1 Law presupposes some concept or concepts of the ‘good’

Aristotle’s most important remarks about law appear in his writings on ethics and politics. Yet there can be no suggestion that he unthinkingly collapses law into either topic – let alone that he is just an ‘early’ theorist who has ‘not yet’ pondered possible differences among the concepts of ‘law’, ‘ethics’ and ‘politics’.Footnote ¹¹ In the Constitution of Athens, long deemed to be only one of a compendium of studies undertaken for over 150 Greek city-states (Miller, Reference Miller1995, p. 4; Höffe, Reference Höffe1999, p. 23). Aristotle pursues a fact-based account of the minutiae of Athenian legal rules and processes. That discussion conspicuously avoids normative evaluations (Con Ath, paras. 42–69).Footnote ¹² The embedding of law within ethics and politics in Aristotle’s more prominent works is undertaken by a thinker aware of the benefits of a strictly descriptive, institutionally focused account, but who is resolved that such an account cannot supplant an equally important inquiry, namely, a normative examination of the aims and goods of a legal system.Footnote ¹³ The location of Aristotle’s discussions of law within expressly prescriptive works on ethics and politics represents not the lapse of an ‘early’ thinker, but a deliberate methodological choice.

The Ethics starts with what, for admirers, is one of the most astute, and, for detractors, one of the most vacuous principles in ethical philosophy. From a meta-ethical perspective, the latter impression comes as no surprise. A meta-ethical proposition may sound like a hollow formalism, making some assertion about ‘the good’, situating the concept of ‘the good’ within ethics, while suspending any substantive account of it. Aristotle famously begins:

Ross’s word ‘art’ must not be read to denote only such forms of fine or popular ‘art’ as painting, poetry or music. Ross uses it here to translate technē, which broadly signifies any area of special expertise, from the ‘art’ of baking to the ‘art’ of apple farming, navigation or medicine (recalling the Latin ars). Some scholars, such as Irwin, translate technē here as ‘skill’ (Aristotle, Reference Aristotle and Irwin1999, p. 1). Rowe proposes ‘expert knowledge’ (Aristotle, Reference Aristotle, Rowe, Rowe and Broadie2002, p. 95).

The meta-ethical principles introduced in Book One are not all innovations. Several appear in Plato, often with no hint that they would have been deemed controversial. Some propositions, such as Aristotle’s opening one here,Footnote ¹⁴ appear to have been widely accepted. That status underscores their meta-ethical character: they are not deemed controversial in themselves, but rather assume the position of propositions which allow the very possibility of meaningful disagreement about propositions of positive ethics. It is deemed uncontroversial, hence meta-ethical, that each skill, inquiry, action and choice aims at some good, as opposed to some aiming primarily and deliberately at a bad result, or at results devoid of moral character. The next step, the task of positive ethics, where controversy may then arise, concerns the nature of the good, and how it is best achieved.

In Gorgias, one of the most viciously argued of Plato’s dialogues, in which Socrates and his interlocutors present wholly antagonistic theories of positive ethics, Socrates twice advances, without opposition, that same meta-ethical principle with which Aristotle’s Ethics begins. Plato leaves no doubt that people can fiercely dispute the most fundamental points of positive ethics, while still agreeing, as the very source of such disagreement, that we ‘do all things for the sake of what’s good’ (Grg. 499e; cf. Grg. 468b). It is only insofar as they agree upon that meta-ethical point that their disagreement on positive ethics takes on any determinate meaning, as a disagreement about what, in substance, is or is not good. If much of Aristotle’s meta-ethics, then, merely re-states existing views, the merit of Book One is nevertheless to present them in an orderly, autonomous sequence. In so doing, Aristotle invites attention to meta-ethics as a field of systematic enquiry in its own right.

The making, application and enforcement of law certainly entail expertise.Footnote ¹⁵ Law’s norms, practices and institutions are no random examples of activities that, on Aristotle’s view, ‘aim at some good’. They will frequently stand as peremptory examples.Footnote ¹⁶ In the Politics, Aristotle’s discussions of the Spartan, Cretan or Carthaginian (e.g., Pol. II.9–12) systems routinely evaluate their various benefits and drawbacks, in view of their disposition to promote some ideal of the good: justice over injustice, prosperity over misery.Footnote ¹⁷ That explicitly normative approach to law is entailed by Book One’s opening sentence. Aristotle effectively announces an examination of law from the perspective of the goods for which legal norms and practices are adopted, without ever needing to deny that the more structural, value-neutral kinds of accounts employed in the Constitution of Athens might suit other analytic purposes.

The orthodox positivism of Austin (e.g. Austin, Reference Austin and Hart.1998, pp. 12, 124, 126) or Kelsen (e.g. Kelsen, Reference Kelsen1960, pp. 60–71) had acknowledged normative evaluation as important to, yet fundamentally distinct from, the analysis of law; Aristotle recognises expressly normative as well as strictly descriptive approaches, not rating one above the other as ‘more appropriately’ a study of law, but as serving, each, a distinct but vital analytic function. The question ‘What is the best legal system’ has long been seen, within positivist and analytic orthodoxy, as worthy, yet distinct from the question ‘What is a legal system’ (e.g. Hart, Reference Hart1994, pp. 155–84). For Aristotle’s expressly normative method, as we shall see, the latter question can be fully answered only with reference to the former. Law presupposes some concept or concepts of the ‘good’.

The first sentence of Book One has introduced only a formal concept of the good. Familiar schools of positive ethics disagree on what counts as good, or on how it is achieved. They include, for example, theological, deontological, liberal, consequentialist, communitarian, Marxist, pragmatist, feminist, libertarian, anarchist, post-structuralist or post-colonial theories. On Aristotle’s meta-ethical view, however, all of them, as ethical theories, must by definition recognise (a) that some state of affairs X is better than some competing state of affairs Y, and (b) that X is ‘good’, at least in that comparative sense. Reading, for example, Marx and Engels from that still-very-basic meta-ethical perspective, society is better, and is at least in that sense ‘good’, with an emancipated proletariat, as compared to one subject to the control of the bourgeoisie. Similarly, for feminists, society is better, and in that sense ‘good’, when women are not dominated by men. For liberals, society is better, and in that sense ‘good’, with legal regimes of individual rights and freedoms. For libertarians, society is better with the smallest possible government. For anarchists, society is better with no government at all. And so on.

2 Law presupposes purpose

One of Plato’s major attacks on sophists and orators arose from their subjectivist, relativist views of law and justice, spawning a controversy not unlike those that would later pit natural law against positivism. Like Hobbes (Hobbes, Reference Hobbes and Gaskin.1998, chapter 6), figures such as Callicles (e.g. Grg. 483b–84b, 488b–90c) and Thrasymachus (e.g. R. I.338c, 338e–39c) deny that justice exists as anything more than a subjective, human notion. Plato characterises the universe (kosmos) and the human soul (psuchē) in terms suggesting objective justice as a component of the natural, ordered world (e.g. Phd. 66b–d). Within that cosmology, the laws of ethics are as much laws of nature as are the laws of chemistry or biology (e.g. Phd. 100b–e).

