INTRODUCTION
One of the main reasons why an understanding of the relationship between ‘natural right’ and ‘conventional right’ must be high in the hierarchy of activities we engage in, lies in that its consideration brings to light the difficult issues of relativity between, and criticality of, different political communities. The extremely compressed passage in which Aristotle takes up this relationship is full of difficult lines, lines which are themselves enlightened by sometimes perplexing examples. In it, one could say, Aristotle seems to move back and forth from one kind of right to the other; uncomfortably trying to delineate the space which lies between them.
The tension between both kinds of right leads to an array of difficult questions which come to light precisely out of the opposition in which they stand. On the one hand, if political justice is wholly conventional, one is necessarily led to ask; is it not then doomed to be variable to the extent that, what a given community considers to be just, is just as valid as what any other does? Will the question of justice not be reduced to a prior question, namely, ‘whose justice’ are we speaking of; justice becoming then a relative term? This is more problematic because if, as Aristotle holds, law shapes our very being, then, “stepping aside” to critically assess the regime which seeks to foster precisely its own outlook, seems a rather difficult, if not impossible, course of action. In other words, if one’s tradition determines to a large extent what one considers to be just, how is it possible for “us” to reach some kind of ‘objective’ standpoint from which our own and other conventional conceptions of right can be judged? Must tolerance be reduced to a passive acceptance of difference, independent of the ethical considerations and violations underlying such diversity?
On the other hand, if one holds onto a natural view of political justice, then although one can claim to be able to assess all conventional right by measuring it to a common ground, a standard to which all political communities have access in virtue of something common to all humans (e.g. rationality), still the position is not itself without difficulties. First of all that ‘common something’ seems contested by the different traditions themselves. But besides this, if all perspectives can be assessed by way of this standard, still, how to figure out and agree upon what is the fundamental nature of such standard is by all means not an easy task. Is it grounded on a transcendental ideal to which only few have access? Is it to be found in the natural order of things? Does it follow alone from divine revelation? Is it ultimately, particularly for us moderns, simply a matter of promoting and defending some group of basic inalienable human rights and duties (perhaps to be supplemented by different kinds of group differentiated rights for minorities)? Or, if it is indeed based on a distinctively human capacity such as reason, how is one to conceive of this rationality —- be it that of classical thought or that of the Enlightenment—— other than by acknowledging it as part of a specific tradition which has come to understand itself in such ‘rational’ terms? What guarantee do we have that when assessing other cultures by way of some form of natural right, we are not simply, though disguisedly, projecting the values of our own? Finally, what is the relationship between philosophy, born out of a particular tradition, and the search for this critical space in which the city, and all cities for that matter, come to be questioned? (*1)
The complexity and importance of the issue under consideration is well put by Strauss:
“If there is no standard higher than the ideal of our society, we are utterly unable to take a critical distance from that ideal. But the mere fact that we can raise the question of worth of the ideal of our society shows that there is something in man that is not altogether in slavery to his society, and therefore, that we are able and hence obliged to look for a standard with reference to which we can judge the ideals of our society as well as any society” (NRH, 3) (*2)
To question is part of our nature, but indeed it would be rather absurd to try to answer all these mind-boggling puzzles in a short essay like this. Nevertheless they stand as avenues that can be pursued, some of which we will begin to pursue here only tentatively. But before proceeding, I would like to make two cautionary remarks. The first deals with the idea that whatever conception of natural right is ultimately available to us moderns, its grounding cannot proceed from the imitation of a given hierarchical ordering of a purposeful universe which we admire in its beauty and inherent goodness; an external teleological reality which, by shaping ourselves according to it, allows our own human beauty and goodness to flourish. Nature for us moderns is not a mirror we model ourselves upon. As Charles Taylor puts it with respect to the creative imagination found in art’s capacity to transfigure reality:
“it becomes possible for us to see a crisis of affirmation as something we have to meet through a transfiguration of our vision, rather than simply through a recognition of some objective standard of goodness. The recovery may have to take the form of a transfiguration of our stance towards the word and the self, rather than simply the registering of external reality” (SotS, 448) (*3)
The second prefatory point is that, even though the search for such a ‘objective’ standpoint ——-which is somehow or other implied in the notion of natural right—– is of great importance in judging and differentiating unjust regimes, as well as individuals, from just ones, that this ‘natural’ standard can ultimately be found is another matter altogether:
“our aversion to fanatical obscurantism must not lead us to embrace natural right in a spirit of fanatical obscurantism. Let us beware of the danger of pursuing a Socratic goal with the means, and the temper of Thrasymachus. Certainly the seriousness of the need of natural right does not prove that the need can be satisfied” (Strauss, NRH, 6) (*4)
Having said this, and in order to get somewhat clearer on the relationship between conventional and natural right, I would like to divide the essay into two sections. In the first I will look at the difficult and compressed passage in the Nicomachean Ethics where Aristotle deals directly with the subject matter; chapter seven of the Book on Justice. There I will try to follow Aristotle’s own struggle with the issue by looking and trying to elucidate, as far as possible, the arguments and examples given to us readers. In the second section I will take up two of the most prominent interpretations of the passage; one by Saint Thomas Aquinas, the other by Marsilius of Padua. I will there try to, briefly and in outline, show that neither does justice in their reinterpretation to the complexities found in the first section where the text by Aristotle was considered. To conclude this section, I will likewise question some of the arguments put forward by Strauss in his search for a middle road between these conflicting interpretations.
