Skip to comments.ERIC VOEGELIN: What is Right by Nature?
Posted on 02/16/2002 4:38:09 PM PST by cornelis
WHAT IS RIGHT BY NATURE?
In classical philosophy right by nature was a symbol, with the help of which the philosopher interpreted his noetic [intelligent] experience of right human action. Through dogmatization of philosophy, which began with the Stoa and has not been wholly overcome until today, the symbol of noetic exegesis was gradually separated from its underlying experience and, under the title natural law, turned into a topic of the philosophic schools. This topic, the idea of a body of norms with the claim of eternal and immutable validity, has had considerable effects since the seventeenth century, even though its noetic premises did not become very clear. Today the revived debate about natural law unfortunately still suffers from the topical character of its object, separated as it is from the experience containing its meaning. We shall try to get behind the topos of dogmatic philosophizing and to reconstitute the symbol of noetic exegesis.
To this end we shall examine the occasion on which the expression of right and nature first were related within a larger theoretical context, namely the Aristotelian physei dikaion. This case obviously merits our attention, not only because it is the first of its kind so that we may hope to discover in it the experiential bases of the symbol, but also and especially because the physei dikaion of Aristotle is supposed to valid everywhere and for all time but all the same is a kineton, everywhere changeable. Thus the content of the original concept varies considerable from that of the later topos. . . . It suffices for us here to clarify the meaning of the physei dikaion and to unravel some of its philosophical implications.
definitions In the just-mentioned passage of the Politics, Aristotle formulates three fundamental definitions:
(a) justice( dikaiosyne) is a politikon;preliminary remarks
(b) Right (dikaion) is the order (taxis) of the koinonia politike (the political community);
(c) the judicial decision (dike) is the determination of what is right (dikaion)
We infer from the definitions that Aristotle wanted to put the questions of justice and judicial decision into an essential connection with the polis. Fur justice is a politikon; the dikaion, in turn, relates only to the polis but not to any other kind of association and its order; the judicial decision, whether it is to be understood as a legislative norm of a judges decision, regards what is right within the framework of the community of the polis. Statements containing these concepts must not be generalized into an Aristotelian philosophy of law, nor may one conclude from the relationship to the polis that this or that statement may not be valid for other types of association. The statements must be understood as primarily related to the polis.
This rule of interpretation is confirmed by the curious structure of Book V of the Nicomachean Ethics. Aristotle begins with the distinction of justice in a general and narrower sense; he then subdivides the latter in distributive and corrective justice. After the quite voluminous investigation has come to this point, he suddenly recalls that its object is the relation of what is generally right to what is politically right (politikon dikaion). Everything that was said after the section on justice in general appears as a single digression from which we now return--we must not forget--to the proper subject, the politikon dikaion. Together with this new beginning there are new subdivisions: The politikon dikaion consists of the physikon and the nomikon; the nomikon is eliminated since by definition it is concerned with the adiaphora, the essentially indifferent matters like traffic rules, measures, and weights; finally the investigation concentrates on the physikon dikaion as the right that is concerned with essentials. Within each of the two parts the formation of concepts thus clearly proceeds according to the scheme of general and special; the obscurity enters at the point of the break: there where justice in the general sense suddenly is related to the polis and concept of the dikaion politikon is introduced.
The controlling question:
What then, is right in a political sense? Aristotle defines: The just in political matters is found among men who share a common life in order that their association bring them self-sufficiency and who are free and equal, either proportionally or arithmetically. Hence, in a society where this is not the case, there is nothing just in the political sense in the relations of the various members to one another, but there is only something that bears a resemblance to what is just. Explaining this definition, he continues: For the just exists only among men whose mutual relationship is regulated by law, and law exists where injustice may occur. This is possible only among men who are free and equal, for only among them there is public decision about justice (dike) that distinguishes between what is right (dikaion) and what is unjust (adikon). These sentences do not present an argument but produce a curiously floating circle of meanings in which justice is closely linked with the polis and its relations between free and equal citizens, while the relations between men belonging to other associations drop down into just as curious shadowy condition of unreality.
What is nomos?
The floating meanings receive little more determination from the term nomos, which these sentences introduced. Nomos, the law, is to rule, not man. The ruler is to be no more than the guardian of the dikaion, of that justice that distributively and correctively obtains between men who are free and equal; if the ruler violates the dikaion by acting in his own interest, assigning to himself more than his equal share, he becomes a tyrant. For Aristotle, the rule of nomos thus does not cover any content whatsoever of statues or ordinances; rather one can speak of a rule of law only when the law has a definite an essential content.