Through a rather different metaphysics, Aristotle carries forward Plato’s rejection of subjectivism and relativism (e.g. Kraut, Reference Kraut2006, pp. 20–49). Aristotle equally embraces justice as something concerned with the nature of humans as a species. He eliminates any absolute line between laws of nature operating through chemistry or biology, and laws of nature operating through ethics and justice. This is not to say that Aristotle draws no distinction at all between such laws. He recognises that laws governing human conduct are subject to more variability than laws governing, for example, the movements of planets or the building of bridges. He sees human variability, however, as betokening merely a different kind of law (e.g. NE I.iii.1094^b20–27), not the absence of any natural character within human law. When Aristotle defines the human being as the ‘political’ animal (e.g. NE I.vii.1097^b11–12, IX.ix.1169^b18–19; cf. Höffe, Reference Höffe1999, pp. 248–56; Bostock, Reference Bostock2000, p. 26) or the ‘rational’ animal (e.g. NE I.vii.1098^a3–5; cf. Höffe, Reference Höffe1999, p. 40; Bostock, Reference Bostock2000, p. 27), he is not using sheer figures of speech. He is assimilating humans into a broader, natural world. He is suggesting that law, ethics and politics can be examined in ways similar to those proper to the natural sciences.

It is useful to bear in mind how Aristotle’s approach to nature informs his approach to law. Before turning back to a vast and complex system like law, consider a simpler one. We could make observations about how to build a ship without reference to any aims the ship will serve, much less to the good or evil of such aims. It would be implausible, however, to suggest that questions about the ship’s aims are, by definition, irrelevant to questions about what the ship is. There is no reason why defining the ship in material terms – sails, mast, deck, starboard, etc. – more accurately explains what the ship is than explaining, in functional terms, how the ship serves as an instrument for economic, military or leisurely activity. So much less, from Aristotle’s perspective, could a legal system, whose components are human norms and acts, be understood only as some assemblage of discrete components (procedures for legislation, adjudication, policing, and, in turn, their more elemental components).

While a material explanation might define the ship in terms of sails, mast, deck or starboard, a functional definition might define it in terms of defending the nation from attack, or fishing, or purchasing food, or sunbathing at sea. These various accounts of the ship, the material and the functional, provide, for Aristotle, not correct, as opposed to incorrect, explanations. They provide qualitatively different kinds of explanations. Each complements the other, as famously described under his doctrine of the ‘four causes’: ‘material’, ‘formal’, ‘efficient’ and ‘final’Footnote ¹⁸ (e.g. Meta. V.ii.1013^a24–35). Like the opening sentence of the Ethics, the doctrine of the four causes stands, depending on one’s sympathies, among the subtlest insights, or the greatest pedantry, in classical philosophy. Consider more fully the example of a ship:

• • It is the ship’s constituent parts which provide the material cause for the ship being a ship (e.g. Meta. V.ii.1013^a24–26). The material cause is the presence of sails, mast, deck, starboard, etc. They, in turn, have as their material cause such things as wood, metal, etc. And those latter, ultimately, trace to more primary matter, such as atoms or the like.

• • The ship’s design provides the formal cause of its being a ship (e.g. Meta. V.ii.1013^a26–29). The said components are formally caused by the fact of those woods and metals being arranged into such-and-such a shape and character, as opposed, say, to the shape and character of a house, amphitheatre, chariot or temple.

• • The means of the ship’s assembly, such as a labour force, provide an efficient cause for its being a ship (e.g. Meta. V.ii.1013^a29–32). The ship is efficiently caused by people following certain building instructions and applying certain tools to the said materials in order to build it.

• • The ship’s military, economic or leisurely aims provide the final, or teleological cause for the ship being a ship (e.g. Meta. V.ii.1013^a32–35). In that sense, the ship comes into being to serve the aim of defending the nation, or for fishing, transporting foodstuffs, or fun.

As explanations of the natural world, Aristotle’s four causes run into difficulty. Today, post-Cartesian science dispenses with inquiry into inherent purpose or form in nature, as lying beyond empirical demonstration. Modern science may theorise a universe that seems well, or poorly, ordered to us, but knows no vocabulary for a kosmos that is inherently well ordered. Within deliberated human activity, by contrast, we more readily accept concepts of final and formal cause. We hesitate to attribute purpose to planetary orbits, but freely attribute it to a ship, arguing that it is built for such-and-such ends, and that its form well or poorly suits those ends. Although Aristotle’s detailed discussions of the four causes arise in his works on natural science, they fit more easily today into discussions of human, deliberative activity (cf. Aristotle, Reference Aristotle and Irwin1999, pp. 39–40). We can remain agnostic about their metaphysical truth, whilst reserving for them a meta-ethical function. Insofar as law’s norms, institutions and processes are deliberated, they presuppose purpose.

Even with respect to human activity, Aristotle’s application of causation within his positive ethics raises difficulties. The suggestion that the end, or final cause, of the marital relationship entails a woman’s subordination to her husband (e.g. Pol. I.xii.1259^a37–1259^b3), or that the end of domestic servitude involves a slave’s obedience to a master (e.g. Pol. I.iii–vii), raise troubling questions. The degree to which such conclusions strictly follow from Aristotle’s own ethical premises has been debated (Kraut, Reference Kraut2006, pp. 277–305; Homiak, Reference Homiak and Lloyd1993, pp. 80–102; Hirschman, Reference Hirschman1992; Nussbaum, Reference Nussbaum1991–1992). Those controversial elements of Aristotle’s positive ethics, however, are not meta-ethical. Aristotle’s four causes indicate modes of explanation, regardless of how Aristotle applies them to his own positive ethics.

The fact that any of the four causes may be invoked in a given case does not mean all of them must be invoked in all cases. Aristotle often chooses them as appropriate for the points he wants to make. Ross does rightly note that, ‘for Aristotle, all four are necessary for the production of any effect’ (Ross, Reference Ross1995, p. 75). That does not, however, mean that, as a matter of sheer exposition, they all necessarily require explicit discussion in all cases. The Constitution of Athens paras. 42–69 refrain from teleology, generally employing material and efficient explanations, for the very limited purpose of explaining the institutional components of Athenian law and their operations. They set forth the elements and operation of norms, institutions and processes, without evaluating the goodness of their aims. In the Politics, particularly as interpreted in conjunction with the Ethics, Aristotle takes the opposite tack. Announcing that work’s goal not merely of describing regimes, but of ascertaining the best possible regime (e.g. Pol. II.i.1260^b27–28), Aristotle recognises that both approaches can deepen our understanding of politics.

