I. THE ARISTOTELIAN LAWGIVER IN CONTEXT

The figure of the lawmaker (νομοθέτης) is pivotal to Aristotle's practical works. This centrality is perhaps most evident in the Politics, where the survey in Book 2 of constitutional regimes and the discussion of the best regime in Books 7–8 conspicuously adopt the viewpoint of the founding legislator. The attribution of a central role to the lawmaker is prefigured by the transition from Eth. Nic. 10.9 to the Politics, which is a preliminary attempt to answer how one can become a legislator capable of making citizens good (Eth. Nic. 1180a34, 1180b25, 1180b30). In the final passage of Eth. Nic. 10.9, Aristotle thus claims that prior thinkers have not adequately uncovered what pertains to legislation (νομoθεσίας) and constitutions (πολιτείας), and notes that the completion of the philosophy of human affairs depends on this investigation (1181b14–15). In the opening of the Nicomachean Ethics, Aristotle elaborates on his argument that political expertise (πολιτική) is the most architectonic and authoritative of the sciences by reference to its function in setting down laws regarding what actions citizens ought to engage in and abstain from (1094b5–6). The end of the political expertise of the true statesman (τῆς πολιτικῆς) is the ultimate human good, which is pursued through legislation (1099b29–32, 1102a7–25). Consistent with this, in Eth. Nic. 6.8 Aristotle suggests that legislative science (νομοθετική) is the architectonic part of the practical wisdom concerned with the polis (1142a24–5). The perspective of the lawgiver also features, albeit less prominently, in discussions of the ethical virtues. At the beginning of Eth. Nic. 2.1, for example, Aristotle introduces the principle that one attains virtue by engaging in good activities with the statement that the aim of lawgivers is to habituate citizens to become good (1103b4). Similarly, in Eth. Nic. 3.1, Aristotle introduces the theme of the voluntary and the involuntary by reference to its usefulness for lawgivers, who must mete out both honours and punishments (1109b34–5).

The Aristotelian lawmaker, none the less, raises difficult interpretative questions. In the first instance, Aristotle presents the lawmaker in different contexts as a theoretical ‘political scientist’, as a doer of political actions and as a craftsman or ‘producer’.Footnote ³ In Eth. Nic. 10.9 Aristotle portrays the legislator as someone engaged in a form of political science (ἐπιστήμη) which has access to universals (1180b20–3). This characterization is consistent with the suggestion in Books 4 and 7 of the Politics that the role of the νομοθέτης is to study (θεωρῆσαι) political communities and constitutions and what is to their advantage (Pol. 1288b21–30, 1297b38–9, 13257–10). Aristotle also suggests, however, that the legislator is truly a politician (ἀλήθειαν πολιτικός) in so far as they intend to make citizens good and obedient to the laws (Eth. Nic. 1102a8–10; cf. Pol. 1274b36–8, 1288b27, 1309b35–6). The legislator in this guise appears as an active practitioner of politics—someone concerned with useful action as well as knowledge (Pol. 1253b14–18, 1258b9–10; Eth. Nic. 1095a5–6, 1103b26–9, 1179a35–b4; Metaph. 993b20–1)—and not merely a politically inexperienced theorist of constitutions and laws of the kind criticized in Pol. 2.12. From this perspective, laws are identified as the works or deeds (τὰ ἔργα) of the activity of true politics (Eth. Nic. 1181a23). Exponents of true politics have a privileged role in the realization of the human good, and are plausibly also to be regarded as the primary intended audience of the practical works (Eth. Nic. 1102a8–23, 1109b34; Pol. 1288b27, 1289a7, 1309b35–6, 1319b33).Footnote ⁴ Further complicating matters, Aristotle frequently characterizes the legislator in terms (Pol. 1267a118, 1268b9–10, 1271b30–2) which strongly imply that law-making is a form of production akin to a craft (τέχνη). Viewed from this angle, legislators are craftsmen (δημιουργοί) of constitutions and laws (1273b32–3), which are produced ‘out of’ prior material, including the citizens, territory and population. Law-making thus seems awkwardly to traverse Aristotle's distinctions between theoretical, practical and productive thought (Metaph. 1025b25, 1064a16–19; Top. 145a15–16) and scientific, practical and productive knowledge (Eth. Nic. 6.5–6).

The second major and closely related puzzle raised by the lawmaker is that the ascription of a decisive role to their legislative agency appears to be in direct tension with Aristotle's much better-known political naturalism. Immediately following the argument that the polis is prior to the individual by nature, Aristotle states the following on the origins of the political community (Pol. 1253a30–3):

In the survey of constitutional forms in Politics Book 2, Aristotle proceeds to characterize exemplary founding legislators, such as Solon and Lycurgus, as craftsmen (δημιουργοί) of constitutional orders in a way which suggests that the intentional activity of law-making is both an efficient cause in the political domain and a necessary condition for the formation of the polis (1273b31–5). The truth of the claims in Politics Book 1 that humans are political by nature and that the polis arises by nature (rather than merely by convention or νόμος) also seems, however, to preclude the view that the existence of a political community requires the intentional activity, the artifice, of a human lawmaker. None the less, Aristotle's characterization of legislators as craftsmen and of political science as craft (Pol. 1253a30–1, 1266b34–8, 1273b32–3, 1274b18–19, 1282b14–16, 1325b40–1326a5), noted above, seems to entail that the polis is a product of human agency.

Aristotle's employment of the contrastive μέν–δέ grammatical construction above points to the fact that the attribution of a decisive role to the founder of the polis is in at least apparent tension with the arguments for political naturalism. In this context, it is revealing that Aristotle refers to the founder of the political community as the cause (αἴτιος) of the greatest of goods, which is inconsistent with the legislator playing a merely ancillary role. As a consequence, the only two viable options would appear to be either that there is a contradictory ‘blunder’ at the foundations of Aristotle's political philosophy or that the two commitments are in some way reconcilable.Footnote ⁵

This section attempts to set the scene for my arguments in the following two sections that (1) law-making is primarily a practical activity and that (2) nature and the constitutional founder are cooperative causes of the polis.Footnote ⁶ Τo resolve the questions above, however, it is first helpful to consider some of the presuppositions of Aristotle's appeal to the architectonic constitutional founder. As will become clear in sections II and III, this context is highly instructive for understanding the role of legislative agency in Aristotle's political thought, in so far as it points to the status of the lawmaker as an exemplar of a practical rationality and insight which fulfils distinctly human nature.