SECTION I: ARISTOTLE AND THE MUTABILITY OF BOTH NATURAL AND CONVENTIONAL RIGHT IN POLITICAL JUSTICE.
Aristotle is the first to point out that when speaking of the just, one can do so in many ways. For instance one can consider, either general justice (1129b12 ff.), or a part of this general form, that is to say, particular justice and its distributive and corrective aspects. Some even speak of justice in terms solely of the relation of the parts of the soul and its health (1138b1 ff). Furthermore, one can speak of justice with reference to the different domains in which relationships between agents take place. In this sense political justice is not the same as the justice appropriate to the household; relations between citizens, for Aristotle, are not the same as those of inferior kind that hold between husband and wife, master and slave, and father and son (MM, 1194b5 ff.). (*5)
Besides, it is not just any social organization which meets Aristotle’s criteria for being considered political. This is why in the chapter immediately preceding the one dealing with the relationship between conventional and natural right, Aristotle points out the conditions for the politically just. It
“obtains between those who share a life for the satisfaction of their needs as persons free and equal … hence in the associations where these conditions are not present there is no political justice between members, but only a sort of approximation to justice” (1134a26-8)
This seems rather puzzling. We have not even begun to attempt to determine what natural right might be, and yet Aristotle has already set up a criteria for the consideration of the political, namely, equality and freedom between participants who share at the same time in being ruled and ruling (1134b16-19). Now, if political justice develops under these conditions, and if it is true that “if anyone wants to make a serious study of the fine and just things, or of political science generally, he must have been well trained in his habits” (1095b2-4), then truly few regimes will be able to carry out such an inquiry, namely those in which such equality and freedom already exists, in some sense or other. Presumably a tyranny could not then reflect on the politically just precisely because the conditions for its appearance are in it wholly lacking. But let us look closer then at this very specific type of justice, that is to say, political justice.
In the Magna Moralia, even though one finds the bipartite differentiation between the just things, on the one hand by nature, and on the other by convention, there what is considered to be politically just is reduced only to the realm of the conventional:
“so the just according to nature is better than the just according to convention, but what we are inquiring about is the politically just; and the politically just is that which is by convention, not that which is by nature” (MM, 1194a1-4)
It seems as though in that work Aristotle is skeptical of finding any such natural justice within the political. But this position is altogether different from what Aristotle himself holds in the corresponding passage of his Nicomachean Ethics.
The conflict between both is strikingly made evident from the very first line where we are told that the division between natural right and conventional right IS set, unlike the previous quotation, within the overall discussion of political justice (1134b18-19). Perhaps why this difference exists can be somewhat understood by looking at the passage more closely.
In it, Aristotle first defines natural right as “that which has everywhere the same power and does not depend on being opined or not”. The “naturalness” of natural right resides precisely in its being independent both of spatial and temporal differences —-it is in a sense transhistorical and transcultural——, and of the multiplicity of conflicting opinions held by different humans. Natural right is truly something unchanging, or so it would seem. Suspiciously, Aristotle here gives no example to elaborate upon.
Conventional right, in contrast, can be seen in three interrelated forms. First it refers to “that with regard to which in the beginning it makes no difference whether matters are this or that way, but once it is established one way or another it does make a difference”. An interpretation could be as follows. For instance, in the downfall of a regime or in its early periods of consolidation, some aspects of conventional right can go in many different possible ways. It is ‘up for grabs’, so to speak. But once it has been set down as law, it determines (to a large extent in a negative form) what is to be considered just and what unjust. And here, unlike the case of natural right, Aristotle aids us somewhat by providing some examples. These refer specifically to laws regarding some aspect or other of war, the ransom of prisoners, and of religion, the number and nature of animals to be sacrificed. (Would it be too exaggerated to read these then as portraying how relativity appears foremost and most dangerously in the realm of the defense of one’s community and in religious strife?) Perhaps another example of this type of conventional right could be the national symbols of different states. Colombia’s or Canada’s flag could presumably have been otherwise, but now that they have been set in place it does make a difference if someone were to attempt to modify them in one way or another. In the religious realm for instance one could say it makes a great difference if one is brought up as Catholic or as Muslim (*6).
As a second field of conventional right Aristotle points to legislation that takes place in particular cases; private laws which for instance require sacrifices for outstanding, honour-deserving individuals such as the sacrifices for Brasidas, a spartan general (Penguin, 371). Conventional law then seeks to put forward legislation which acknowledges the sacrifices of some distinguished people who, for the sake of the political community, have sacrificed themselves and therefore “ought to be given some reward, honour or dignity. It is those who are not satisfied with these rewards that develop into despots” (1134b6-8). A similar contemporary example of this type of ‘conventional right’ would be the changing of the name of a city street to remember a given person ——for instance, in Montreal, the ‘Rene Levesque Avenue’—– however this example is not closely linked to law itself. (*7)
Finally the third category is that of ‘things passed by vote’. Although it is not clear to me what Aristotle refers to, perhaps one could think of cases such as the referendum in Quebec. If it had gone through, matters would now stand a quite different light. Aquinas sees this category of conventional right as referring to the decrees of judges (1022). If this is the correct way to understand it then examples of these type of decisions can be seen in multicultural societies where different conventional understandings require the transformation of the positive laws already set in place. As Parekh puts it:
“In all these cases person’s cultural background made a difference to his or her treatment by the courts. The law was pluralized and departures from the norm of formal equality were made in different ways and guises, showing how to reconcile the apparently conflicting demands of uniformity and diversity” (Parekh, BCCD, 200)
Having given us a first look at the differentiation between natural and conventional right, Aristotle then proceeds to argue against those who believe that the politically just is only what is conventionally just; a position with which he himself sides, as we saw in the Magna Moralia. Aristotle continues his argument as follows: “but in the opinion of some, all things are such on the ground that what is by nature is unchangeable and has everywhere the same power, just as fire here and in Persia burns, but they see that the just things change”. Fire burns equally in Greece and in Persia, but what the Greeks and the Persians take to be ‘the just’, varies considerably. And furthermore, if what we said at the outset concerning the conditions of political justice is true, then Persia does not meet the conditions for speaking of political justice at all. This because of their not sharing in freedom and equality. Having chosen Persia in the example, therefore seems not to have been by luck.