3 Law presupposes dialectics

After a twentieth century that unleashed brutalities from trench warfare, to extermination camps, to racist degradation, to atomic devastation, something may seem naive about the assertion that all human acts aim at ‘some good’. But such horrors by no means lie beyond Book One’s reach. Little is gained by summarily branding evil as ‘evil’, or by assuming evil to be manifest in such a way as to obviate explanation. Individuals, organisations or governments acting even in flagrant bad faith generally proclaim not ‘evil’ aims, but good ones. Iranian law authorises stoning of adulterers or homosexuals not in the name of evil, but in the name of the good (e.g. Heinze, Reference Heinze1995, p. 3). Some American states, until forced to do otherwise, imposed the death penalty on mentally handicappedFootnote ¹⁹ or juvenileFootnote ²⁰ offenders, not in the name of evil, but in the name of the good. The same holds for history’s most heinous crimes. Genocide and torture have been waged not in the name of evil, but in the name of the good (propagation of a supposed ‘master race’, preservation of national security, etc.).

From Aristotle’s rationalist perspective, we do few favours for the genocide or torture victim, and none for the cause of justice, by insisting that such acts are so evidently evil as to render explanation of their evil superfluous. Insofar as they are evil, it must, on Aristotle’s account, be because any good attributed to them, however sincerely or disingenuously, is demonstrably inferior to the greater good of refraining from them.Footnote ²¹ Of course, any sensitive being might well cringe at the idea that genocide or torture can be condemned only after first being shown to be ‘inferior to the alternatives’. To be sure, in an era after war has devastated Greek civilisation, it is by no means clear that Aristotle places naive faith in rationality. He does, however, place some hope in communal beings who proceed through processes of shared, public deliberation. Aristotle’s concepts of public deliberation (Rhet. I.iv–viii) provide a model of ‘communicative action’, with, as I shall note momentarily, all of the limitations that rationalism entails.

We might also note a utilitarian ring about the comparison of relative goods that follows from Book One’s opening words. That impression would be misleading, however, unless we were to dilute utilitarianism to the empty extent of having it merely represent ‘the most good’. Again, many ethical and political theories claim to represent ‘the most good’, from Christianity to Marxism to libertarianism. If utilitarianism represents whichever system produces ‘the most good’, then it collapses into whichever such theory prevails. And any stronger theory of utilitarianism, proposing a specific content of ‘the good’, surpasses the still formal, strictly meta-ethical character of the Ethics’ first sentence.

Book One’s starting words do anticipate some calculus or comparisons of goods – a basis for asserting that some things, such as kindness or helpfulness, are better than other things, such as aggression or brutality. Although they do not propose that calculation in any sense that necessarily entails utilitarian ethics, they do announce a dialectical foundation for justice, and for evaluating the merits and demerits of a norm, practice, process, institution or regime (e.g. Galston, Reference Galston1994, p. 336). If genocide and torture are evil, it is not because no arguments can be adduced in their defence. Whether we like it or not, such arguments are made, as Callicles (e.g. Grg. 483b–84b, 488b–90c) and Thrasymachus (e.g. R. I.338c, 338e–39c) chillingly remind us. Dialectics can recognise no good as obvious or beyond question. Insofar as law is rationally deliberated – that ‘insofar’ being admittedly problematical – it presupposes dialectics.

Dialectical ethics are a mixed blessing. On the one hand, they suggest an anti-authoritarian element to the norms and operation of law, ethics and politics. Socrates and Plato had expended enormous effort in challenging conventionalism, i.e. the view that widespread or long-standing observance suffice to lend legitimacy to prevailing norms or practices. In Plato’s Republic, the quasi-sacred Homeric texts, for example, are pillaged to a comic degree, as Socrates keeps what’s suitable and discards the rest. (R. II.379c–III.393b) Works like Euthyphro, Ion and Protagoras similarly undermine notions of uncontested political, ethical, religious or intellectual authority (e.g. Euthphr. 6b–c et passim; Ion 534c et passim; Prt. 347e–48a et passim). Miriam Galston provides a thorough account of how modern theories of civic republicanism and deliberative democracy can be linked to Aristotle’s dialectical ethics (e.g. Galston, Reference Galston1994, pp. 355–71).

On the other hand, the rationalism of dialectal ethics entails the supremacy of the most rigorous argument, which is by no means as self-evident as a classical philosophical tradition wished to believe. In practice, it has often been those in power: (a) who decide which interlocutors or arguments count as ‘rational’; and (b) whose superior educations endow them with competitive advantage, serving more to entrench than to challenge existing conventions of power and truth. In our own societies, doubts about the equal rational capacities of ethnic minorities or women avoided serious challenges until rather recently (Kraut, Reference Kraut2006, pp. 277–79; Galston, Reference Galston1994, p. 359). Plato’s Meno does suggest that the lowliest slave might participate in the loftiest exchange (M. 82a–85e), and his Republic admits women among the philosopher rulers (R. IV.540c); yet his writing remains pessimistic about the disposition of hoi polloi, ‘the many’, to pursue rational thought (e.g. Lch. 184d–85a; R. IV.428d–e).

Aristotle’s theories of the inferiority of ‘natural’ slaves and women stems from his view of their diminished rationality (e.g. Pol. I.xiii.1260^a12). On its own terms, that positive ethics would have to cede to the meta-ethical requirement of any dialectics which might challenge it. A Habermasian kind of discourse ethics (Habermas, Reference Habermas1987), if it can succeed at all, may be said to continue and to enhance the project of Aristotelian dialectics, as it seeks to eliminate the exclusion of participants otherwise silenced through prevailing power relations. Whether something like Habermas’s ideal speech situations can be realised to some acceptable degree, or, in practice, would inevitably turn out to remain entrenched within those very power disparities which they would purport to overcome (Derrida, Reference Derrida1967, pp. 117–228), are controversies confronting Aristotle’s meta-ethics as strongly as Habermas’s discourse ethics. Any ethical conclusion ensuing from a process that regulates ethical dialectics through the unreflective enforcement of existing power relations is anti-dialectical. Aristotle’s positive ethics violates his meta-ethics if it results from anything less than the best possible dialectical process.Footnote ²²

One might suspect here a vicious circle: justice arises only out of a just dialectics, which, in turn, cannot be ascertained without determining what justice is. That circle is only vicious, however, if we assume some stopping point at which the process of ethical reason would altogether end. Yet both sides of the equation, justice and dialectics, remain subject to revision in light of each other. To preclude any concept of justice or any dialectical process solely on the grounds that neither can guarantee a final, universally acceptable outcome would be to turn all ethical reasoning into a straw man.