Aristotle's attribution of a pivotal role to the legislative art reflects broader influences than the Greek tendency to venerate original constitutional founders such as Solon and Lycurgus. The nomen agentis compound νομοθέτης (‘law-giver’) emerged in the fifth century b.c.e. as the term νόμος became more narrowly associated with enacted political and legal norms following the reforms of Cleisthenes.Footnote ⁷ Aristotle's fourth-century presentation of νομοθετική and the activity of the νομοθέτης conforms to this fifth-century shift in the meaning of νόμος and its compounds towards a more prescriptive legal sense reflective of a new emphasis upon the role of human agency in the political domain. Whereas uses of νόμος in the Archaic period tend to express the immutability and timelessness of customary practices and ways of life, from the Cleisthenean reforms this usage was ‘overshadowed by the idea that human agents now became the authors, formulators, enactors, and enforcers of a νόμος that could no longer be taken for granted’.Footnote ⁸

Although Aristotle employs νομοθέτης to refer both to ‘mere’ legislators and to those responsible for establishing a new constitutional order, it is the latter kind of lawmaker which is privileged. Aristotle distinguishes between mere craftsmen of laws and constitutional founders as follows (Pol. 1273b31–5):

The difference between ‘mere’ lawmakers and constitutional founders is that the latter are responsible for either establishing or altering the fundamental structure of the political community. In the case of Solon, for example, reforms such as the abolishment of loans on the security of persons, the granting of legal redress to non-parties of a dispute, and the right of appeal to the δικαστήριον or popular court moved the constitution towards a more popular or democratic form.Footnote ⁹ What is distinctive of the constitutional founder is thus that they establish a new or different kind of political order (cf. Pol. 1289a1–4). In most cases a basic political community will exist prior to even a substantive legal reform. Aristotle's account of the identity conditions for political communities, none the less, entails that a change in constitutional form corresponds to a change in the identity of the political community (Pol. 1276b1–13). It is in this sense that the constitutional founder, or alternatively the craft of law-making which directs their architectonic activity, is an efficient cause for a political community.Footnote ¹⁰ Although νομοθετική applies to both ordinary law-making and constitutional founding, therefore, the latter has a privileged and focal status owing to its more original and architectonic character.

Aristotle's emphasis on the architectonic νομοθέτης also speaks to Platonic influence.Footnote ¹¹ The regimes of the Republic and the Laws are presented as foundational acts of constitutional formation. These regimes are designed in rational speech by interlocutors—led by Socrates and the Athenian Stranger respectively—who seek to introduce into politics a level of practical wisdom and insight beyond what one could expect from everyday politicians or ‘mere’ lawmakers. In Book 6 of the Republic, by reference to the possibility of a polis arising which is of a philosophic nature, Socrates points to the need for the lawgiver to possess a superior level of understanding in order to design a good constitution (497a–c). In the opening of the Laws, in a corresponding manner, the Athenian Stranger adopts the perspective of the founding legislator in the design of a regime with excellent laws and states that the worthy lawgiver must always enact laws with a view to the greatest virtue (630c).

This architectonic understanding of the constitutional founder is, in certain respects, foreign to the modern understanding of political origins. One characteristic of the ancient tradition of constitutional design is a tendency to venerate individual founders and architects, such as Solon and Lycurgus, who are attributed with rare practical experience and insight.Footnote ¹² Coherence, accountability and efficiency can be identified as merits of the ancient approach.Footnote ¹³ While this tendency remains present in modern constitutional discourse, as evidenced, for example, by the esteem granted to the American ‘founding fathers’, contemporary acts of constitutional design are generally carried out by assemblies or committees made up of multiple representatives.Footnote ¹⁴

For current purposes, the most important point to take out of this contrast is that ancient constitution-makers were regarded as endowed with exceptional practical wisdom. From an Aristotelian perspective, as I will demonstrate in sections II and III, the ‘products’ of this practical wisdom are achievements of distinctly human nature. Before I turn to this point, it is first instructive to consider examples of Greek architectonic legislating as practical wisdom.

Between 650 and 550 b.c.e. was a particularly active period for the founding and reform of Greek constitutions. Although these legal codes were not comprehensive regulations of public power akin to modern constitutional orders, they did set out systematically the fundamental norms of the political community.Footnote ¹⁵ The narratives of Greek constitution-making that have reached us also contain common themes which are revealing, regardless of exact historical accuracy, in so far as they point to the possession by founding lawmakers of an unusual level of practical insight.Footnote ¹⁶

Greek constitution-making narratives generally begin with an account of a political crisis or factional dispute (στάσις), which is subsequently resolved when a uniquely qualified and insightful lawgiver enters the scene to establish a new law code. Once the new constitutional order is established, the lawgiver frequently leaves the political stage. Despite the esteem attributed to actual or legendary lawgivers, it is thus the laws themselves which are regarded as bringing order and stability to a previously fractious or unstable political community. Narratives of constitution-making thus describe the progress of a political community from a state of ἀνομία—or lawlessness—to one of εὐνομία—the state or condition of a well-governed polity.Footnote ¹⁷ This progression can be seen in the narratives surrounding the constitutional founders of Athens, Sparta and Crete respectively: Solon, Lycurgus and Minos. The narratives surrounding these legendary lawgivers reveal some common themes regarding the nature and the source of their practical wisdom.