Now we are in a position to dissolve the obscurities that were caused by Aristotles dominant interest in the polis.
What are layers of meanings?
Above all, one must pay attention to the several layers of meanings. Primarily the concepts refer to the polis as the manifestation of right order, so on this level it appears as if justice, law, right could be mentioned only with regard to the polis. Since Aristotle, however, is aware that the problems touched by these terms also concern men who live in other associations than the polis, a second level of meaning is opened, in which he touches the corresponding problems beyond the polis. For Aristotle, there is not merely a politikon, but also a despotikon, patrikon, and domestikon dikaion, only it must be distinguished from the more essential justice of the polis as a homoion, a resemblance. Nor does he deny to the to the justice of other associations a physikon, even if it, too, is to be understood only in the modus deficiens as a resemblance, like the dikaion. Moreover, Aristotle has not much to say about these other types of what is right by nature, since they do not interest him in the course of an investigation of the politikon. Essential justice, then, merges with what is right in the historical-concrete polis, while the questions of right order for other types of association appear only sketchily on the edges of the investigation.
The law, natural, human, or divine?
Given the dominance of the politikon, there can be no natural law conceived as an eternal, immutable, universal valid normativity confronting the changeable positive law. This is so because the justice of the polis, its nomos, insofar it constitutes the rule of law among men free and equal, is itself right by nature. The justice of the polis is not positive law in the modern sense but rather essential law within which alone there arises the tension between physei dikaion and a possible derailment into the making of laws by arbitrary human will. Of course, the law of the polis is also legislated and obligatory in this capacity, but this attribute takes second rank behind the question whether the content of the statue is physei or rather the product of human hybris. This Aristotelian conception of nomos does not seem to differ in principle from the older one of Heraclitus or Sophocles. In Heraclitus we find the sentence (b 114) that all human laws (anthropoi nomoi) are nourished by one that is divine (theos nomos), which governs as far as it will and is sufficient for all and more than enough And Sophocles Antigone speaks of the unwritten and irremovable commands (nomima) of the gods, of which nobody has seen how they arise; and she does not want to become guilty before the gods by conforming to ordinances that have sprung from the self-willed thought (phronema) of man (Ant. 450-70). In Aristotle the place of the theios nomos has been taken by the physei dikaion, so nomos, is subject no longer to the divine but to nature. Whether or what has changed through this mutation of the criterion can be ascertained only through a close examination of the concept of nature.
The second reason for lack of clarity is the changing meaning of the term physis. Now, after the first reason has been removed, we can go through the text with a view to the different meanings of physis.
What is physis
Political justice is either physikon or nomikon. While physikon everywhere has the same validity (dynamis) and is independent of what men are thinking, nomikon concerns things that could be ordered one way or another, since from the point of view of essence they obviously are indifferent. After these definitions, Aristotle interrupts his train of thoughts and introduces a wide spread opinion: Many people think that all law is nomikon; for while that which by nature is the same always and everywhereas, for example, fire burns both here and in Persiathe law seems indeed to be subject to changes. Against this view, he argues that the sentence, that law is changeable, does not seem to apply to gods, while among men, even though there is obvsiously something that is right by nature, it is indeed changeable. He adds that it is easy to recognize which dikaia are according to nature and which are not.
The difficulties of this text resolve themselves if one understands that the word physis has the three meanings of physical, divine, and human, without Aristotle indicating which of the three meanings he uses in each case. Furthermore, the hasty language of this passage does not distinguish carefully enough between the arbitrary making of laws characterizing the nomika and the not arbitrary but rather strictly limited legislation concerning physica. Thus misunderstandings easily arise, when Aristotle talks of the physikon dikaion now as that which is valid everywhere (meaning in its divine essence), now as that which is changeable (meaning its realization of men in a concrete situation). When he now even begins to talk of ta me physika all anthropina dikaia (what is just not by nature but by human enactment), one can indeed not make up ones mind whether by physika he means nature in the physical sense or in the divine essence. The only thing that is certain is that the anthropina are not nomika as opposed to physika but rather the physika in the third sense of the human realization of what is by nature.
The physei dikaion, we may say by way of summary, is what is right by nature in its tension between divine immutable essence and human existentially condition mutability.
What is phronesis?