Irwin persuasively argues that Aristotle’s views on ethics, politics and justice accord with the writings on metaphysics and psychology (Aristotle, Reference Aristotle and Irwin1999, pp. 35–53). Meanwhile, Otfried Höffe reads in the opposite direction, arguing that the Ethics proceeds without metaphysical assumptions (Höffe, Reference Höffe1999, p. 196). Elsewhere, I have recalled that Plato, while subsuming his views on ethics, politics and justice within his metaphysics, often develops specific arguments more with reference to familiar, everyday insights than to metaphysical premises or references (Heinze, Reference Heinze2007b, pp. 332–33). For Höffe, Aristotle’s dialectical method grows more out of common-sense reasoning, a hermeneutics of the Lebenswelt, i.e. of lived experience (Höffe, Reference Höffe1999, p. 198). Moreover, one might resist genocide or torture without having given a moment’s thought to ethics, which does not, however, mean that such resistance eludes ethical explanation within the terms indicated by Book One’s first sentence. Someone might rescue a baby from drowning without convincingly knowing, stating or caring why it is good. Kant’s focus on intent (Kant, Reference Kant and Weischedel.1968a, p. 5 et passim) would indeed call the act’s goodness into question. From the perspective of Aristotle’s rationalist meta-ethics, however, such an act means neither that there is no reason why it is good, nor that we should be unable to identify such a reason.

The anti-authoritarianism of dialectical ethics does not render conventionalist foundations for legal or political norms or practices illegitimate solely because they are conventions. Long-standing conventions, such as prohibitions on murder, may be highly credible. But, as Plato insisted, their credibility does not lie solely in their conventional character (e.g. Prt. 337d; Tht. 172a, 167c, 177c–d). Plato and Aristotle recognise that widespread or long-standing beliefs or practices carry real weight; that their wholesale destruction may leave something worse in their stead. Note also that it is common for Aristotle to begin discussions precisely by departing from views that are widely shared (endoxa), on the assumption that such status may suggest at least prima facie plausibility (cf. Top. I.i.100^a18–21). Their popular character, like the purely conventional character of many norms and practices, provides reason to think that they may be sound on other grounds, but are never deemed correct solely because they are popular or long-standing.

4 Law presupposes objectivist ethics

On first glance, Book One’s opening words might also risk falling sway to relativism. If any act can be ‘thought to aim at some good’, it is not perforce obvious why one good would be better than another. To call an evaluation of the good formally dialectical scarcely guarantees that the dialectics will be conclusive or universally embraced. Through figures like Callicles and Thrasymachus, Plato had waged such mind-numbing battle against ethical relativism that relativist positions cannot be far from any post-Socratic Greek reflection. It would be no exaggeration to suppose that, with Socrates, Plato and Aristotle, the whole enterprise of critical, systematic thinking about justice arises at an historical moment in which ethical and political thought have fallen subject to such a high degree of academic abstraction (e.g. Phd. 100d; R.III.405d) as to have lost altogether any sense of an obvious, unquestionable foundation.

The dialectics entailed by Book One’s opening words suggest foundations for law along ethical lines. By suggesting in the first instance that some good, however implausibly, can be ascribed to any act, Aristotle anticipates, as a foundation for law, an objectivist ethics, a standard for assessing whether one stated good at which an act ‘aims’ might be mistaken, i.e. believed to be good, and in that sense to be aiming at some good, when it can be shown to be less good than some alternative (Kraut, Reference Kraut2006, chapter 2). ‘Subjective’ and ‘objective’Footnote ²³ are by no means the only ways of describing positive ethical theories. Susan Houser, for example, reviews a topology that has emerged, notably within Anglo–American theory, including realist and anti-realist schools, along with related or alternative concepts of foundationalism, intuitionism, coherentism, scepticism and constructivism (Houser, Reference Houser1993, pp. 1142–57). She suggests that several of those approaches can be eliminated from the study of law and government, as they would fail to take into account the deliberative processes by which law and policy-making must proceed (Houser, Reference Houser1993, pp. 1158–81). Although Houser mentions Aristotle only in passing, his brand of anti-subjectivism would, within the familiar Anglo–American classifications, classify him as an ethical realist. Whether legal norms and processes are good or bad, just or unjust, is, for Aristotle, neither irrelevant nor incidental. It is central to what law is and does. If all deliberate acts ‘aim at some good’, the next step for any theory is to examine the concept of ‘good’ in order to determine the degree to which this or that specific claim about the good can be confirmed or refuted. If law does or should serve to achieve certain goods, then the better our insight into those goods, the better we can make law.

Again, the recognition of (a) some good at least nominally attributable to all deliberated acts is precisely how a moral relativist might surmise that (b) all acts being good insofar as some good can be attributed to all, none is irrefutably better than another. On Plato’s account, that ethical–relativist conclusion had induced Callicles and Thrasymachus to argue, in proto-Nietzschean terms, that it is not objective good at all, but merely the power to impose with impunity one’s own good, one’s own self-interest, that is ever ultimately desired or desirable. Not simply to generate his own positive ethics, but as a matter of meta-ethics, Aristotle will have to show that the plausible premise (a) does not entail the spurious conclusion (b), but the opposite, namely, that it is precisely the possibility of nominal attribution of ‘good’ to any deliberated act which allows us to compare goods, and to identify some as superior to others.

Were subjectivism and relativism valid, then an endless number of rival aims would contend as equally worthy. (Even for the nihilist, ‘equally worthy’ would mean ‘of no inherent worth whatsoever’. All ends would, in that sense, be ‘equally worthy’.) How, then, can we recognise better and worse attributions of goodness? Aristotle takes his next step by introducing further, elementary components of a classical meta-ethical lexicon (cf. Lch. 185d; Grg. 468a), namely, the distinction between means and ends. Acts undertaken not for their own sake, but for the sake of some other good, represent means to other ends, and not ends in themselves:Footnote ²⁴

Aristotle assumes an ordinary, or typical, case (although his theory would not be negated by occasional atypical cases) whereby I brush my teeth, or travel to work, not for the inherent satisfaction or enrichment of those acts, but for the greater goods of health or employment – which, as we shall see, stand in turn as means to still greater ends. Assuming that tooth brushing is a worthy end, then it is superior to the end of purchasing a toothbrush. Assuming that oral health is a worthy end, then it is a superior end to the end of tooth brushing. And so on. In the typical case, then, tooth brushing is good not in its own right, but because health, one part of which is oral health, is good. By extension, even health, as we shall see – albeit superior to tooth brushing, again, merely insofar as tooth brushing, on its own terms, subordinates itself to health – subordinates itself, in turn, to the even higher end of happiness (eudaimonia). From that perspective, even health is good not in its own right, but insofar as its end is eudaimonia generally (e.g. Ackrill, Reference Ackrill and Rorty1980, pp. 21–22).