The appointment of Solon as a constitutional founder in Athens is attributed by both the Aristotelian author of the Athenian Constitution and by Plutarch to the need for a resolution of economic tensions.Footnote ¹⁸ According to the author of the Athenian Constitution, Solon was appointed as a mediator in response to a crisis that developed between the wealthy few, who owned most of the land holdings, and the indebted majority. Solon's broader reforms included the institution of selection for magistracies by lot in accordance with new property classes, the establishment of the Council of 400, the allocation of responsibility as guardian of the constitution to the Areopagus, and the introduction of a new right of appeal to the δικαστήριον.Footnote ¹⁹ Initially both the wealthy few and the poor majority were unhappy with Solon's reforms, but eventually the legal changes came to be regarded as a just and practically wise compromise between the different factions. Despite the fact that Solon held sufficient power to join one of the sides to the dispute and become a tyrant, the author of the Athenian Constitution suggests, it was his very outsider (and middling) status which enabled him to save his political community and provide it with the best constitution possible in the circumstances.Footnote ²⁰

The historical status of Lycurgus of Sparta is uncertain, but more pertinent for current purposes is his putative role in the establishment of the Spartan constitutional order or ‘great rhetra’.Footnote ²¹ As in the case of Solon of Athens, the reforms of Lycurgus initially sought to overcome instability caused by disputes between the wealthy and the poor.Footnote ²² The major reforms instituted by Lycurgus included the equalization of land holdings, the establishment of common meals and the implementation of the ἀγωγή or rigorous model of military education undertaken by Spartan children from the age of seven.Footnote ²³ The reforms of Lycurgus were thus oriented to the promotion of Spartan virtues of equality between full citizens, preparedness for the military, and austerity. Narrative accounts of Lycurgus generally attribute his foundational law-making to unusual practical insight. The reforms of Lycurgus were said, for example, to have been based on his extensive travels to Crete, Egypt and Ionia.Footnote ²⁴ Lycurgus’ laws were also attributed to divine inspiration, with Ephorus suggesting that Apollo gave laws to Lycurgus in the same manner that Minos received laws from Zeus.Footnote ²⁵ According to another tradition, when Lycurgus entered the Delphic temple of Apollo, the Pythia asked whether he should be considered a man or a God and greeted him as beloved of Zeus.Footnote ²⁶

Plato's depiction (or the Platonic depiction) of the legendary Cretan lawgiver, Minos, incorporates many similar themes. In the Minos, which according to its location in the Thrasyllian tetralogies serves as a preface to the Laws, Socrates rejects the view of Minos presented by both Homer and Hesiod.Footnote ²⁷ According to Socrates, Minos developed his laws after receiving an education in virtue from his father Zeus (319c–320b). Socrates thus suggests that the laws developed by Minos were grounded in a divine education in virtue and that this has led to the flourishing of the citizens of Crete (and by extension Sparta, which was influenced by the Minoan legislation) (320b). Apart from their divine origin, Socrates points to the stability of the Cretan laws as evidence of the claim that Minos applied insight into ‘what is’ (320b) in the establishment of his political community.

Although the traditions associated with Solon, Lycurgus and Minos obviously differ in historical reliability, for current purposes what is more relevant is the shared set of assumptions informing the different accounts. In all three cases, the constitutional founders are presented as in possession of a superior level of experience or wisdom, whether this be on account of extensive travel or on account of intercourse with the divine. What emerges is a picture of the constitutional founder as a practically wise person, who does an important service through the enactment of a fundamental set of legal norms which bring order to the political community.

A constitutional founder, then, of the kind distinguished from ordinary lawgivers in Pol. 2.12 is no mere politician but the exponent of an architectonic practical wisdom. The attribution of practical wisdom to the lawgiver in the genuine sense is significant, as I argue further below, for understanding how an act of legislative foundation can be both essential for the existence of the polis and consistent with Aristotle's political naturalism. Before I turn to this argument, however, it is necessary to consider the status of law-making as part of πολιτική or true political expertise.

II. LAW-MAKING AS A SUB-BRANCH OF TRUE POLITICS

Aristotle regards legislative expertise as part of true politics. This seemingly straightforward statement conceals multiple complexities. In the first instance, Aristotle uses the term πολιτική in different senses, which must be clarified in order correctly to situate law-making expertise as a mode of practical rationality (φρόνησις). Second, it is necessary to determine the relationship between the practical and the ‘theoretical’ aspects of the expertise of the ‘true politician’ (πολιτικός) and lawmaker. In this section, I argue that the lawmaker's expertise is practical and that this is consistent with the claim that the true politician and lawgiver must possess knowledge of universals. As will become clear in the final section, it is the distinctive character of the practical knowledge exercised by the prudent legislator—its concern with the ultimate human end or good (1094b7)—which allows legislative agency and political naturalism to be reconciled.

The relationship between politics (πολιτική) and law-making (νομοθετική) can be reconstructed on the basis of Eth. Nic. 6.8 and 10.9. In the opening of 6.8 Aristotle states that:

1. 1. Political expertise (πολιτική) is the same disposition (ἕξις) as practical wisdom (φρόνησις), although they differ in being (εἶναι οὐ ταὐτόν) (1141b23–4)

2. 2. The practical wisdom (φρόνησις) concerned with the city has:

1. a. an architectonic legislative part (ἀρχιτεκτονικὴ φρόνησις νομοθετική)

2. b. a practical and deliberative part, concerned primarily with political particulars, which is given the name that is ‘common to both parts’, that is, politics (πολιτική).

In Eth. Nic. 10.9 Aristotle characterizes law-making expertise (νομοθετική) as part (μόριον) of political expertise (πολιτική) (1180b31). This claim is best interpreted as referring back to Eth. Nic. 6.6, which entails that the sense of ‘part’ in play is the relation of species to genus, that is, a sub-branch.

Taken together, Eth. Nic. 6.8 and 10.9 suggest that legislative expertise is a species or sub-branch of political expertise (πολιτική), which is the same disposition as practical wisdom, but different in so far as its object is the well-being of a political community rather than of an individual. A further conclusion to draw from these passages is that legislative expertise, as a sub-branch of political science, needs to be distinguished from politics in the ‘everyday’ sense, which is concerned with the sorts of matters paradigmatically dealt with in decrees (ψηφίσματα) (1141b27) rather than in universal laws. This is the domain of ‘ordinary politics’ and it engages primarily with particulars (if it was not to engage with universals at all, then it would lose its status as a form of practical wisdom, as the concluding statements in Eth. Nic. 6.7 make clear). All of these distinctions require elaboration.

