from Plato™s discus-
sion. It enables Aristotle to articulate different aspects of the idea of law
far more completely and subtly. And whether his successors distinguish
between theoretical and practical reasoning plays a crucial role in deter-
mining their view of the nature of law, a role that has become increasingly
important in recent times.
Aristotle describes the operations of theoretical reason as “discovery”
because they consist in “intuiting” first principles. These first principles
Aristotle 27
give the legislator knowledge of the true purpose of legislation and of
the nature of the good life in the abstract sense. Thus the legislator
“discovers” for himself, or perhaps learns from a philosopher who has
discovered it, that the human soul is composed of reason and passion;
that the well-ordered soul is one in which reason governs; that the “good
life” consists in fulfilling all the capacities of man in the right order, that is
to say, in accordance with the cosmic hierarchy of being that ascends from
matter to spirit; and that law plays the same role in the community as
reason in the soul. But the actual business of making laws has a very
different character. It is a practical activity, and the legislator has to
attend to the contingent human world, where everything can be other
than it is and nothing stands still. The activity of legislating is not con-
cerned with disclosing the unchanging truth, but rather with interpreting it
for particular circumstances.
Aristotle does not attempt to explain just how the legislator moves from
knowledge of first principles to conclusions about what they require here
and now (although his account of practical reasoning might serve as such
an explanation). But he does make it clear that what is wanted in a
legislator is not only “wisdom,” or knowledge of eternal first principles,
but also “prudence” “ the ability to decide what the first principles require
in the particular community where he works. In legislating, he is
“making” rules in accordance with “discovered” knowledge of eternal
truths. The substance of law is therefore always made. And by the same
token, it is also “conventional,” that is to say, not fixed by “nature,” but
changes from one place and time to another. Because the circumstances of
different communities, or even of the same community at different times,
are bound to vary, there can be no single perfect set of laws. As the work
of legislating is a practical activity concerned with the contingent world,
the rules it makes are bound to change with the circumstances for which
they are intended.
The twofold character of law is described by Aristotle as if there were
two sorts of law, which he calls “particular” and “universal.” Particular
law “is that which each community lays down and applies to its own
members”; universal law “is the law of nature.” Because “everyone to
some extent divines” this “law of nature,” we can know that it “really is,”
Aristotle says. And because of this divine element in human nature, there
is a “natural justice and injustice that is common to all, even to those who
have no association or covenant with each other.” This is the law to which
Antigone refers, Aristotle reminds us, when she refuses to obey the ruler
of her city. In this passage in the Rhetoric, Aristotle states the heart of
what has become known as “natural law theory.” What is distinctive and
crucial in this statement is Aristotle™s articulation of the postulate
28 Law anchored to a cosmic order

on which the idea of “natural law” rests “ that “there really is . . . a natural
justice and injustice that is common to all” that “everyone to some extent
divines.”17
That everyone can “divine” the natural law follows from the definition
of man, common to Plato and Aristotle, as a compound of reason and
passion or of spirit and matter, or as a rational animal. This under-
standing of human nature implies that the rational or spiritual element in
man is a participation in the ruling principle of the universe, and that
the universe is a cosmos ordered by a rational and divine principle of
which man™s reason is a fragment. Aristotle makes it clear that men can
claim to have knowledge of an unchanging “natural law” because they
share in the divine reason that rules the universe, and this belief postulates
a universe that incorporates within itself its divine ruling principle. In
short, the idea of natural law rests on assuming that God is neither
beyond and outside his creations nor incomprehensible, but is rather
immanent in human reason.
Because Aristotle understands human life to have two aspects, one of
which is “natural” and unchanging and the other “contingent” and “con-
ventional,” he distinguishes two varieties of justice. One is “natural,”
which “everywhere has the same force” and “does not exist by people™s
thinking this or that.” The other is “legal” and is originally “indifferent,”
but “when it has been laid down is not indifferent.”18 In making this
distinction, Aristotle was arguing against two sorts of opponent “ those
who insisted that justice is immutable and therefore “has everywhere the
same force,” and those who said that justice is whatever the laws ordain
and therefore denied that the moral quality of law could be judged by a
universal standard. Aristotle maintained that “legal justice” must be
distinguished from “natural justice” and that this distinction must be made
in all aspects of human life because life is governed by both “nature” and
“convention”: “And in all other things the same distinction will apply;
by nature the right hand is stronger, yet it is possible that all men should
come to be ambidextrous. The things which are just by virtue of con-
vention and expediency are like measures; for wine and corn measures are
not everywhere equal, but larger in wholesale and smaller in retail
markets.”19
But Aristotle™s distinction between “natural” and “conventional” just-
ice is confusing because he uses “conventional” in two different senses and
relates law to the “immutable principles of justice” in two different ways. In