Presumably Aristotle would go on to tell us, finally, just precisely how this standard, which natural right is, works. But to our disappointment this is precisely what Aristotle proceeds NOT do; or at least fully. Instead he tells us that all natural right is in fact just as changeable as conventional right. Or, he pauses, almost always, he says. That is, natural right seems unchangeable in reference to the gods, the celestial beings which for the Aristotle, as Aquinas reminds us (1026), are unchanging. But to our surprise once again the statement is qualified; even in divine matters the unchangeability of natural right is only ‘probably’ so. In this sense, as we shall see, Aristotle’s Gods do not fit well with Aquinas’. But leaving this question aside, for our purposes it is important to point to the changeability that Aristotle makes characteristic of natural right; the tranformability of that standard through which we aim somehow at ranking conventional understandings of the just. As Aristotle puts it, among us humans (*9): “while there is something by nature, it is ALL changeable and yet nevertheless there is that which is by nature and that which is not by nature”. The variability of natural right does not preclude its remaining to a degree invariable. The standard, if it exists at all, would then seem to resemble not an iron pole, but a more flexible structure such as that of a rubber band; capable of transforming itself without necessarily becoming something other that that which it is.
And while we stand rather perplexed by all of what has bee said, Aristotle, one feels almost jokingly, tells us that all this ought to be as clear as daylight: “now, which is by nature of the things that can be otherwise and which is not, but is instead conventional and by agreement, since both of them are equally changeable is CLEAR”. Well perhaps it is not. However, unlike the previous definition of natural right which excluded variability, this new qualified perspective is indeed, finally, followed by an example. But it is an extremely odd example, one which seems rather removed from the discussion of the politically just. It goes like this: “by nature the right is stronger though it is possible for everyone to become ambidextrous”. Few words which make one wonder what Aristotle is getting at.
Our first reaction could be to say; but look around you, there are many left handed people, for instance my brother –in–law, for whom the left hand is by nature the strongest. Is their left hand not ‘by nature’ the strongest? So Aristotle, what you are saying is not at all true (*10). Unfortunately our first objection seems made irrelevant if one looks at the corresponding example found in the Magna Moralia. There the same example is put forward, but with the notion of superiority left on the side: “yet nevertheless the left is such and such by nature, and the right is no less better than the left, even if we were to do everything with the left as with the right” (MM 1199b31-34). Aquinas understands this example as showing that natural right is valid in the majority of cases, but in some few cases it does not hold (1029); a position to which we shall return in the following section (*11). But perhaps there is another way to comprehend this flexibility of natural right, while having its kind of flexibility not partaking of the same type which characterizes that of the conventional.
One imaginative, perhaps too imaginative, way to do interpret the example, though this is not what Aristotle himself says, would be as follows. By nature most of us are indeed right handed, and some left handed. But being left handed or right handed takes no extraordinary effort on our part; we are so equipped by nature one way or the other. Aristotle himself has told us that we are equipped as humans in just the very same way not only as regards the different faculties of the soul, namely, the vegetative, the desiderative and the rational (1102b28ff), but likewise in the case of the potentiality to develop the moral virtues of which he says we are “constituted by nature to receive them” (1103a29). But although this is true under normal conditions, still few seek to modify what is given to us by nature, transforming it so that new, more complete organizations, can be achieved. Becoming ambidextrous, through a habitual practice involving throwing with the other hand (MM 1194b27), is just such a practice which changes what is, without making it something wholly different. In a similar way, the passage alluded to above, the one concerning the moral virtues, culminates by telling us that “their full development is due to habit”. Becoming virtuous transforms us in that, what we are potentially capacitated to do, reaches its utmost level of actualization. If one can imagine those who have indeed attempted to become ambidextrous, one can imagine the patience and personal commitment required in order to achieve that end which represents a flourishing towards higher natural completeness. And this end goes beyond utility and survival, though perhaps ambidextrous people will be more helpful under certain circumstances, for instance in the case of strikers in soccer who, because they can use both legs to hit the ball, can score more goals. This end involves, in a sense, a healthier realization, a completeness comparable to works of art (1106b9). It would be a little like becoming fully bilingual, not an easy matter, assuming that is that one learns the language not simply as a child. Unfortunately our imaginative analysis seems far removed from what Aristotle argues in the passage considered, for the passage as a whole focuses principally on political justice, not on individual health. (*12) But perhaps some regimes are healthier than others; some regimes fighting against all odds in order to become more readily ambidextrous.