Aristotle's statements in Eth. Nic. 6.8 motivate a distinction between political expertise (πολιτική) in broad and narrow senses.Footnote ²⁸ Considered as a genus, practical wisdom (φρόνησις) divides into the three species of individual prudence (φρόνησις in the specific sense), household management (οἰκονομία) and politics (πολιτική) in the generic sense (1141b29–33). Generic πολιτική has legislative expertise (νομοθετική) as a sub-branch, while the narrower sense of πολιτική is divided into two parts: the expertise of deliberation (βουλευτική), exercised by the assemblyman, and the judicial expertise (δικαστική), exercised by the juror (1141b34).Footnote ²⁹ As noted above, what distinguishes πολιτική in the generic and in the broader sense is that it is an architectonic form of prudence, whereas by contrast πολιτική in the narrow sense deals primarily with concrete actions or particulars (1141b25–30). Aristotle thus suggests that the lawgiver, in exercising broader architectonic πολιτική, directs those engaged in πολιτική in the narrow and ordinary sense (through their activities in the assembly and the jury) in the way in which an architect or a master craftsman directs manual workers (Pol. 1325b21–3).Footnote ³⁰

As Aristotle implies in Eth. Nic. 1.2, πολιτική in the broader (and more fundamental) sense thus refers to the architectonic political expertise concerned with the realization of human virtue (ἀρετή) and well-being (εὐδαιμονία) through the activity of law-giving (νομοθετική). The end of this law-making expertise is the human good (τἀνθρώπινον ἀγαθόν) in all its manifestations. This good it seeks to attain through the enactment of binding norms concerning what activities the members of a political community are to engage in and what actions they are to refrain from (Eth. Nic. 1094b5–7). The exemplary form of πολιτική in the broader sense is hence the expertise necessary to establish, maintain and modify communal norms promoting virtue and well-being. The practically wise lawgiver is uniquely responsible for facilitating the conditions (inclusive of ‘ethical’ education) which allow the citizens of a political community to flourish, individually and in common.

Aristotle also characterizes πολιτική as the most authoritative (κυριωτάτης) of the crafts and sciences (Eth. Nic. 1094a26–7). This does not mean that political expertise is the ‘best’ knowledge concerned with the most important things; Aristotle privileges theoretical sciences such as theology, mathematics and natural philosophy (Metaph. 6.1026a18–32) when he asserts that humans are not the most serious (σπουδαιοτάτην) thing in the cosmos (Eth. Nic. 1141a22). The status of πολιτική as the most authoritative science hence requires further elucidation.

Terence Irwin usefully identifies three meanings of the term κύριος as employed by Aristotle.Footnote ³¹ In the first instance, if X has power over Y, then X may be said to be κύριος in relation to Y. When one is κύριος over an event, for example, one determines voluntarily whether it occurs and assumes responsibility for its occurrence. This meaning of the term explains the use of κύριος to designate a ruler or commander (Eth. Nic. 1116a30–3) and practical authority more generally, including the authority of the laws. Aristotle states at one point, for example, that the laws should be κύριος except in regard to those matters that cannot be legislated because they are too contingent to fall under general rules (Pol. 1282b1–5). Second, κύριος is used by Aristotle to denote importance, in the sense that what is in control of a process can be attributed with pre-eminent significance (Eth. Nic. 1143b34, 1145a6, 1168b30 and 1178a3). Finally, κύριος can designate the property of being complete, in the sense that a κύριος F is F most completely, in comparison to things that are only partially F (see Eth. Nic. 1098a6b14 and 1103a2). The first two meanings help to explain Aristotle's use of κυριωτάτης as a superlative describing the status of πολιτική in relation to other arts or sciences. For to say that a form of knowledge X is authoritative over other forms of knowledge Y, Z, etc. is to suggest that X governs Y, Z, etc., and does so on account of its pre-eminence. Yet, this analysis of κύριος can only get us so far in understanding the claim that πολιτική is the most authoritative of the sciences.

In Eth. Nic. 6.1 Aristotle identifies the ‘calculative’ (λογιστικόν) faculty with deliberation (1139a12–13) and hence with practical reason (cf. Pol. 1333a16–26). The part of the soul that possesses authority over the non-rational parts is the deliberative rather than the contemplative, and the role of practical wisdom (φρόνησις) is to deliberate about the way to attain a good end (Eth. Nic. 1140a24–1140b30). From this perspective, φρόνησις is distinguished by its capacity to issue orders with regard to what should be done (1143a9–10) in particular circumstances. It is because the irrational parts of the soul are capable of listening to reason in the same way that someone can listen to their parents or a friend without themselves possessing reason in the full sense (Eth. Nic. 1102b30–5) that force is not always required in politics. Good laws enacted by a legislative expert can serve as rational guides to conduct for citizens ordering their communal life.

Obviously a good legislator must also be able to deal with less than ideal political circumstances and citizens. In Pol. 4.1, Aristotle compares the skill of the political expert to a physical trainer (1288b10–20). Just as the skilled physical trainer should know the kinds of training suitable for those with athletic shortcomings as well as for more gifted athletes, so must the architectonic legislator know what will improve defective regimes as well as the conditions for ideal political orders. Indeed, Aristotle criticizes writers on politics who focus only on the highest constitution or ignore those constitutions actually in place (1288b39–1289a1). The reach of πολιτική thus extends beyond ideal and correct constitutions to the effort to improve (and also sometimes to preserve) defective regimes, as Aristotle's analyses in Books 5 and 6 of the Politics demonstrate.

Aristotle's classification of πολιτική in the generic sense as a species of (generic) φρόνησις suggests that it is a strictly practical disposition and that the same applies to νομοθετική considered as a species of generic πολιτική. Several passages in Aristotle's work, however, indicate that there is a non-practical component to architectonic law-giving expertise and these have even led some interpreters to claim that the Aristotelian legislator is a theorist without an active political role.Footnote ³²

As noted above, Aristotle's treatment of architectonic or broad πολιτική entails a contrast between the kind of φρόνησις exercised in the framing of constitutions and laws and the narrower form of political prudence at work in deliberation about concrete practical affairs. The latter is, plausibly enough, a more ‘strictly’ practical disposition (Eth. Nic. 1141b26–8). In the case of legislative expertise, by apparent contrast, Aristotle states that those people act in the strict sense, who, like architects, direct the actions of other people by their thoughts (Pol. 1325b21–3). Rather than construe this as meaning that the legislator is a mere ‘political theorist’, however, it is preferable to acknowledge that the sort of practical activity engaged in by the true legislative expert necessarily draws on universals (and practical truths and principles) in its dealing with diverse particulars.