17
Aristotle, Rhetoric I, 1373b, in The Complete Works of Aristotle, ed. Jonathan Barnes,
vol. II (Princeton, NJ: Princeton University Press, 1984).
18 19
Nicomachean Ethics V, 1134b18“20. Ibid., V, 1134b33“1135a3.
Aristotle 29
one sense, “conventional” means “indifferent by nature.” When the law
determines weights and measures, no one system can be said to conform to
“immutable justice” more than another because these matters are “natur-
ally indifferent.” They enter the realm of “justice” only when they are made
the subject of law. Other matters, however, are not “indifferent” by nature.
Therefore, what the law determines may be said to accord more or less well
with the immutable principles of justice. And about such matters, two
different questions may be asked: What is “legally just?” and How well
does “legal justice” conform to “natural justice?” Here, what is “legally
just” is “conventional” in the sense that it may differ from one community
to another, but all such legal systems are nevertheless subject to being
judged by an unchanging standard.
Aristotle™s failure to distinguish clearly between these two senses of
conventional justice prevented him from giving a clear answer about the
obligation to observe the law. Where the subject of “legal justice” is
“naturally indifferent,” the obligation would seem to be absolute, for
there is no standard other than the law to which one could appeal. But
in matters where “legal justice” can be required to conform to “natural
justice,” the “divine” element in men that gives each person natural
knowledge of this higher justice would seem to give every person the right
to refuse, as did Antigone, to observe an “unjust” law.
Although Aristotle appears to approve of Antigone™s stand, he denied
that citizens had a “natural right” to ignore whatever law they found to be
“naturally unjust.” Nor could he consistently have allowed such a right
without denying the “practical” and “contingent” character of the law.
For if law cannot be deduced from first principles, but involves know-
ledge of things that may be other than they are, there can be no indisput-
able knowledge of what constitutes “just law.” And if there is no such
indisputable knowledge, allowing citizens to defy whatever they might
find undesirable in the law would be tantamount to destroying the force
of the law altogether, as Socrates had argued.
This difficulty is ignored by Aristotle. Those passages that bear on it
are uncharacteristically ambiguous:
Now some think that all justice is of this sort [legal], because that which is by
nature is unchangeable and has everywhere the same force . . . while they see
change in the things recognized as just. This, however, is not true in this
unqualified way, but is true in a sense . . . with us there is something that is just
even by nature, yet all of it is changeable; but still some is by nature, some not by
nature [if we are asked to say which is which]. It is evident which sort of thing,
among things capable of being otherwise, is by nature, and which is not but is
legal and conventional, assuming that both are equally changeable . . . thus things
which are just not by nature but by human enactment are not everywhere the
30 Law anchored to a cosmic order

same, since constitutions [on which law depends] also are not the same, though
there is but one which is everywhere by nature the best.20
The same ambiguity appears in another passage, in the Politics: “We
have to distinguish two senses of the rule of law “ one which means
obedience to such laws as have been enacted, and another which means
that the laws obeyed have also been well enacted. (Obedience can also be
paid to laws which have been enacted badly.)”21 Nor does Aristotle give
a more clear-cut answer when he says in the Nicomachean Ethics: “for the
acts laid down by the legislative act are lawful, and each of these, we say,
is just . . . the law . . . commanding some acts and forbidding others;
and the rightly framed law does this rightly, and the hastily conceived one
less well.”22 Aristotle™s distinction between “natural” and “legal” justice
is clear enough. But what follows from recognizing this distinction for
the obligation to observe the law remains obscure. Aristotle did not
find a satisfactory answer to the question that he had addressed: How
can we acknowledge the subjection of law to “natural” standards without
denying an obligation to observe the law?
Within the law itself, however, Aristotle distinguishes quite clearly
between two different aspects “ the general and the particular. He adds
to the Platonic account a picture of law as descending from principles of
nature, through constitutions and particular laws to judicial decisions.
This picture endows the law with an important new attribute “ that its
rules may be more and less abstract, and that the relationship between
these more and less abstract rules has a systematic character.
The most general aspect of law is what Aristotle calls “the constitution”
and defines as the “organization of offices in a state, by which the method
of their distribution is fixed, the sovereign authority is determined, and
the nature of the end to be pursued by the association and all its members
is prescribed.”23 The question about the “natural justice” of a commu-
nity™s laws applies to its constitution because the “constitution is the way
of life of a citizen-body.”24 This view of the constitution is what makes the
ambiguity in Aristotle™s view of natural and legal justice so important.
For if it is the constitution that is to be judged in accordance with an
eternal ideal, it would follow that in none but a perfect community would
there be any obligation to obey the law. Although Plato does not say this,
he does describe constitutions other than the ideal as “mere imitations” of
it: “Some are more perfect copies of it; others are grosser and less