Aristotle goes on to exemplify how, in contrast to the variability of the natural, so too the conventional has its own kind of variation. The conventional is now defined as that which “is by agreement and what is beneficial”. The appearance of the beneficial, which had not entered into the argument previously, seems to determine natural right contrastively as that which is not primarily concerned with utility, though it can incidentally be useful in different ways (as we saw in the case of the soccer striker). And once more, to clarify the issue, Aristotle gives us an obscure example regarding measures. A similar example, if I understand the issue correctly, would be that of the beneficial, and agreed to, use of human standards such as that of the metric system. We all agree what a 100 meters are, we sense it is beneficial to agree thus, particularly in Olympic races. However the conventional nature of this standard, the metric one, comes to the fore when compared to other systems like the US system and its use of feet. Unfortunately these examples do not refer to lawful arrangements and in this way would seem to differ somewhat from what Aristotle tells us. But if this example is not the best, Aristotle himself has provided us with one in the whole discussion of Justice, that of the use of money by communities. Even the name itself of money, nomisma reflects its conventionality: “this is why money is so called, because it exists not by nature but by custom, and it is in our power to change its value or render it useless” (1133a29-31).
The fact that Aristotle somehow senses that his own example concerning measures is far removed from political justice, surfaces in the line which continues his argumentation. Relativity and conventionality are present not simply in measurements, but principally in political regimes: “the just things that are not by nature but merely by humans are not the same everywhere, since the regimes are not”. It is precisely here where political justice seems to be destined to a relativity based upon the different views of what conventional right is, or might be. But this is not new to Aristotle. He has pointed to this difficulty from the very start of the Book on Justice, particularly in his consideration of justice in the general sense. There justice as the lawful, which aims at securing happiness for the members of the political community, was partly understood as follows:
“the laws prescribe for all departments of life aiming at the common advantage whether of all the citizens, or of the best of them, or of the ruling class, or on some other basis. So in a sense we call just anything that tends to produce or conserve the happiness (and constituents of happiness) of a political association (1129b16-21)
If law so varies from regime to regime, then it seems that the search for a natural right from which to critically assess the different interpretation of the role of law is ruled out as utopian. This troubling conclusion is in fact made worse because of the fact that within each type of regime there exists fallibility as to the setting down of the laws themselves: “the law commands some kinds of behaviour and forbids others; rightly of the law is rightly enacted, but not so well if it is an improvised measure” (1129b28-29). There would then be different types of happiness, one here, one there; all equally unquestionable. Or so it would seem.
Aristotle knows of this variability of conventional law, but he knows too of the necessity of providing a human standard from which judgment can be passed on diversity. This is why the passage we have been analyzing continues precisely by calling forth such criteria. The complete passage reads: “similarly the just things that are not by nature but merely by humans are not the same everywhere, since the regimes are not, THOUGH there is only one that is everywhere according to nature the best”. We stand perplexed for Aristotle seems to want it both ways. He wants to argue that what is merely by humans is not by nature, and presumably all political justice concerns the human, and, therefore cannot be by nature. And yet there is such a regime, he claims, that is by nature the best of possible regimes; and presumably if this regime has anything to tell us humans, then it is of human form. Perhaps natural here could be understood by looking back at the example of the ambidextrous individual. Just as by nature we are all born either right handed or left handed, so by nature, according to Aristotle, we humans are political animals; we live in political associations where alone the good life can be achieved. However all existing regimes deviate to different extents from the best human level of political fulfillment and health; one must therefore seek to understand the complex circumstances in which such deviations have come about.
But if the development of the ambidextrous person requires a level of personal commitment and dedication that is undertaken by few; this effort presumably would be much more difficult to obtain at the level of the whole political community. A tension arises between those transforming themselves in order to become ambidextrous, and the need to transform the political conditions in which becoming ambidextrous rises as a human possibility. As Aristotle puts it:
“As for the education of the individual, that which makes him simply a good man, we must determine later whether it falls under political science or some other, because probably it is not always the same thing to be a good man and a good citizen” (1130b25-30)
But indeed it would seem too that the healthier the regime’s commitment to political justice, the healthier the individuals partaking of that standard; and vice-versa the healthier the individuals, the healthier the political association itself. (e.g. 1129a16-21). Furthermore. the fact that this standard is not a transcendental object independent of the way we humans live in our always imperfect political communities, is hinted too also in the Ethics. The final lines of the work tell us of an investigatory procedure that must be followed to complete our understanding of the realm of the ethical by way of a study of the political:
“So let us first try to review any valid statements … that have been made by our predecessors; and then to consider, in the light of our collected examples of constitutions what influences are conservative and what are destructive of a state …. and for what reasons states are well governed … for after examining these questions we shall perhaps see more comprehensively what kind of constit ution is the best ….” (1181b13-21).
What is by nature the best is not an immutable given, but the end object of a comparative study of the different existing regimes which remain always wanting due to the very complex circumstances in which they develop. In this sense political justice by nature is transformable though it is not made completely anew each time new information is gathered as regards the different conventional political communities. (*14) Respect for multiplicity does not signify not being able to reach out to certain criteria which the best possible polis ought to follow; an issue taken up at length in the Politics.