In envisaging those typical cases of tooth brushing or travelling to work, Aristotle’s view can handily concede that some people might brush their teeth or travel to work without seeking any further end, perhaps relishing the erotic pleasure of the bristles, or the voyeurism of the journey, such that they might engage in such activities even if their teeth were already clean, or they had a day off from work. In Derrida’s terms, our normative positing of the typical case of tooth brushing, as conducive to health, does ‘violence’ to the atypical, marginal, even strategically pathologised case of tooth brushing as an erotic experience. Even for those people (much as we might wonder at Kafka’s Samsa or Freud’s Rat Man as symbols of primordial revolt) it would be difficult for all of their day-to-day activities – tying their shoelaces, locking the door, walking down the stairs – to be performed solely as ends in themselves. The problem would not be insanity, so much as sheer exhaustion.

On the other hand, as we have already seen, the atypical, the quirky, the marginal, the unconventional or the unfamiliar must not so readily be equated with the irrational; or, if they be called irrational, the irrational must not too hastily be excluded from dialectical or objectivist accounts of the good. Otherwise, like ethical dialectics, ethical objectivism risks collapsing into the sheer equation of reason with dominant preferences, entailing the very authoritarianism and conventionalism which Aristotle’s dialectics and objectivism intrinsically challenge. Notwithstanding those caveats, law never proceeds, and never could proceed, on the assumption that all or most mundane activities are undertaken as ends in themselves. In terms of assuming the more instrumental ends to be subordinate, as goods, to the ends which they serve, law pervasively follows Aristotle’s description of higher and lower aims. Hart’s ‘secondary’ rules, aimed not as ends in themselves, but to facilitate ‘primary’ rules (Hart, Reference Hart1994, pp. 79–99), provide one application, if not perforce one that would have wholly satisfied Aristotle (Heinze, Reference Heinze2007a, pp. 116–20, 130).

All of those acts, brushing one’s teeth or travelling to work, which are undertaken not for their own good, but for some other good, are, for Aristotle, by definition, less good than that latter good. Aristotle has not yet refuted ethical relativism, but, in distinguishing between means and ends, has taken a step, through the meta-ethical premise that the constant pursuit of many kinds of goods does not imply that all are of indifferently equal worth. A hallmark of an objectivist, rationalist meta-ethics is the demonstration of that hierarchy of superior and subordinate goods, as opposed to morally indifferent, indeterminate or incommensurable ones. Once again, Aristotle is not merely developing his own positive ethics, but is asserting a meta-ethical condition of any rationalist ethics:

That distinction between ends and means allows many goods to be ruled out as foundational norms for law. Parking violations or statutes of limitations, like tooth brushing or travelling to work, are arguably goods, but are not plausibly foundational. They typically serve greater goods. The distinction, by nevertheless admitting at least some end of action as necessarily good in itself, equally limits the problem of infinite regress, whereby every act would only ever achieve the good of some anterior good ad infinitum. Any theory of law would entail a hierarchy of goods. Consider the example of orthodox Marxism, which might conventionally be thought the very antithesis of Aristotelian ethics (though Marx and Engels, never specifically discussing meta-ethics, cannot be read as categorically rejecting a meta-ethical interpretation of their positions). Bourgeois revolution is good not for its own sake, but for the sake of overcoming feudal aristocracy; proletarian revolution is good not for its own sake, but for the sake of overcoming bourgeois hegemony; socialism is good not for its own sake, but for the sake of promoting a politically, economically and psychologically liberated population; the demise of the state is good not for its own sake, but for the sake of ultimate communal and individual self-realisation in communism (Marx and Engels, 1990). For Aristotle, we can progress towards an objective foundation for law by reasoning about those ends which can most plausibly be said to be worthy in their own right:

Ethical dialectics and objectivism do not imply all-or-nothing results. To assume the superiority of a highest good is not to assume that all alternatives are equally bad, nor that some alternatives might not contain considerable good. The apple tree planted in fertile soil will flower most fully. The tree planted in sand will die. For the apple tree, fertile soil is superior to sand. Yet there are intermediates between fertile soil and sand. The tree in partly sandy, partly fertile soil will flower to some degree, and there are many such greater and lesser degrees. There may be little or no perfect soil. The tree may blossom, and may even blossom well, without blossoming as fully as possible. Aristotle’s ideal polity may provide the best constitution (e.g. Pol. II.i.1260^b27–28), while tyranny may provide the worst (e.g. Pol. IV.ii.1289^b1–2), but kingship, aristocracy, oligarchy and democracy can provide relatively greater or lesser degrees of good law. If our aim, be it only for the sake of argument, is the best possible soil, then it is not, on a relativist view, any soil at all; nor necessarily, on an idealist view, the one soil that is so perfect that it is unattainable. The desideratum of some ascertainably best possible regime is meta-ethically presupposed by any normative theory of law. In that sense, law presupposes objectivist ethics.

For Plato, the greatest possible justice is not the greatest possible happiness for any one class of individuals – not even for the philosopher rulers, who might have to provide service to society when they might prefer to retire to study, as Plato suspects they would. Rather, it is the greatest possible happiness of the community as a whole (R. 4.420b, 7.519e). Similarly, a child may proceed to some kind of life with poor education. Yet parents commonly prefer for their children a good education – indeed, not just a good enough education, but the best possible education, the most fertile soil. Deconstructionists send their children to good schools, over and above poor or poorly educated parents who lack such means. They do so because of their belief that some schools are better than other schools. Even the best school will not guarantee a fulfilling life, but, they appear to believe, will augment its likelihood – which, they appear to believe, is good. Whatever may be their mental deliberations, their practical calculation is stunningly basic.

Plato’s and Aristotle’s detailed discussions of competing constitutional regimes reflect their view of greater or lesser degrees of good law. Plato’s backhanded compliment to democracy is to dub it the least worst (e.g. Stm. 303b; cf. Pol. IV.ii.1289^b1–2), which, for such a constantly ironic writer, may be very good indeed. Whole societies may get by well enough with good enough laws. Plato and Aristotle think that many societies do. But they think the best possible laws will most likely produce the most prosperous societies. Aristotle makes that ideal explicitly and systematically meta-ethical, and not merely one arguable feature of just another positive ethics.

5 Law presupposes a best constitution

Aristotle immediately identifies the activity that leads to the greatest good, claiming that ‘politics appears to be of this nature’ (NE I.ii.1094^a27). ‘Politics’ translates politikē. Unlike the English term politics, politikē etymologically recalls the specifically Greek sociopolitical form of the polis, variously rendered into English as city, state, city-state, society and sometimes other terms (Kraut, Reference Kraut2002, pp. 13–14). In much of ancient Greece, as Thomas Martin observes:

In this article I retain the Greek singular polis and the plural poleis untranslated, and I reinsert them as such into the translations (as English grammar obviates declension). Richard Kraut counts over 1000 ancient Greek poleis (Kraut, Reference Kraut2002, p. 12), though many would have been very small. Athens figured among the largest, wealthiest and most powerful. It was simultaneously far less, and far more, democratic than any democracy today. It was far less democratic, since an estimated ninety percent of the population, including women, slaves and non-indigenous merchants (‘metics’), were excluded from participation in political and legal institutions (Roberts, Reference Roberts1998, chapters 2–3). It was far more democratic, since the ten percent that held those privileges participated directly, unlike today’s representative legislatures, which leave overwhelming numbers of citizens scarcely more involved than chucking the occasional voting form into a ballot box once every few years, if they even do that (Taylor, Reference Taylor, Avineri and de-Shalit1992, pp. 29–50).