20 21
Ibid., V, 1134b24“1135a6. Politics IV, 1294a.
22 23
Nicomachean Ethics 1129b13“26. Politics IV, 1289a.
24
Ibid., IV, 1295a“b.
Aristotle 31
adequate imitations.”25 But this is not what Aristotle says. Although he
discusses different sorts of constitutions and concludes that some are
“wrong” or “perverted” and others “just,” he also emphasizes that “in
regard to constitutions generally, we have to inquire which constitution is
desirable for which sort of civic body,” and he goes on to say that “It is
possible, for instance, that democracy rather than oligarchy may be
necessary for one sort of civic body, and oligarchy rather than democracy
for another.” He points out that there are many varieties of each consti-
tution “ “there is not a single form of democracy, or a single form of
oligarchy, but a number of varieties of either” “ from which it follows that
“the same laws cannot possibly be equally beneficial to all oligarchies or
to all democracies.” That there are many different varieties of consti-
tutions must be borne in mind, Aristotle says, “in order to be able to enact
the laws appropriate to each.”26
All of this suggests that Aristotle would consider it wrong, that is to
say, “unjust,” to try to impose an ideal constitution on every community.
Justice in Aristotle™s view is never a matter only of discovering the pattern
of perfection. It requires that the conditions of this world be considered
and that the impossible not be attempted. The legislator must consider
two different questions: Which is the best constitution? and What sort
of constitution suits what sort of civic body? Both questions must be
taken into account because a constitution is just only insofar as it con-
forms to an ideal, but the ideal constitution may be impossible to realize
in real cities, because what is practicable will differ from one city to
another. The good lawgiver and the true statesman must therefore have
their eyes open not only to what is absolutely best, but also to what is best
in relation to actual conditions. And an essential attribute of the “best
possible” rules is that they are acceptable to those subject to them because
the rule of law does not consist in the mere existence of a set of rules, or
even of good rules; the rules must be obeyed.
In making particular laws, as distinguished from a constitution, the
legislator must consider another kind of question about the relation of
particular laws to the constitution: “whether any provision runs contrary
to the principles and character of their constitutions as actually estab-
lished.”27 The conformity of laws to the constitution is part of “legal
justice,” and no one may claim a right to violate the constitution because
he finds it undesirable. Aristotle did not describe a constitution as a
charter of basic “rights” as we are inclined to do today. Nor did he

25
Plato, Plato™s Statesman 297c, ed., trans. J. B. Skemp (New Haven, CT: Yale University
Press, 1952).
26 27
Aristotle, Politics IV, 1289a“b. Ibid., II, 1269a“b.
32 Law anchored to a cosmic order

