COLLOQUIUM 2

THE CONCEPT OF LAW IN ARISTOTLE'S POLITICS

in Proceedings of the Boston Area Colloquium in Ancient Philosophy
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COLLOQUIUM 2

THE CONCEPT OF LAW IN ARISTOTLE'S POLITICS

in Proceedings of the Boston Area Colloquium in Ancient Philosophy

References

1 Cf. e. g., Chemiss (1935), who made perhaps the most brilliant criticism of Jaeger's book. On the Politics he stressed the basic truth against Jaeger: ".when the whole body of writings consists of lectures that were repeatedly delivered and bound together by backward and forward references which may have been added at various times, it is apparent that the author looked upon the whole corpus as forming a self- consistent, unified system, and philosophically his work must be judged as such, if it was such that he intended it to be" (270). See also J. L. Stocks (1927); E. Barker (1931, 37f.). Cf. J. Touloumakos (1993, 240). 2 In fact it was U. von Wilamowitz-Moellendorff (1893, I, 356ff.) who was the first to propose the existence of different layers in the Politics and so laid the basis for a biographical interpretation of Aristotle's work, as W. Jaeger (19673, 279 n. 3) indicates. Jaeger's theory is actually an application to Aristotle of the Wilamowitzian Romantic approach, that tries to discover in the work of every ancient author the traces of his personality. Cf. 272, where Jaeger calls this method naturgemd,B.

3 J. Touloumakos's (1990, 1993) report of the state of the question in the case of the Politics shows how many reasons have been given against Jaeger's biographical explanations since 1923 and yet how broad his influence remains in spite of this fact. 4 What follows represents a summary of the conclusions I have reached in a longer study on this subject (Lisi 1985).

5 K. von Fritz (1938) has, in a now classical book, pointed out this tendency of Plato in the use of traditional concepts.

6 For a complete treatment of this problem, cf. F. L. Lisi (1985, 25-65).

7 In F. L. Lisi (1985, 75-89) I have given a more comprehensive consideration to this question.

8 The achievement of happiness is possible only in freedom. For Aristotle freedom is an ontological state of the soul that does not correspond to the modern notion of it, i.e. the ability of doing what I want. To project onto the Aristotelian work the modem concept of freedom as J. Barnes 1990 does helps very little to understand the Aristotelian theory of state. 9 This passage is important not only because it underlines the difference between the Socratic-Platonic-Aristotelian approach and the sophistic one, but also because it shows that the nomos is not an arbitrary convention in the sophistic sense. 10 R. Robinson (1962, 41) and C. Lord (1984, 103) translate "common advantage."

11 Contrary to S. Vergnières (1995, 186-197) interpretation, the only law that procures virtue of the citizens in the full sense is the law of the best state.

12 Like Plato Aristotle considers that property must be regulated by law (cf. J. Barnes, 1990, 252). 13 Cf. the quite literal agreement with the Platonic dialogue: PI. Laws 1, 631b6- cl and Arist. Pol. VII 1, 1323b18-21.

14 Plato too stressed in the Laws the necessity of limiting of the number of citizens and above all, that a good political order requires a high degree of familiarity among the citizens (V, 738d-e).

15 The possibility of the existence of such a man, a god among mortal beings, is s also considered by Plato in the Laws and is denied at least for this time (IX, 874e- 875d).

16 Some passages seem to indicate that Aristotle had a certain preference for the constitutional monarchy as the best political system (e. g. Pol. N 2, 1289a39- 1289b2) , 17 Cf. for instance the criticism against those who recognize only one sort of democracy and one sort of oligarchy (IV 1, 1289a8-10).

18 I have elsewhere tried to clarify the existing relationship between the Republic and the Laws and to show that they are complementary and both necessary in Plato's political philosophy (cf. Lisi 1985, 197-256; 1998 [=1999]).

19 The following reference to the Republic (1328a38-41) shows that this vinculum with the Platonic doctrine is very clear for Aristotle.