Crucial to Aristotle’s ideal polis is government of and by citizens who know each other. Community structure and political organisation are the same thing (Kraut, Reference Kraut2002, pp. 14–19). Today, it is impossible for us to identify in our own societies any greatest good like Aristotle’s politikē. For us to cite ‘national’ politics would be to name levels of faceless, managerial organisation, vastly abstracted from individual lives and communities (e.g. Taylor, Reference Taylor, Avineri and de-Shalit1992, p. 32 et passim). To cite ‘local’ politics or ‘community involvement’ would be to name spheres that are too politically subordinated to compare to Aristotle’s politikē. To cite ‘humanity’ would be to cite the most abstracted, arguably most hollow entity of all (Heinze, Reference Heinze, Bowring and Fottrell1999, p. 35).

Whether Aristotle’s positive ethics are right or wrong in identifying the citizen-based polis as the best form of constitution, his meta-ethics suggests that justice is thinkable only within the context of a specific social and constitutional entity, which must be described if any theory of justice is to be plausible. Also derivative from ‘polis’ is politeia, which Aristotle uses in two senses. He uses the word generically, to mean any form of ‘constitution’, but also coins it to stand for his own model of the best possible constitution (Kraut, Reference Kraut2002, p. 15). By analogy, we might use the word ‘circle’ in an ideal, technical sense to denote a mathematically ‘perfect circle’, but also in a broader sense to denote shapes that are effectively circular, like motorway roundabouts or lollipops, albeit not in a mathematically perfect way. Circles in that generic sense are more or less circles insofar as they approach or deviate from the perfect circle.

For Aristotle, a constitution in the generic sense, like an apple tree, is more or less a constitution insofar as it approaches or deviates from the best possible constitution. (Note that the work which we, following Cicero, translate as Plato’s ‘Republic’ bears the Greek title ‘Politeia’; Bloom, Reference Bloom1991, p. 439). In our own day, theorists have wondered whether a system might be so bereft of clarity, regularity or due process as to lack altogether any serious title to be called ‘law’, being altogether the opposite of law, a sheer system of brute coercion (Fuller, Reference Fuller1969). At some point, a roundness may become so irregular that it can no longer plausibly be called ‘circular’. Similarly, as noted earlier, Aristotle questioned whether either extreme democracy – the unconstrained majoritarianism of sheer mob rule – or extreme tyranny could be called constitutional forms at all.

We must not too casually translate politeia as ‘constitution’. Its etymology links it to a form of polis, and not to any conceivable form of social organisation. For Aristotle, any larger entity too far beyond the proportions of the polis inevitably disconnects citizens, or rather subjects, from government and law, rendering it actually or functionally tyrannical in its inability to allow humans to realise that which is most human, namely, interactive, communally participatory political being. Rousseau will famously re-state that point (Rousseau, Reference Rousseau1964, pp. 386–87). Irrespective of our agreement or disagreement with Aristotle’s own favoured regime, his meta-ethical point is that normative reason about law entails normative reason about the best constitution.

6 Law presupposes a positive ethics

Identifying the highest good with active, committed participation in the polis, Aristotle’s positive ethics envisages the opposite to the fundamentally rule-bound concepts of law that emerge from legal scholars’ occasionally isolated readings of corrective and distributive justice in Book Five of the Ethics.Footnote ²⁵ Central to Aristotle’s positive ethics is a legal system not fundamentally deriving from, nor fundamentally subjecting us to, regimes of rules, let alone rules whose decisively legal character is coercive. His ideal regime arises out of shared values and undertakings. Those who rule and are ruled, those who bind through law and are bound by it, are the same people. They continually interact, as critically and collectively self-determining citizens.

A non-participatorily imposed, uncritically reflected ‘habit of obedience’ (Austin, Reference Austin and Hart.1998, p. 193), or sheer aggregation of ‘primary and secondary rules’ (Hart, Reference Hart1994, pp. 79–99), may indeed suffice to sustain some sufficiently identifiable regime of law; but ‘no one would call a man just who did not enjoy acting justly’ (NE I.viii.1099^a17). That requirement of ‘enjoyment’ rings totalitarian in a society bereft of critically minded citizen participation, which, far from incidental to the Aristotelian polis, is its defining element. From Aristotle’s perspective, our own legal systems, managed by comparatively small, distant coteries, who are largely unknown to us, smack far more strongly of totalitarianism, or what he calls ‘tyranny’, the hallmark of which is pervasive alienation of the ruled from the rulers. As Richard Kraut observes, ‘Aristotle is not proposing a theory about what the government should do, but about what the whole body of citizens should do […] the question “how should we organise our offices?” cannot be answered in isolation from a discussion of the more basic question, “how is it best to live?”’ (Kraut, Reference Kraut2002, p. 15). Aristotle is not interested in just any structural question we might ask about law, but in the most socially important question which we must ask about law; he inherits from Plato (R. I.331b) the view that the most important question is not ‘What is law?’, but ‘What is justice?’. The meaning and function of the former question always remains subordinate to those of the latter; hence his couching of normative discussions of law within discussions of ethics and politics. Kraut further notes that ‘the just person, as Aristotle conceives him, is not a merely passive follower of rules. It is not sufficient to know what the norms of one’s community are, and to abide by them’ (Kraut, Reference Kraut2002, p.107).

Having identified the greatest good as politics – politikē in the sense of active, ongoing participation within a polis – Aristotle explains how the goods available through all other forms of ‘expert knowledge’ subordinate themselves to it:

To identify the greatest good as collective is not obvious. Aristotle always praises social cohesion, but never speaks of the ideal polis as a mystical entity possessing life or soul beyond those of its members. It could be argued, then, that the good of the polis is pursued not for its own sake, but, precisely to the contrary, for the good of its members. On that view: (a) the greatest good is the good of individual humans; and (b) the good of the polis is subservient to that greatest good: the better the polis, the more and better is the good of its individual members.

Aristotle draws no such distinction, however, between the ends of the polis and those of any or all individual members. The individual and the polis share the same ends. In Broadie’s view:

Aristotle continues:

If there is no complete understanding of law without normative reason, then, whether or not we agree with Aristotle’s positive ethics, there can be no such thing as law without some positive ethics. The best possible legal system and the best possible ethical system become conjoined enterprises.