SECTION II: AQUINAS AND MARSILIUS OF PADUA ON ARISTOTLE: IS A MIDDLE ROAD CONCEIVABLE?
Two of the most important interpretations of the passage we have attempted to clarify have been those of Saint Thomas Aquinas and Marsilius of Padua. Their positions are so divergent that for Strauss they can be said to exemplify the opposition between the ‘theological’ and the ‘philosophical’ interpretations of natural right (Strauss, PAW 96-7). Are these two views thus condemned to the very incommensurability which we have argued an account of natural right seeks to counter at the level of the political? Is one more in accordance with the Aristotelian position as articulated in the text itself? Or do both take from Aristotle what fits their personal mold, so that the Aristotelian perspective is, though transformed, not Aristotelian in a strong sense? Can one, as Strauss proposes, seek some middle road between what, perhaps in the final analysis turn out to be not two extremes in a continuum, but rather two altogether different fields of human understanding? Perhaps by looking critically at each of the authors in turn, we might gain some insight, however slight, on these difficult questions.
Aquinas’ outlook of the world and ourselves is that of one of the major strands to be found within the Catholic tradition; the other being that of Saint Augustine. Because of this, Aquinas superimposes a Catholic mold over the pre-Christian Aristotelian interpretation of natural right. And this does not go by unnoticed when one compares it to the original text in Aristotle. One of the places where this recasting of Aristotle’s wording becomes more salient can be seen in what Aquinas takes to be the relationship between the principles concerning speculative matters, and those that serve as guides for human action in the variable realm of practical affairs. In his commentary on the Ethics he tells us that, just as in speculative philosophy:
“likewise in practical matters there are some principles naturally known as it were, indemonstrable principles and truths related to them, as evil must be avoided, no one is to be unjustly injured, theft must not be committed and so on” (1018)
The ethical, according to Aquinas, deals with indemonstrable principles which we humans ought to take as starting points and guidelines by way of which we can determine the just or unjust nature of actions, both at the level of the individual and that of the political community. Just as we cannot prove Euclid’s most fundamental axioms, so in the realm of conduct we cannot demonstrate the validity of those fundamental principles which determine that evil, injustice and theft ought always, without exception, to be avoided. (*15)
Although it is quite true that Aristotle sometimes speaks in an Aquinas-like fashion, particularly in Book 2 of his Ethics, he nonetheless goes out of his way to clarify more fully what is set there as an introductory framework; one to be followed by different qualifications. The passage in question, which concerns the inexistence of a mean in some cases, reads as follows: “but not every action or feeling admits of a mean; because some have names that directly connote depravity, such as malice, shamelessness and envy and among actions, adultery, theft and murder ….. in either case … one is ALWAYS wrong” (1107a9-15). Though superficially on the same track as Aquinas’ argument, nevertheless Aristotle gives us much more, and much less, than Aquinas does. Aristotle never alludes to any indemonstrable truths, and besides, his longer list includes not only actions, but feelings as well. For Aristotle goodness is concerned not only with the way we act on the world and others, but also, and just as importantly, with the way we are open to this world and others with whom we share in it (1109b30).
Besides Aristotle does not leave this statement, which appears early on in the text, unqualified. Instead his different discussions ——on the difficulty of defining the mean when considered in relation to us and the action concerned, on the relationship between voluntary and involuntary action, and on his analysis of the virtues and the tension present in their being taken as ends in themselves or for the sake of something else—— rids the Aristotelian passage of Aquinas’ sense of immutability and indemonstrability. And this is no surprise to us who sense that Aquinas’ “free(dom) from hesitations and ambiguities” (Strauss, CNR) (*16), is somehow linked to the certainty offered by the presence of clear cut, and clearly articulated, divine commandments. Aquinas lacks, at times, the permanent Aristotelian consideration for the fluidity and flexibility characteristic of the practical affairs in which different human beings are involved. For Aristotle:
“questions of conduct and expediency have as little fixity about them as questions about what is healthful; and if this is true of the general rule, it is still more true that its application to particular problems admits of no precision” (1104a3-7) (see also 1094a11 ff).
(Which is of course not to say that Aristotle does not have criteria for the consideration of an action as praiseworthy or blameworthy). A clear example of the tension between both the Catholic and the Greek outlook can be seen by focusing on one of the actions to which both writers allude, namely, that of theft. For Aquinas “those actions belonging to the very nature of justice cannot be changed in anyway, for example, theft must not be commited because an injustice” (1029). Robbing is an activity that we should strive with all our might to avoid for it involves, under all circumstances, committing an unjustice. Stealing is sinful. In contrast, by taking up the Aristotelian multilayered qualifications, one could eventually come to conceive of, or be actually involved in, situations where stealing would not only not be evil, but perhaps the best possible course of action under the constraining circumstances. War sets the conditions for just this kind of exceptional undertakings. (*17)
But this reading is rather unfair to the very sensitivity which is characteristic of Aquinas’ outlook. The Catholic philosopher himself acknowledges some variability. Nevertheless it concerns not the principles (i.e. no variability in terms of natural right), but the specific actions undertaken. His interpretation of the passage on becoming ambidextrous is here, I think, revealing. He tells us: “so also the things that are just be nature, for example, that a deposit ought to be returned must be observed in the majority of cases but is changed in the minority”(1028) (which deals with part of the first definition of justice given by Polemarchus to Socrates in Plato’s Republic 331d (*18)). However, although this example does qualify somewhat what we previously said, still the principle to which this specific example alludes, is definitely not of the stronger type, the kind which merits inclusion under the Decalogue.