Confusion can arise because πολιτική abbreviates πολιτική τέχνη or ἐπιστήμη. Aristotelian πολιτική is clearly not an ἐπιστήμη in the unqualified (ἁπλῶς) sense of An. post. 2.2 (the cognitive state by which we grasp the causes of necessary facts that could not be otherwise [An. post. 71b9–16]) or of Eth. Nic. 6.3 (the faculty of knowledge that draws true conclusions regarding the unchangeable objects grasped by the intellect [νοῦς]).Footnote ³³ One should instead interpret political (and hence legislative) expertise as falling within the broader sense of ἐπιστήμη found in Metaph. 6.1 (and implied by Eth. Nic. 1.1 and elsewhere), which includes practical and productive ‘sciences’ and designates an area of enquiry concerned with providing a rational account of the explanatory causes and principles of a particular domain.

Metaph. 6.1 states that, while all sciences deal with causes and principles, these can be determinate or indeterminate (Metaph. 1025b7). In order to understand πολιτική (and hence νομοθετική) as practical, one must therefore attend closely to Aristotle's characterizations of φρόνησις as (1) a true state involving reason, concerned with what is good or bad for a human being and (2) not concerned with universals alone but also engaged directly with particulars (Eth. Nic. 1140b5–6, 1141b15–16). Whereas (1) points to the object or end of φρόνησις, that is, the human good, (2) refers to the diverse sorts of particulars engaged with by the different modes of φρόνησις (individual, domestic, political/legal). On account of the variability of their subject matter, and applied character, political and law-making expertise clearly admit of less precision than theoretical sciences such as mathematics (Eth. Nic. 1094b11–27). Practical sciences are, like the natural sciences, rather concerned with what holds ‘for the most part’ (ὡς ἐπὶ πολύ). Their propositions also, in contrast to both theoretical and natural sciences, seek to prescribe human action rather than to describe the external world.Footnote ³⁴ None of this precludes legislative expertise, as the intellectual virtue of the true politician (1141b29–32), from accessing universals as part of its intention to realize the human good.

Aristotelian political and legislative expertise contain, as modes of φρόνησις, both a universalist and a particularist component.Footnote ³⁵ The universalist component is evident in Eth. Nic. 10.9. A person attempting to become a skilled legislator must proceed to the universal (ἐπὶ τὸ καθόλου), because the project of making people good through law would best be realized by those who know (τοῦ εἰδότος), as is the case with medicine and whatever else has a certain care and prudence (ἐπιμέλειά τις καὶ φρόνησις) associated with it (1180b20–8). A doctor who only knows anatomy and has no practical experience is unlikely to be effective, and yet one equally expects a doctor to have some universal knowledge of what does and does not work to promote health. In a similar way, the legislator, in exercising a practical disposition, needs to draw on universal practical truths in their law-making activity.Footnote ³⁶ This activity also remains directed at particulars, in so far as it enacts laws for a singular political community.

The statement that the lawgiver must ‘proceed’ to universals in order to legislate effectively accordingly does not entail that law-making expertise is a form of non-practical ‘political theory’. It rather means that the prudence exercised by the lawmaker draws on practical truths about human nature and abiding features of political communities. An example of the sort of knowledge required by the good lawmaker can be seen in the claim that the politician must investigate (ἐπισκοποῦσι) phenomena such as the human experience of pleasure and pain if they are to perform their function effectively (Eth. Nic. 1109b32–5). While it is possible to envisage exceptions, it is true that people will pursue pleasure and avoid pain, and moreover that the sorts of pleasures they pursue and pains they avoid will be relatively predictable given human nature. Further examples of truths that would need to be understood by the Aristotelian lawmaker include the tendency for the human soul to be influenced by music and other poetic forms, as suggested by the program for rearing and education outlined in Politics Books 7 and 8, and the need to regulate property relations in conformity with human nature discussed in Books 1 and 2. The Aristotelian founding legislator is accordingly a practically wise politician who applies insights from the experience and study of human affairs, understood as informed by regularities, to the establishment of constitutions and laws.Footnote ³⁷ These constitutions and laws are directive of the human good, both in the sense that they embed practical principles and truths and because they govern concrete situations and particulars.

A founding legislator must of course engage with the distinctive situation of potential or existing political communities (Eth. Nic. 1180b27; cf. Pol. 1327b20–38). Good laws thus require insight into particulars. Yet, laws are also necessarily universal in their formulation, and their prescriptions are supposed to apply to many circumstances (Eth. Nic. 1137b13). This means that a legislator will be unable to engage effectively with the relevant particulars in the absence of a broader understanding of the human good and the sorts of political and legal structures which promote virtue and well-being. The activity of legislating is thus confirmed as a mode of practical wisdom (φρόνησις), because in its aiming at the good it deals with both universals and their application to particulars. In governing human actions, the law, moreover, draws on practical truths and prescribes universal norms that are intended to guide conduct. Legislative expertise remains practical because it is a true state of reasoning regarding the end of law, that is, the well-being of political communities and individuals.

The authoritative status of legislative expertise as a privileged exercise of πολιτική should accordingly be understood as follows. The principal role of legislation is to provide a framework of norms conducive to human flourishing. In this context, Aristotle suggests that good laws presuppose knowledge of what is good for people (Eth. Nic. 1180b13–16). Practical truths form the basis for good legislation, precisely in so far as, if a person wishes to achieve mastery of a craft or a science, they must seek knowledge of the universal (1180b20–3). Experience and sound practical judgement concerning the correct application of universals to diverse cases is also crucial in the realm of political affairs, as the legislator seeks to determine what kinds of norms and laws are appropriate for diverse communities and individuals. For Aristotle, what differentiates the φρόνησις of a private person from that of someone regarded as an exemplary statesman, such as Pericles, is that in the latter case practical knowledge extends to knowledge of what is good for humans as such (1140b4–11). Legislative expertise, in seeking this good, is confirmed as a genuine mode of practical rationality.