20 It has been much discussed if Aristotle is here referring to his own theory or to other thinkers (cf. Robinson 1962, 6lff.). But since there is a general agreement between the doctrines of the critics of monarchy and Aristotle's position as it is expressed in other parts of the Politics (cf. e. g. ill 15, 1286a7-20; cf. IV 4, 1292a32-34), I assume they are his own.

21 This has often led to misinterpretations of Aristotle's view, which lie at the basis of analytical interpretations of the Politics (paradigmatic, e.g., Rosemberg 1933, 351 who speaks of Aristotle's "durchaus relative Auffassung" of justice and law.

22 Cf. EN III 12, 1119b13-18: WCT1T£p 8e Tov 1Taîoa 8«i koto TO 1TCTTayp.a. ro"v ■naibaywyov Ç17v. ovrco (cdi TO È1TIOvP.r¡TlKOV Kara Tov koyov. 6to 8ei tov vuxppovos to t�t9t)JH�Tt«Of o'up.�coveiv rat \dyco- o~Konbs yap ijjupotv TO kko.1 <Wt0UjHt! 6 CTOOCPPCAlV 6JV 8ei Kat coy Set Kat ore OTCAI 8« T4TTEL Kal o koyos.

z3 Here I join J. Burnet (1900, 232) in the reading of Marcianus Graecus 213. If we accept \6yos with most of the editors and understand "the general principle" embodied in the law, this does not invalidate the present interpretation. M. Hamburger (1951, 58f) relates this passage to Pol. 1287a28-32. 24 According to M. Hamburger (1951, 59) this passage shows one of the most characteristic features of Aristotle's "constitutionalism." 25Law is, for Aristotle, always a product of art and as such it has its principle in the lawgiver and is neither a 'natural' nor an unchangeable being. Cf. EN VI 4, 1140a10-16. The statement of the Magna Moralia that legal justice is a product of human convention, not a natural arrangement (ro sue 7ToÀmKóv ED'TLV TO vojuo, ov TO <�<�€t; I 33, 21) can perhaps be understood in the sense that the political order is the product of art and human determination and not a natural disposition, then every human action is political and as such belongs to a field different from nature. Here it is impossible to consider in detail this blurred passage of the Magna Moralia, but I believe that the conventional character of the natural law is beyond all doubt. M. Hamburger (1951, 61) errs in his explanation of this passage, because both natural and political law are conventional as the sample of the left hand shows. Cf. 21: uxravTws i7rt row cf>VU£1 5ikcuW, �. eat p.f:Ta!3åÀÀ£1 ðlà T1]V 7¡p.f:TÉpav �f]UIV, 81a TOOT' O�K «jrti> 8LKatov <�o-€t; a\\' (07IV. Tb yap tog (7Tt Tb 7rlX� ðla¡uvov, TOOTO cbvuu 3t'Katov 7TpocbavÉ<;. 8 yap av 7¡p.f:Î<; 0wjuc0a Kai f0�tUTI 8t'Katov is?7 Kai KaAoCjucf Kara vopov ðíKalOV. !3ÉÀTlOV ovv ðíKalOV T6 KaTit (A�0-tV roC KaTa

v6p.ov. According to this passage the difference between legal and natural justice is only the permanence of the latter, and the more the legislation takes into account the nature of the people the longer it will remain without being changed and be natural. This interpretation also helps, I believe, to understand the passage of Topics VI 2, 140a6-7, where he seems to be criticizing absolute legal positivism and extreme jus naturalism, since it only denies that it can be stated that the nomos is }J.(TpoV 71 eiKwv tuv tbvo-ti B�Kaiwv. In Rhet. I 13, 1373b4-13 Aristotle is not exposing his own doctrine about law, but giving instructions on how to use different means in defense of one's interest in a judicial case, as chapter 15 of the same book makes clear (cf. esp. 1375a25-27 and S. Vergni6res 1995, 199-210).

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