But no matter how the matter stands here, that which is most un-Aristotelian in the whole interpretation by Aquinas on natural right, lies in that the standard upon which such right is founded is not of human origin. Aquinas’ yardstick, though it is in fact related to human rationality ——a faculty Aquinas tells us is shared by all humans making them capable of distinguishing what is disgraceful from what is honorable (1019)—— is itself measured by a not so human standard. Reason is completed only with view to faith; natural right is superseded, or finds its fundamental expression in divine law. As Strauss puts it: “the ultimate consequence of the Thomistic point of view is practically inseparable from natural theology … but even from revealed theology” (Strauss, NRH, 164). This theological perspective retakes some of the conceptions presented by Aristotle, but informs them with a mold which at times does not fit as gracefully as one would desire. Natural right looses the ambivalence which enriched the Aristotelian perspective, and which we saw was continually present in the struggles faced in the passage analyzed. All conventional right, all political justice, can therefore be adequately compared to that standard which holds universally and equally for all. And given that its fundamental seal of guarantee lies not in rationality but rather in faith, no matter what one makes of this position, it remains true that Aquinas’ faith in the Catholic God, as contrasted to the divine in Aristotle, stands unchallenged by any appeal to reason. (*19) Precisely because of this, finding some kind of middle road between this interpretation, and Marsilius’, seems an unfortunate project to undertake. One cannot have both of them at the same time, for their standards for measuring are fundamentally of a different qualitative kind. These would stand very much in accordance to Marsilius view. But to see why this is so, one needs to consider the other side of the balance.
What Strauss calls the ‘philosophical’ interpretation of Aristotle, is carried out by Marsilius of Padua, following Averroes. While the Renaissance writer does take up some of the elements analyzed in the discussion of the Aristotelian passage, his primary objective seems to be to set itself as a radically different alternative to Aquinas’ ‘theological’ view. In that Marsilius seems —–I say ‘seems’ for, as we shall see, this is not completely so—— to set himself against a religious tradition, one finds a first parallel between him and Aristotle. The latter too sets his conception of philosophy against a traditional perspective of the divine which finds its clearest expression in the Delphic inscription found both ethics (EN 1099a26-7). However, the religious traditions which they both question, are of a very different nature.
In his attack on the view of natural right which links it to divine law, Marsilius puts forward two arguments concerning the relationship between it, and its counterpart, conventional right. In order to go through each I will designate the first the ‘as-if’ argument, and the second, the ‘plural rationalities’ argument. According to the first, natural right concerns “that which almost everyone agrees is respectable”. A statement with which neither Aquinas nor Aristotle would agree. On the one hand, for Aquinas it is precisely its immutability that which gives natural right its divine force. On the other, for Aristotle, it is precisely its being independent of opinion that which makes natural right that which it is; general agreement belongs only to the realm of conventional right. Moreover, to differentiate himself much more profoundly from the Catholic alternative, Marsilius includes under this conception the immutable laws which conform the Decalogue; obligations which are, according to Aquinas, exception-free, such as worshiping God and honouring one’s parents. What I have called the ‘as-if’ argument really gets its name it what follows position based on consent. Marsilius understands natural as being conceivable solely in a “metaphorical” sense. If one is clear about natural right, then one does not delude oneself into really believing it can be taken in the literal sense. Natural right is not univocal but equivocal; it is simply a very good intentioned belief we humans hold on to. It is neither an indemonstrable truth as for Aquinas, nor a real standard as for Aristotle.
It is particularly illuminating in understanding the difference between Marsilius and Aristotle, to look at the example concerning the fact that fire burns equally everywhere. In Marsilius its articulation is completely transformed. And this change points us back to one of the prefatory remarks I made in the introduction, namely, that the non-teleological view of the universe is the view of nature open to us moderns. As Marsilius puts it: “like the acts of natural things NOT having purpose are everywhere the same, such as fire which burns here just as it does in Persia”. Nothing would seem more foreign to the Aristotelian conception of teleological nature. For Marsilius, in a universe devoid of purposefulness, the notion of natural right cannot stem from a consideration of an external order which we seek to understand, and in so doing reach our highest potentialities. (However, it seems clear that Aristotle in his own argumentation did not lay claim to such teleology as grounding his own perspective on natural right).
The second argument, what I have called the ‘plural rationalities argument’, seems once again set primarily against Aquinas’ view of natural right; though it is likewise not wholly in accordance with what Aristotle has told us. As we saw, for Aquinas the force of natural right stemmed from the rational capacity we humans have to be able to recognize and live by the principles revealed to us by God. In stark contrast, Marsilius tells us, quite sure of himself —— he uses the words ‘of course’—- that these rational principles (not to say anything of the divine principles underpinning them), are not at all known to all humans. An affirmation which, for instance would still seem not to preclude the search for evangelization. This is so because with an effort on the part of different missionaries, all of us could be brought to finally see and abide by these standards. However, the ignorance of the ‘correct’ principles, for Marsilius, leads consequently to the much more problematic fact that they are “not admitted by all, and all nations do not concede (them) to be respectable”. Presumably those who do not admit them, as opposed to those who are merely ignorant of them, could also be brought to finally admitting them. But the history which lies behind this procedure, particularly in the case of the Catholic Church, would make us now hesitate over considering such “forceful” transformation. Natural right, and it is noteworthy that nowhere does Marsilius mention the example of the ambidextrous human, would then seem to be inexistent. Consequently, any attempt to judge these different nations would be, if not an unrealistic affair, at least a much more arduous one than either Aquina or Aristotle would allow. For Marsilius what each nation finds respectable, is precisely what each holds to be their view of conventional right. Natural right ceases to exist because as Strauss puts it:
“The effectiveness of general rules depends on their being taught without ifs or buts. But the omission of the qualification which makes the rule —— makes them at the same time untrue. The unqualified rules are not natural right but conventional right” (Strauss, NRH, 158).