III. THE LEGISLATOR AND POLITICAL NATURALISM

Aristotle's architectonic legislator, the previous section has demonstrated, exercises a mode of φρόνησις which accesses universals and practical truths in its engagement with particulars. The conclusion that legislative expertise is a practical disposition that draws on universals does not explain, however, why Aristotle also presents it as a form of ‘craftlike’ production (Pol. 1253a30–1, 1266b34–8, 1273b32–3, 1274b18–19, 1282b14–16, 1325b40–1326a5). This feature of Aristotelian law-making is especially puzzling in so far as the claim that the intentional activity of the legislator is both an efficient cause and a necessary condition for the polis seems, for the reasons discussed in section I, difficult to reconcile with the proposition that the political community is a naturally arising entity. In this final section, I argue that Aristotle's commitment to legislative agency as a necessary condition for the polis is, in fact, consistent with his political naturalism. Legislative agency is required, on Aristotelian assumptions, to complete our natural potential for political life. Both the establishment of political communities and the enactment of laws arise out of the capacity humans possess, as practically rational beings, to promote the structural conditions for human flourishing. The establishment of constitutions and laws is, in addition, ordered to the same end—human flourishing—that it is the nature of the practically reasonable agent to pursue.

Both the designation of the lawmaker as a δημιουργός and the treatment of νομοθετική as a craft seem to conflict with Aristotle's well-known distinction between practical and productive sciences (Top. 145a15–16; Metaph. 1025b25, 1064a16–19; Eth. Nic. 1139a26–8). An instructive example of this tension is the discussion in Pol. 7.5 of the origins of political community. The best regime cannot exist, Aristotle notes, without the appropriate citizens and territory. Just as other craftsmen, such as the weaver or the shipbuilder, need suitable material (ὕλην) to work on … so too must the political expert and the legislator (τῷ πολιτικῷ καὶ τῷ νομοθέτῃ) have the proper material in an appropriate condition (1325b37–1326a5). Aristotle's analogy thus suggests that the legislative expert imposes constitutional form upon the material (ὕλη) constituents of a polis such as population and territory. This conforms to the standard model of ποίησις, whereby the craftsman, or their craft, is an efficient cause and the τέλος an external object (Eth. Nic. 1140a1–25; Metaph. 1025b25).

If law-making is a τέχνη and its products (constitutions and laws) external ends which are the outcome of a process of ποίησις rather than πρᾶξις (Eth. Nic. 11040a1–23), then this obviously undermines the conclusions of the previous section regarding the status of legislative expertise as a mode of φρόνησις and as therefore genuinely practical.Footnote ³⁸ If law-making is a productive science, moreover, then the thesis that nature and the lawgiver are ‘cooperative’ causes of the polis appears to face insurmountable obstacles. On a ‘pure’ productive model, the legislator would not only be the efficient cause and necessary condition for the polis (in the same way that a craftsperson of a bed—or the craft of bed-making—is the bed's efficient cause and a necessary condition for its existence), but the constitution would be an artefact external to legislative ποίησις. Aristotle's opposition between nature (φύσις) and art (τέχνη) (Ph. 198a10; Metaph. 1032a12–13; Eth. Nic. 1112a31–3; Pol. 1333a23) excludes the possibility that the polis is naturally emerging on this set of assumptions.

Now Aristotle's statements on foundational law-making do imply that legislative activity culminates in a finished product in the sense that the polis—understood as a political community which has a constitutional structure and is governed by law—is the outcome of the imposition of form upon the political matter of citizens and territory. Likewise, there is a sense in which laws, particularly written laws, are external and ‘public’ articulations of the core customs and beliefs of a political community. Yet, as seen above, Aristotle is unequivocal that law-making is a sub-branch of πολιτική and hence a mode of practical rationality. As a consequence, the end of law-making should be understood on the internal model of praxis rather than on the external model of productive activity.

Both production and practical activity involve human agency. With ποίησις, the principle of movement is in the ‘producer’. With πρᾶξις, by contrast, the principle of action is in the ‘doer’, that is, the person engaged in the activity as a practically rational being. In this case, ‘what is done’ and ‘what is chosen’ through the activity are ultimately the same (Metaph. 1025b25–6). In both cases, therefore, an agent is responsible for an action, but in the case of a practical disposition the telos is the human good, not an external product. As seen in section II, the end of political and legislative expertise is none other than the human good (τἀνθρώπινον ἀγαθόν) in all its manifestations (Eth. Nic. 1094b5). The foundational activity of enacting a constitution is hence not merely a matter of distributing offices and honours and enacting laws, considered as external products, but the establishment of a ‘way of life’ (βίος) for the polis (Pol. 1295b1). In the case of just constitutions directed to the common advantage, legislative activity will at least approximate its τέλος. And this τέλος is in turn a reflection of our nature as practically rational political beings, such that the ultimate end of law-making is in one sense the same as the end of human flourishing. An explicit conceptualization of foundational law-making in these terms under Aristotle's model of action is accordingly the first step towards a reconciliation of legislative agency and political naturalism.

Τo elaborate on the ramifications of this point regarding the reflexivity of practical activity, it is helpful briefly to rehearse the main tenets of Aristotle's political naturalism. The three tenets are that the polis is by nature (Pol. 1252b30, 1253a2, 1253a25, 1328a22), that the polis is by nature prior to the individual (1278b19) and that humans are by nature political animals (1253a2–3).Footnote ³⁹

Aristotle argues that the polis is by nature because it is complete, attains the end of self-sufficiency and exists for the sake of the good life (Pol. 1252b27–30). The polis also exists by nature in so far as it develops from more basic forms of natural association and because it is through participation in political community that humans are best able to approximate perfection (Pol. 1252b27–1253a4).Footnote ⁴⁰ The difference between a mere association for mutual agent-relative advantage through exchange and contract and the political association in the focal or true sense is that the polis exists for the sake of the good life, that is, the provision of those conditions necessary for human excellence and flourishing (Pol. 1280a31–1281a5). This explains the import of Aristotle's polis ‘priority’ claim (Pol. 1253a19–28):