Intellectual revolutions in the West frequently trace back to some revolt against Aristotle. Copernican heliocentricity vanquishes Aristotle’s geocentric kosmos. Genetic science casts an ominous cloud over teleological biology. In the realms of law, politics and ethics, perhaps no onslaught has been as incisive as the various post-Nietzschean attacks on rationalism. Martin Heidegger’s Sein und Zeit cuts to the core, rejecting a metaphysics that collapses all of Being into that which is ‘present’ (vorhanden) or formally demonstrable, i.e. logos ‘vorwiegend als Aussage’ (Heidegger, Reference Heidegger1979, p. 165) or ‘im Sinne des aufweisenden Sehenlassens’ (Heidegger, Reference Heidegger1979, p. 32), and which reaches far enough to challenge Book One’s suggestions about the fundamental commensurability of goods, and, accordingly, about dialectical and objectivist ethics. At the very least, Aristotle recognises that styles of thought are by no means identical for all areas of human activity. Aristotle’s rationalism in no way entails a Kantian a priorism, by which the categorical imperative stands independently of everyday, sensory experience, such that we might resolve ethical questions, and indeed construct an entire legal system, merely through adequate reflection on the meanings of concepts. Critical engagement with law’s positive ethics cannot proceed in abstraction:

Consider another analogy. As between chocolate cake, spice cake and lemon cake, which one provides ‘the greatest good’? One might apply a nutritional standard, assessing relative quantities of sugar, fat and the like. Indeed, as between chocolate cake and broccoli, the nutritional standard might be highly probative. As between these three types of cake, however, there is some chance that nutritional analysis might scarcely distinguish between them. It is by no means clear, however, that only the nutritional standard is relevant, particularly when, as in this case, it may produce an inconclusive result. From other viewpoints, like a culinary one, there are great differences among the three types, and they are not interchangeable. Still, even though the culinary standard might go further in distinguishing between the three types, there remains doubt about whether that standard could tell how much ‘good’ each cake provides. We would presumably have to resolve the matter by calling it a question of sheer taste. None can be called distinctly ‘good’, except according to that subjective, normatively relativist measure.

It is surely correct, then, that some differences of opinion are purely subjective. From that proposition, some sophists inferred that differences of opinion as such are subjective, or are mere matters of habit or convention (e.g. Tht. 152a, 167c):

For Aristotle, plausible subjectivity, relativism or conventionalism on some differences of opinion does not entail them for all questions on which differences of opinion might arise. Some things are indeed better than others ‘only by convention’, but justice is better than injustice ‘by nature’. On what grounds can such a distinction be drawn? Broccoli’s superiority over chocolate cake cannot be deduced from sheer tasting, which might well yield precisely the opposite conclusion. It follows only from examination of a broader pattern, extended over time or over individuals. It is law-bound, generally true (i.e. more than just randomly or incidentally true) over a meaningful number of instances, distinguishing nutritional from culinary superiority. It is unlike any individual, purely culinary preference for chocolate cake at a particular instance, which prevails regardless of any law dictating broccoli’s nutritional superiority. That law-bound quality is not rule-bound in any mechanical sense. Someone eating nothing but broccoli over a long time might benefit from something different, even from cake. Similarly, for Aristotle, law as nomos is too contextual, too steeped in complex relationships of acts and values for ‘law-bound’ to mean ‘strictly rule-bound’.

Nor does the fact that some things are better than others ‘by nature’, i.e. in a law-bound way, mean that their superiority is immediately manifest. When Aristotle contrasts truth or goodness by nature with truth or goodness by convention, he suggests that things discoverable as true or good by nature, through dialectical inquiry, are not perforce those appearing true or good in immediate experience. The former become true through a sufficiently law-bound character which fails to inform the latter to the same degree:

For Aristotle, good cake is a question of taste, precisely unlike justice, because cake, unlike justice, is not at all of the type of thing that is pleasant ‘by nature’, i.e. through any law-bound quality. No dialectical enquiry can proceed beyond our immediate sensations of chocolate, spice and lemon towards superiority of one or the other by nature. Value judgements about it remain subject to personal preference. From that observation, it does not follow that all normative evaluations are equally random. Some are more like the apple tree than the cake:

From the premise that the justice or injustice of our deliberated acts are just or unjust by nature, Aristotle does not infer a fixed human nature that is just or unjust. He does not think, like Rousseau, that we are just by nature, but corrupted by society, nor, like Hobbes, that we are unjust by nature, through necessary selfishness, until we are corrected by society. Aristotle postulates neither an inherently thriving nor inherently withering tree regardless of the soil. The soil is all. The tree’s nature is to respond to it:

For Aristotle, the best or highest purpose of human law – justice – is neither something hovering divinely over us (contrary to vulgar accounts of natural law), nor something merely imagined within us. It is a potentiality, and must be cultivated; that is the most important human mission. Unsurprisingly, as for Plato, law’s primary task, and its primary support, is education aimed at cultivating character (e.g., Pol. VIII). Again, regardless of whether we agree with Aristotle’s positive ethics, his meta-ethics presuppose that any ethics underlying law, albeit objectivist (i.e. anti-subjectivist, anti-relativist) and law-bound, need be neither strictly rule-bound nor immediately apparent in its law-bound quality. Matters of law, justice or ethics plunge reason into a complex world of lived experience:

Again, one thinking along Kantian a priorist lines would only need to reason hypothetically in order to reach correct ethical conclusions. Aristotle never presents his ethical dialects or his ethical objectivism in that way. Some adequate, everyday experience, and even emotional maturity, is ethical reason’s resource. Aristotle famously observes:

7 Law presupposes a concept of the ‘human’

Within Aristotle’s positive ethics, even politics as politikē cannot lay unqualified claim to being or to achieving the highest good. Committed political activity can produce disastrous results. What, then, must politics aim to achieve? Once again, the reply, expressly invoking a popular and ordinary notion, seems trivially obvious:

‘Happiness’ translates eudaimonia. That word’s etymology means ‘good spirit’ (Kraut, Reference Kraut2006, p. 53), though Aristotle’s interpretation of it entails nothing supernatural. In observing the common, ‘verbal’ agreement among people that the highest good is happiness, Aristotle recognises that we can find easy enough consensus on that value, only to end up disagreeing on what, exactly, it is, or requires or produces. For Aristotle, then, eudaimonia plays a meta-ethical role. Any positive ethics as such must assume and aspire to some eudaimonia, even if opinion varies on what eudaimonia is or how it is best pursued. Aristotle goes on to make that point: ‘with regard to what happiness is [people] differ’ (NE I.iv.1095^a20). Ethical objectivism is of little value if it can produce only an empty formalism, a hollow ideal of ‘happiness’, embracing no shared concept about what it is, thus immediately degenerating into relativism as soon as we seek specific content for it:

Kant admittedly poses a challenge, not simply to positive eudaimonism, but, more importantly, to Aristotle’s meta-ethical eudaimonism. For Kant, justice requires only obedience to moral law, irrespective of any consequential pleasure or benefit. To be sure, for Aristotle, eudaimonia is not merely consequential enjoyment or benefit. It constantly involves duty-bound conduct. Moreover, Kant concedes happiness – certainly a communal and duty-bound concept of happiness – as deeply relevant to moral law, albeit not its decisive principle. For Kant, even a eudaimonist positive ethics would be justified only derivatively, on grounds of strict adherence to moral law. In view of that Kantian challenge, and any other such challenges, can Aristotle’s eudaimonism stand as meta-ethical?