Or so it would seem. What Strauss does not mention, though it is striking and reminds us of Aristotle’s ambivalence, is that Marsilius, in the end, pauses to tell us that, for the most part, we can still go on with divine law: “There are also precepts, prohibitions, or permissions in accordance with divine law which agree in this respect with human law, which since they are known in many instances, I have not given examples of for the sake of abbreviating this sermon”. But even at this level one would, following Marsilius own propositions, be led to ask; which set of divine laws are you speaking of?
As has been seen, both Aquinas’ and Marsilius’ interpretations not only stand in conflict with each other, but likewise read into, and suspiciously pass over, central elements of the Aristotelian passage analyzed. Furthermore, as we pointed out, seeking to find a middle road between these alternatives is an entreprise which seems to be blind to the fact that both stand in rather different spaces of inquiry. However Strauss has attempted to move in that direction seeking to avoid the extreme immutability of Aquinas’ position, and the extreme variability of Marsilius’. Briefly put, for Strauss natural right consists in highly particular decisions, taken in concrete circumstances. However this variability of the natural is, as in Aristotle, at the same time accompanied by an underpinning sense of what are the ethical principles: “(for) one can hardly deny that in all concrete decisions general principles are implied and presupposed” (159). An instance in which such concrete and variable decision making becomes evident, lies in those extreme circumstances in which the survival of the political community, the existence of the common good itself, is what is at stake. In such circumstances normality is shaken to the point that what becomes primary, and urgently so, is the very survival of the community itself: “in extreme situations the normally valid rules of natural right are justly changed, or changed in accordance with natural right, the exceptions are as just as the rules” (160) (*20). One could ask, however, are extreme situations the only ones in which natural right, in all its variability, appears? Is its scope then so limited as to become rather secondary? Moreover, in a given community one need ask, who is it precisely that decides what constitutes an extreme situation in which normalcy can be temporarily waived? (*21) What if the regime in question precisely seeks such appeals to set itself as unquestionable?
Strauss acknowledges these difficulties in his distancing himself from the Machiavellian conception of natural right, founded on the extreme situations themselves rather than on the normality which Aristotle takes as starting point. Moreover, Strauss points out to a critical standard which, he holds, holds universally for all conventional right:
“there is a universally valid hierarchy of ends, but there are no universally valid rules of action” (162) ….or elsewhere “the only universally valid standard is the hierarchy of ends. This standard is sufficient for passing judgment of the nobility of individuals and of actions and institutions. But it is insufficient for guiding our actions” (163).
Unlike Aquinas’ position, Strauss’ has the virtue of regaining the fluidity and transformability of natural right which characterized the Aristotelian understanding. Likewise, unlike Marsilius’ alternative it does present us, like Aristotle, with some natural standard which would allow political justice to surge above the ephimerality of conventional right. Moreover, he points to the fact that Aristotle’s hesitations stem from the multiplicity of circumstances in which human beings find themselves throughout their lives. As we saw: “questions of conduct and expedience have as little fixity about them as questions about what is healthful; and if this is true of the general urle, it is still more true that its application to particular problems admits of no precision” (1104a4-9). Furthermore, as in Aristotle the focus too is not primarily on knowing what goodness is, but on learning how to become good human beings (1103b28-9) (a statement qualified for young people in 1095a5 who fail to learn anything from lectures on ethics for they are lead away by their passionate natures into different types of actions).
But, precisely how this hierarchy of ends is to be understood is quite a different problem altogether. As we saw not even Aquinas and Marsilius seemed to be in agreement as to an extremely short passage within Aristotle’s text. Presumably then one cannot claim to have the unique interpretation which will, finally, clarify what counts as constitutive of this hierarchy. How to understand is a contested matter presumably to be cleared by reading and re-reading the text itself. However, let us conclude by saying that an elucidation of this hierarchy must consider different passages in which such a hierarchical structuring takes place. Briefly, some of these are: i) the existence of a hierarchy in the arts which culminates in the architectonic arts, ii) the formulation of happiness as the highest possible end for us humans, end under which all other goods are subordinated, iii) the hierarchical division of the soul into the vegetative, the appetitive and the rational (logos); linked to the corresponding proper function of humans according to rational principle, iv) the hierarchy of goods as found in the tripartite division, goods of the body, external goods, and goods of the soul, v) the hierarchy of different types of lives; the life of business, of enjoyment, of politics and of philosophical contemplation, vi) the hierarchy of the moral virtues, hierarchy in which greatness of soul stands as one of the peaks and finally, vii) the peak which justice represents, one revealing a reconsideration of the moral virtues under the perspective of the good, fundamentally, for the other.