For the argument to be sound it is necessary to assume that Aristotle is referring to parts which are not self-sufficient apart from the whole (as with the human hand). There is a sense in which humans lack self-sufficiency suggested by Aristotle's quasi-genetic account of the polis as arising from more basic associations between men and women, masters and slaves, households and villages. Although the importance of this sense of self-sufficiency is not to be underplayed, there is also a teleological sense of self-sufficiency operative in the Politics according to which the polis is a natural and complete community (Pol. 1252b26–1253a18), because it enables its members to achieve εὐδαιμονία through the virtues. The whole (polis) precedes the parts (citizens), because the full realization of human nature presupposes circumstances only available in a polis.Footnote ⁴¹

Aristotle's political naturalism is thus best interpreted teleologically by reference to the fact that the nature (φύσις) of a thing, its function (ἔργον) and its end (τέλος) are ‘systematically related’: the end of a natural entity is to realize its nature in the performance of its function (Eth. Nic. 1168a6–9).Footnote ⁴² The natural end of the political community and its purpose are to allow for the actualization of the human potential to lead a life of virtue and well-being consistent with our rational capacities.

The teleological character of Aristotle's political naturalism does not mean that the polis is a natural entity in the strict sense of Physics Book 2. According to this narrower sense of things which exist by nature, rather than by other causes, natural entities have an internal source of change, that is, each natural entity has in itself a principle of motion and rest, whether regarding place, growth, etc. (Ph. 192b18–25). Aristotle contrasts this sense of nature explicitly with products of art (τέχνη), such as a bed, where there is an external cause, that is, an artisan (τεχνίτης) or a craftsman (δημιουργός) who is engaged in the activity of producing the bed on the basis of the relevant craft (Ph. 192b30–1).Footnote ⁴³ Aristotle's introduction of his arguments for political naturalism with the statement that ‘as elsewhere it is by looking at how things develop naturally from the beginning that one may best study them’ (Pol. 1252a24–6) could certainly suggest that he intends to argue that the polis is a natural entity in the strict sense, but such an interpretation is clearly inconsistent with his account of legislative agency. A better approach is accordingly to seek a broader sense of nature that is reconcilable with Aristotle's commitment to the status of the legislator as an efficient cause.

The discussion in Ph. 2.8 of why nature is a cause which acts for the sake of something provides the basis for such an extended concept of the natural.Footnote ⁴⁴ Here Aristotle maintains his distinction between natural entities and products of craft. Despite their differences, in both cases the relevant entities are for the sake of their ends, and in some cases art completes what nature cannot bring to its completion (Ph. 199a9–18). For the natural realm, in addition, there are types of development which cannot be regarded as involving internal principles of change in the narrow sense of Ph. 2.1, yet none the less emerge as a result of directedness to an end that is natural. Aristotle thus notes the way in which swallows construct nests and spiders make webs (199a29–30) in order to look after their offspring or pursue the conditions for their sustenance and survival. These ‘activities’ are a function of natural impulses, rather than a result of enquiry or deliberation, but also involve a sense of the natural that is not strictly speaking classifiable in terms of an internal principle of movement, growth or change.

Ph. 2.8 thus plausibly points to an extended conception of the natural, according to which not all entities which have a ‘standard’ nature find their completion in a purely natural process involving internal principles of change. Applied to the human domain, this suggests that political activities—pre-eminently law-making—derive from natural impulses and are necessary to complete the work nature is unable to complete.Footnote ⁴⁵ Analogous to a spider constructing a web, the activity of the architectonic legislator arises from the natural human impulse to live in well-governed political communities. In so far as such communities are necessary for a life of self-sufficiency consonant with virtue and flourishing, the impulse of human nature towards the good life motivates the design of forms of political order which serve to promote our natural ends.

Aristotle's discussion of the extent to which the human virtues are natural supports this interpretation. In Eth. Nic. 2.1, Aristotle argues that the virtues arise in us neither by nature nor apart from nature (1103a24–5). Virtues are capacities that require the assistance of habituation to develop fully; hence the well-known claim that one becomes good by performing the acts of a good person (1103a7–b25). It is also by engaging in good actions and by refraining from base kinds of conduct that we experience the activities of virtue as pleasurable and the activities of vice as painful (1113a22–b2). This applies to justice as much as to courage or moderation.

Significantly, Aristotle offers as evidence for this thesis concerning virtue the activities of lawgivers. By habituating citizens, lawgivers intend to make them good (Eth. Nic. 1113b3–6). It is difficult for youth to be well-trained in virtue without correct laws (1179b31–2). Rational argument alone is inadequate for those raised in bad habits, and the soul of the listener must be cultivated to enjoy virtue. Passion is also more likely to yield to force than to reason (1179b23–9). As a consequence, the compelling force of law is necessary to ensure that people are raised correctly and habituated in conformity with virtue.Footnote ⁴⁶ The deeds of virtue realize a capacity present in us by nature, but the actualization of this capacity requires the establishment by practical reason of norms which promote just and equitable types of conduct.Footnote ⁴⁷ The architectonic activity of the legislator is necessary because virtue is not simply naturally emerging. Yet, the agency of a lawgiver is also far from arbitrary. When a legislator is performing their function well, they enact laws which promote the actualization of human potentialities and our natural impulse towards virtue and flourishing.

When Aristotle says that the founder of the political community is the cause (αἴτιος) of the greatest of goods, this therefore means not merely that the architectonic activity of the founding legislator is a necessary condition for the formation of the polis. It also means that law-making actualizes and fulfils an already existing natural human potentiality. The polis is not simply an external product of the legislative craft, but rather naturally develops from more basic associations through the practical agency of a legislative founder.

This reconciliation of legislative agency and political naturalism can be elaborated by reference to the most significant difference between the natural ‘activities’ of animals and the activity of the lawmaker in framing laws for a polis. The construction of a nest or web does not involve craft, investigation or deliberation (Ph. 199a21). It rather occurs owing to a non-rational natural impulse. The formation of political communities through architectonic legislation, by contrast, is carried out on the basis of practical deliberation, and even draws, as demonstrated in section II, on universals and practical truths. Conversely, the activity of legislating, as an exercise of φρόνησις, differs from the pure production (ποίησις) involved in the construction of a bed. It is by considering more closely this latter distinction that one can best see how an extended conception of nature, including actions derived from natural impulses, is consistent with Aristotle's account of the polis as codependent upon legislative agency.