indicate any procedures for correcting “unconstitutional acts.” Never-
theless, he clearly distinguished between a constitution and particular
enactments and required that the latter conform to the former. The true
statesman may try to move his community to a better condition by
reforming the existing constitution, but he is obliged to observe the
constitution as it stands.28
The law is not then just a collection of rules, but a systematic structure,
consisting of more and less abstract aspects, which are to be shaped and
judged by different criteria, and which are of varying degrees of steadiness
and carry different degrees of obligation. Although Aristotle says little
about the possible conflicts that may arise among these different aspects
of law, or about the different qualities required to deal with them, he
unequivocally denies both that legislating is merely a matter of enacting a
pattern discovered in the sky and that every man has a right to disobey a
law when he finds that it conflicts with “natural law.”
The importance of distinguishing between the general and the particu-
lar in law is emphasized by Aristotle also in relation to the difference
between rules of law and decisions in disputes about the meaning of these
rules in particular cases. Aristotle makes it clear that law consists of
general rules that do not indicate what should be done here and now by
opposing laws to “decrees” which, he says, are related to laws as “par-
ticulars to their universal” and are “a thing to be carried out in the form of
an individual act.”29 That is why, Aristotle explains, “the exponents of
this act are alone said to take part in politics.” Two other aspects of the
difference between laws and decrees are indicated in the Rhetoric. For
one thing, “laws are made after long consideration, whereas decisions in
the courts are given at short notice, which makes it hard for those who try
the case to satisfy the claims of justice and expediency.” But more import-
ant and indeed crucial is the fact that “the decision of the lawgiver is not
particular but prospective and general,” whereas decrees decide “on
definite cases.” Furthermore, such judgments are likely to be obscured
by personal interests and prejudices.30
Aristotle accordingly contrasts the judgment of the legislator to the
decrees made by the public assembly on “definite cases.” As the conse-
quences of such decrees are immediately evident, the members find it
28
The importance of constitutional law for Aristotle is generally denied. The common view
is that of McIlwain: “Whatever the phrase ˜an unconstitutional law™ might have meant
for Plato or for Aristotle, if he had ever used it, it would never have meant a law void on
account of unconstitutionality; and, while a ˜constitutional law™ might conceivably have
meant one concerned with the frame-work of the state, it could never have been a
˜fundamental™ law in our sense of that phrase.” (C. H. McIlwain, Constitutionalism
Ancient and Modern [Ithaca, NY: Cornell University Press, 1940], 38.)
29 30
Nicomachean Ethics, VI, 1141b23“28. Rhetoric I, 1354b6“8.
Aristotle 33
difficult to be disinterested: “They will often have allowed themselves to
be so much influenced by feelings of friendship or hatred or self-interest
that they lose any clear vision of the truth and have their judgment
obscured by considerations of personal pleasure and pain!”31 The oppos-
ition between laws and decrees is also at the heart of Aristotle™s distinction
between the two different forms of democracy, though in both, the
majority decides. A politeia is ruled by law and is therefore a just form
of government. But in democracies where demagogic leaders refer “all
issues to the decision of the people,” decrees are substituted for laws and
there “is no constitution.” For “Decrees can never be general rules [and
any real constitution must be based on general rules]. . .” Where “popular
decrees are sovereign instead of the law,” the people act as “a single
composite autocrat made up of many members, with the many playing
the sovereign, not as individuals, but collectively.” Where law is sover-
eign, “the magistrates and the citizen body should only decide about
details.”32 In other words, law consists of general rules, and a public
decision that does not take the form of a general rule, however many
may have participated in making it, is not a law.
Although he addresses himself more precisely than Plato did to con-
sidering the nature of the law™s generality, Aristotle does not find it easy
to explain just how “decisions about details” are related to the general
rules that are laws. He speaks sometimes as if the law were a set of
instructions telling magistrates how to think about the questions
that come before them.33 At other times, Aristotle suggests that the
judge™s decision is different in kind from the legislator™s, as when he
says that a judge should decide only about whether “the alleged fact is
so or is not so, that it has or has not happened,” because such questions
cannot be foreseen by the legislator. A judge must therefore “decide
for himself all such points.”34 But Aristotle also describes laws as if
they were generalizations about what it is proper to do in most cases,
which suggests that the judge usually has only to “apply the law” in a
mechanical fashion, though occasionally he has to supply what the law
has omitted to say.
Throughout his discussion of the law™s generality, Aristotle takes it for
granted that the law is at odds with the real world because “the matter of
practical affairs is of this kind from the start.” Because “In those cases . . .
in which it is necessary to speak universally, but not possible to do
so correctly, the law takes the usual case,” the legislator necessarily


31 32
Ibid., I, 1354b10“11. Politics IV, 1289a.
33 34
Ibid., III, 1287a“b. Rhetoric I, 1354a29“31.
34 Law anchored to a cosmic order

over-simplifies. But even though there is always a possibility of error
because of an exceptional case, “it [the law] is none the less correct.”
Aristotle was constrained to recognize the possibility of “error” because
he likened the law™s generality to an “averaging” of cases. Whatever
deviates from the “average case” therefore must produce an error. But
he displayed discomfort with this formulation in his insistence on the
“correctness” of the law. The error that is possible is not in the law, nor
again in the legislator, but in the nature of the act to be dealt with. It is the
stuff of action itself that has from the start this variable quality. Correct-
ing the “errors” of law consists in adding to the law what the legislator
had left out of it. Whether this is always necessary, Aristotle does not say,
but at least in some cases the “gap” would seem to be unavoidable
because of the nature of practical reason and the contingency of human
affairs: “When the law speaks universally, then, and a case arises on it
which is not covered by the universal statement, then it is right, when the
legislator fails us and has erred by over-simplicity, to correct the omission
“ to say what the legislator himself would have said had he been present,
and would have put into his law if he had known.”35
Though he does not clearly specify the nature of “gaps” in legislation,
Aristotle explicitly recognizes yet another way in which the law may fall
into error. Circumstances may have changed since the enactment of a rule
so as to produce results quite different than the legislator had intended. If
the conditions that led to the enactment of the law have become “obso-
lete,” the law must be amended by judicial discretion.36 All such “gaps” in

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