FOOTNOTES
INTRODUCTION
1. This important question is posed by Strauss in his Persecution and the Art of Writing pg 95.
2. Strauss goes on to compare modern relativity to nihilism; though he does not mention that nihilism can be of two very different variants, the active and the passive. Nietzsche, Will to Power #22.
3. Strauss agrees with Taylor here, pg. 164
4. Taylor agrees with Strauss here. Section 3.1
SECTION I
5. Arendt deals with this extremely important difference, between the private and the public, in her The Human Condition.
6. A case in point is that of Charly Garcia, a famous Argentinian rock star, and his reinterpretation of the Argentinian National Anthem in heavy metal form. It shocked many Argentinians.
7. Presumably the important issue of equity, as dealing with the faulty generality of law, would somehow be linked to these particular transformations of the law.
8. Parekh gives examples such as this: “In R v Bibi (1980) the Court of Appeal reduced the imprisonment of a Muslim widow, found guilty of importing cannabis, from three years to 6 months on the ground, that, among other things, she was totally dependent on her brother-in-law and was socialized by her religion into subservience to the male members of her household” (200) Other very interesting and complex examples are given in the readings by Carens (see bibliography).
9. The qualification ‘in relation to us’ has taken place not only concerning ethical inquiry in general (1095b11 ff), but also concerning the mean (1106a30 ff)
10. It is interesting to note that under Catholicism the left hand has had a rather unfortunate history. This is more salient in the Spanish words siniestra, the left, and diestra, the right. Siniestra has altogether negative connotations just as sinister does in English.
11. Aquinas gives an example of humans having by nature two feet; this of course is not the Aristotelian example precisely because it does not deal with the transformability of the natural.
12. The connection here between this example and the always elusive issue of health as regards justice (see chapter 1) I believe is there, though I do not quite know how to articulate it fully at the moment.
13. That these matters make a difference can be seen, for instance, if one asks somebody used to one of the given measurements to imagine the other. If somebody asked me, for instance, the altitude of Santafé de Bogotá in feet, I would be at a loss as to what to answer. Though I know, and was brought up to memorize as a child, the corresponding measure in meters.
14. This looking at actual real cases is what lies behind Carens’ appeal to differentiating between policy making and philosophical comprehension, or between idealistic and realistic approaches to politics. He asks one to, rather than staying at one of the extremes. move towards a form of reflexive equilibrium. On a different note, the passage which ends the chapter to be analyzed was left on the side primarily because of the difficulty in viewing how to link it to the whole discussion. Is there such a connection?
SECTION II
15. Of course in modern geometry Euclid’s axioms are only a set of the possible starting points. Conventionality has reached even such indemonstrable truths for us moderns.
16. Kantian ethics is too permeated by this rigidity, primarily as regards its distinction between the moral and the non-moral spheres. There is a sharp line differentiating both.
17. Strauss gives the example of espionage. pg 160
18. Socrates “tricks” Thrasymachus into assuming a natural standard which he himself did not hold by way of his definition of justice with reference to the strongest.
19. The question as to whether one can return to the Greeks, having had 2000 years of Catholic tradition, is a difficult one. One can see he ambivalence in poems such as Rimbaud’s nostalgic Soleil et Chair.
20. The extreme situation for the individual is presented by Aristotle in 1100b31 ff.
21. In Colombia, where I was born, there is such a law which is called “Ley de Conmocion Interior”. It can be set in place when the public order is imperiled; as it has happened many times happens under the Colombian reality, one of a weak form of democracy (some would argue an oligarchy). But it is limited to a 3 month period of application; presumably so that the exception does not become the satte of normalcy. But also so that the government does not use it to further its own objectives. Under this law for instance military officials require no warrants in the persecution of criminals. However the governement has used it, I believe, as a weapon to fight matters which go beyond the defense of the public realm; or at least as a substitute for other measures which would go to the heart of the violence and poverty which permeates everyday reality.
BIBLIOGRAPHY
A) Primary Sources
Aristotle, Ethica Nicomachea, Oxford University Press, Oxford, 1rst 1894, 20th 1988, Edited by I. Bywater.
Aristotle, The Ethics of Aristotle, Penguin Books, London, 1rst- 1953, 1988. Translated by J.A.K. Thomson.
B) Secondary Sources
Carens, Joseph, “Complex Justice, Cultural Difference and Political Community”
——– “Realistic and Idealistic Approaches to the Ethics of Migration”
——– “Democracy and Respect for Difference”
Course Handouts:
——Aquinas, Commentary on the Nicomachean Ethics, 1018-1032
——Aristotle, Nicomachean Ethics, Bk. 5, chap 7 9113418-35a15)
——Marsilius of Padua, Defender of Peace, Discourse 2, Chap 12, sec 7-9
Parekh, Bikhu, “British Citizenship and Cultural Difference”, in Geoff Andrews (de.) Citizenship, Lawrence and Wishart, London, pp. 183-204.
Strauss, Leo, Natural Right and History, University of Chicago Press, “Introduction“ and “Classical Natural Right”, pp. 156-164.
——- Persecution and the Art of Writing, pp. 95-98
Taylor, Charles, Sources of the Self, Harvard University Press, Cambridge, 1990.
Rarefactions: by Andrés Melo Cousineau 