Aristotle's claim that humans are political by nature (Pol. 1253a2–3) is the proposition that helps to bring the multiple strands together. The fact that humans are political by nature does not mean that they live, or desire to live, in political communities solely as a function of natural impulses independently of reason and deliberation. It rather means that humans have natural impulses which guide them towards the application of a capacity for practical judgement to the development of political associations.Footnote ⁴⁸ The sense in which humans are more truly political animals than other gregarious animals such as bees points to the active role of reason in the development of political communities and law. Humans are distinct, because they have a natural capacity for rational speech (λόγος). This capacity enables humans to express opinions on the expedient and inexpedient and the just and the unjust, in contrast to other animals, which can only express pleasure or pain (1253a8–14). It is through the development of this natural capacity for rational speech through practical deliberation, choice and action that humans possess a sense of the just and the unjust, the good and the bad, which culminates in the distinctly political association and law.Footnote ⁴⁹

For Aristotle the human end is rational activity of the soul in conformity with virtue (Eth. Nic. 1097b22–1098a4). An architectonic legislator, in founding the constitution of a polis and in enacting its fundamental laws, is thus engaged in practically rational activity which is a fulfilment of distinctly human nature. The end of the legislator's activity, moreover, is the human good as such. It is this which explains why the origin of the political community can more genuinely be regarded as arising from nature than the formation of other groups such as an athletic team or a musical chorus.Footnote ⁵⁰

The status of humans as naturally political animals allows for a distinction between the work of, for example, a spider in constructing a web and the activity of a lawmaker in designing a fundamental set of laws for a polis. It is the human capacity for deliberation and rational investigation which distinguishes the products of the legislative craft from the products arising out of animal impulse. The status of humans as naturally political animals also points, moreover, to differences internal to the human domain between founding a political community and the production of a bed. In the case of a bed, considered as the product of the craft of bed-making, the end is something external and independent of the craftsman (Eth. Nic. 1140a1–23). In the case of the polis, at least on the assumption that it is part of our nature to live in such associations, the legislator is engaged in the practically rational activity of establishing a constitution for the purpose of actualizing the human potentiality for virtue and flourishing. Foundational law-making, by contrast with production, has an end contained within the activity that is chosen through that very activity.

Aristotle's reference to the founding legislator (δημιουργός) as a craftsman must accordingly be regarded as an analogy properly speaking in the sense that the activity of law-making has a productive aspect, but is ultimately practical in its ends.Footnote ⁵¹ Legislative activity is a function of natural impulses (analogous to the activity of the swallow or the spider in constructing a nest or a web respectively) and yet differs from the non-deliberative production of animals in so far as it exercises a distinctly human capacity and attempts to promote its further realization in the political domain. While the architectonic activity of founding a constitution and its laws is analogous to the production of a craftsman, it also fulfils the distinctly human natural capacity for rational speech and reflection on the good and the bad, the just and the unjust. The founding legislator, by engaging in the activity of designing political structures and laws, hence exercises those very capacities for rational speech and practical deliberation that they attempt to promote. In this sense, there is a reflexive aspect to law-making, whereby the exercise of practical reason through constitutional formation aims at the same end—εὐδαιμονία—that the activity actualizes.

An Aristotelian founding legislator, therefore, engages in a form of practical activity that is a realization of distinctly human nature and in so doing chooses an end—flourishing—that is the telos of our specific natural capacities. Now one might object that this is a highly idealized conception of constitutional law-making. This would, of course, be true, but it is completely consistent with the tendency to view foundational lawmakers as exemplars of practical wisdom and experience discussed in section Ι. The Aristotelian legislator in the focal sense is no mere enactor of laws but rather a practically reasonable agent with insight into the human good.

Aristotle's account of the founding legislator and of nature as joint causes of the polis accordingly rests not only on an extended account of nature, whereby our natural rational faculties allow us to fulfil an innate impulse towards the formation of political communities conducive to the development of intellectual and ethical virtues, but also upon a reflexive conception of practical rationality as a faculty whereby ‘doing’ and the choice for the ultimate human end are the same.

The interpretation offered here is consistent with Aristotle's rejection of the stark φύσις–νόμος dichotomy associated with the sophistic movement.Footnote ⁵² Eth. Nic. 10.9 seeks to expose the speciousness of the sophistic claim to be able to teach political expertise (πολιτική) and the art of legislation (1181a1–b13). It is thus significant that the first mention of the term νόμος in the Nicomachean Ethics alludes to the sophistic teaching on law, according to which the noble things and the just things (τὰ δὲ καλὰ καὶ τὰ δίκαια) admit of dispute and variability such that they are held to exist by law alone and not by nature (1094b14–17). Aristotle's political naturalism is in part a response to the distortions which arise from such an overly sharp opposition between what is by nature and what is by convention. Undoubtedly a polis is held together by justice (Eth. Eud. 1241b14–15) and citizens become just, not by nature solely but by habituation guided by practical reason and law (Eth. Nic. 1103a13–16). On the other hand, practical reason seeks to promote the conditions for distinctly human rational activity directed to the good. While the investigation of practical matters is less precise than other forms of enquiry (1094b13–14), moreover, there are regularities in the political domain accessible to a practically reasonable person. Aristotelian political science thereby acknowledges the natural tendency to establish political communities, while recognizing the intentional activity and habituation necessary for the full realization of the potential for political life incipient in more basic forms of association.

It is therefore unsurprising that Aristotle's introduction of the three tenets of his political naturalism is accompanied by several appeals to the necessary role of law in restraining human desires and introducing order to human affairs. In his discussion of the association of the polis out of more basic forms of association—the family and the village—Aristotle thus cites the Homeric passage regarding the Cyclopes according to which each acts as a law to his children and wives, and pays no attention to the others.Footnote ⁵³ This scattered existence is contrasted with the state of development according to which the formation of political communities, under the guidance of law, allows for the fulfilment of natural human capacities. The order which law introduces to political communities ultimately derives from a natural tendency that humans possess, but also reflects the need for intentional activity, particularly that of the lawgiver, in order to ensure the actualization of this potentiality.