Aristotle depicts eudaimonia as both ‘living well and doing well’ (I.iv.1095^a18, retaining Ross’s original). Irwin observes that, in identifying eudaimonia with both ‘living well and doing well’, Aristotle ‘suggests that eudaimonia (a) involves one’s life as a whole, and (b) consists in action’ (Aristotle, Reference Aristotle and Irwin1999, p. 175). Aristotle rejects an individualised, isolated or private understanding of happiness. There is no purely personal, purely private happiness. In response to Athens’ highly commercial economy and values of individual freedom, Plato had asked, ‘[D]oesn’t [the] privatisation of pleasures and pains dissolve the city?’ (R. 462b–c). Individual happiness arises through participation in society – not a rote, coerced, brainwashed, Orwellian participation, but participation that effectively helps to maintain or to improve overall welfare. Aristotle’s eudaimonia is political, i.e. of the polis.

Aristotle rejects a purely ‘managerial’ regime of law, by which rule over humans would scarcely differ from rule over livestock. Managerial law devises norms and practices to promote, perhaps, an inertly, materially satisfied, yet a wholly subjected, politically passive populace. Aristotle’s eudaimonia is realised only insofar as the citizen who is bound by law also regularly takes part in the deliberations and processes of making and applying law. That view resonates with the aforementioned one that, lacking experience, ‘a young man is not a proper hearer of lectures on political science’ (NE I.iii.1095^a2). Aristotle’s eudaimonist, citizen-based concept envisages the making and application of law as the product of citizens constantly involving their own immediate experience of community life and circumstances. For Aristotle, then, law presupposes a concept of the human, of the best possible human life as contrasted with sheer survival. Kant, too, theorises the human, the highest expression of which he finds in reason’s amenability to universal law. Once again, further theories could be added. Christian natural law theorises the human in terms of fall and salvation; libertarianism, in terms of maximum individual freedom, and so forth. For all their differences, then, Aristotle suggests the meta-ethical principle that each positive ethics attributes to law some concept of the human.

Aristotle is a naturalist, who will bequeath extensive observations of animal species (e.g. Gen. An.; Hist. An.; Part. An). The individual and group traits of animals interest him; indeed even the less empirical work of Plato often examines animal conduct for insight into humans. Some animals, upon maturity, leave their mothers and lead solitary lives, associating only sporadically to mate. Their good arises through solitary survival. Others, like bees, are collective to the point of living like a single organism, the survival of one readily sacrificed for the good of all. Such references are common in ancient writings, as, even today, naturalists examining animal behaviour (care, aggression, etc.) may be raising questions of interest to human relationships.

It is in earnest, then, that Aristotle asks what kind of animal the human is. It is a way of contemplating conspicuously human traits, which may serve to identify what is distinct about humans’ best conditions for life. Aristotle distinguishes us, calling the human being a ‘political animal’ (NE I.vii.1097^b11). That English translation has acquired such different meanings, however, that translations often avoid it, preferring, for example, ‘man is born for citizenship’ (Aristotle, Reference Aristotle, Ross and McKeon1941, p. 942), ‘man is sociable by nature’ (Aristotle, Reference Aristotle and Barnes1984, p. 1734) or ‘man is by nature a civic being’ (Aristotle, Reference Aristotle, Rowe, Rowe and Broadie2002, p. 101). The colloquial English phrase ‘political animal’ has come to suggest slick or manipulative conduct, geared toward self-promotion, in government or other institutional settings. Aristotle’s point is ontological, intending, at least ideally, the opposite of opportunist self-interest. Our fundamental ‘nature’ is part and parcel of society. Its laws will manifest in our constitutive individual and social being. In Broadie’s words, ‘human nature comes to full development’ in the polis (Aristotle, Reference Aristotle, Rowe, Rowe and Broadie2002, p. 275):

What causes something to be a human being? The material cause is arms, legs, brain, heart, lungs and other organs or attributes. The formal cause is the specific arrangement of those things in contrast to the arrangement which would produce an ape or a cat. The efficient cause is conception, germination and birth. But the final cause? The function of the human, like the economic, military or leisurely function of a ship? Such a question creates some embarrassment for Western modernity. Starting with Machiavelli and Hobbes, political and legal philosophy certainly ask what is good for us, but rarely asks how such good serves some broader purpose of the human being as such. Starting with Bacon and Descartes, scientific enquiry can tell us more and more about the material and efficient elements of both organic and inorganic phenomena (the formal elements rendered superfluous), but defines purposive, teleological inquiry as, by definition, beyond the scope of empirical analysis, consigning it to the supernatural.

For Aristotle, both the human and the good, hence the legal regime which betokens us as ‘naturally political animals’, can be understood only in terms of that broader purpose. Again, a tulip may flower in partly sandy soil, but will flower more fully, and in that sense, for Aristotle, most fully realise its ‘end’ (telos) in fertile soil. Children may survive with little education, but, we widely feel, can more fully realise their ends as human beings with good education. Material, efficient and formal cause provide complimentary, and not surrogate, explanations to the purposive.

For Aristotle, the function of plants, unlike that of humans, does not extend beyond ‘nutrition and growth’ (NE I.vii.1098^a2), which cannot therefore be specifically human. Aristotle then proceeds to distinguish us from other animal species:

The function of the human is to be found, then, in what distinguishes the human animal, namely, reason, as already anticipated by our characterisation as ‘naturally political animals’:

The distinctively human is defined as both political and rational, as, alone, neither attribute would suffice. To define us only as ‘rational’ would not logically contradict a non-political nature; and to define us only as ‘naturally political’, without adding the ‘rational principle’, would leave indeterminate the specific traits of the human polis as compared to other animal collectives, which, however sensitive, intuitive or astute, show no evidence of organising their communal life according to deliberative, dialectical reason. Aristotle identifies the distinct function of the human life, then, with reference to ‘the element that has a rational principle’, which, in turn, enables ‘activity of soul in conformity with excellence’.

That view would have considerable consequence for natural law theory. In the Western tradition, faith-based natural law posited God and His revealed law as authoritative, beyond rational demonstration. The revival of Aristotle in Europe in the Middle Ages struck a blow to faith-based natural law, spurring a rationalist theology which would argue that revealed law can be substantiated through dialectical reason, nowhere more rigorously than in the theology of St Thomas Aquinas. Aquinas alters Aristotle, insofar as salvation becomes the overriding purpose of deliberated human activity, displacing Aristotle’s concept of constructive participation within the polis as the highest good, and therefore the highest aim for law.