What is right by nature is not given as an object about which one could state correct propositions once and for all. Rather, it has its being in mans concrete experience of a justice which is everywhere the same and yet, in its realization, changeable and everywhere different. There is, thus, an existential tension that cannot be resolved theoretically but only in the practice of the man who experiences it. Mediation between poles is not an easy task. We know solons complaint on the occasion of his reform: It is very hard to recognize the invisible measures of right judgment; and yet this measure alone contains the right limits [peirata] of all things (Solon 4, 17). It is very easy to lose this invisible, divine measure, and then its place will be taken by a legislators arbitrariness pursuing his special interest. In order to deal somewhat adequately with this task, man needs an existential power, a special quality, if his action is to mediate between the poles of tension. This power Aristotle calls phronesis.
The problems of phronesis as the power of mediation run parallel to those of the tension between right and effective order in the polis. In dealing with what is right by nature, Aristotle permitted the politikon to dominate his conceptualization; similarly, when dealing not only with phronesis but with virtue in general, he puts his conceptualization under the idea of adjustment of the existential tension. This overall notion not received much attention, as far as I know, and yet it is this that gives weight to any undertaking of ethics, not only Aristotles. For purposes of characterizing its philosophical locus, it is advisable to speak on an ontology of ethics.
General principles vs. the specific and concrete
Aristotles ontological interest manifests itself when he attributes to concrete action a higher degree of truth than to general principles of ethics. In (NE 1107a28 ff), he follows up a definition of virtue as the mean between extremes with an observation about the value of general concepts in ethics. We must not dwell on the generalities, says Aristotle, but we must look at the hekasta, the concrete facts or cases. In the science of human action, the general principles may have a wider application (or: are more widely accepted; the koinoteroi is not unambiguous), but the specifics are alethinoteroi, i.e., have more truth, for in action we are dealing with concrete things (hekasta) and must adjust to them. While other sciences endeavor to attain general principles with the widest possible area of application, in ethics the generalities are relatively uninteresting (possibly because they are already universally known). It is only on a lower level of abstraction, in the doctrine of particular virtues and in casuistics, that we get to the important things, and to these lower levels Aristotle attributes the greater amount of truth.
The praxeological movement toward truth
Now it does not go without saying that the lower levels deserve the attribute of more truth. Even if concrete action is more important, why should general principles and definitions be less true than decisions in particular cases? In this identification of truth with the concrete, there emerges the almost forgotten knowledge of the philosopher, that ethics is not a matter of moral principles, nor a retreat from the complexities of the world, nor a contraction of existence into eschatological expectation or readiness, but a matter of the truth of existence in the reality of action in concrete situations. What matters is not correct principles about what is right by nature in an immutable generality, nor the acute consciousness of the tension between the immutable truth and its mutable application (possibly even with tragic overtones), but the changeability, the kineton itself, and the methods to lift it to the reality of truth. The truth of existence is attained where it becomes concrete, i.e., in action.
The kineton of action is the locus where man attains his truth. That does not mean that ethics on the higher levels of abstraction would be superfluous for the truth of action, for correct action in concrete situations requires the deliberation of pro and contra in the tension of what is immutably right, and the premise for rational deliberation is ethical knowledge. Precisely in this question, however, Aristotle is willing, on the basis of this experiences to allow for other possibilities, inasmuch as he recognizes right action, which attains truth without the mediation of ethical knowledge. In the Eudemian Ethics, he speaks of tyche, the luck of right action. There would be no end of deliberation, he thinks, if reasons after reasons were to be considered and the deliberating reason (nous) did not have an absolute origin and beginning (arche) of its reasoningthe beginning of God. The reasoning about concrete action is part of a movement in being, which issues from God and ends in human action. Just as God moves (kinei) everything in the universe, the divine also moves all things in us (EE 1248a27). To be sure, the divine in us moves usually through knowledge (episteme), mind (nous), and virtue (arete), but it also can do without these instruments and move us without them, directly through enthousiasmos. Side by side with the capacity for correct action of the wise men there is, therefore, the capacity of the unwise (alogoi) to hit on a correct decision by divination (mantike). Such accuracy of true action without the instrumentary (organon) of knowledge and experience shows its possessor to be a fortune-favored one, a eutyches.
These reflections about the fortune-favored man reveal the connection between ethics and ontology, an ontology that still has a decidedly cosmological character. From the unmoved mover, as the first cause, the movement of being goes on through the cosmos down to the last thing that is moved, in the realm of humanity to human action. If what is right by nature is characterized as kineton, the translation of this term as changeable is correct but must be supplemented by the meaning of being moved cosmically by the cause of all movement. The cosmological overtones should also keep us from understanding the content of particular cases as historical singularities in the modern sense. The constitution of the polis, which Aristotle uses as examples of the changeable right by nature, do indeed belong to the area that today we cal history, but to the Hellenic thinker they appeared as belonging to an ahistorical realm of being. Let us not forget Aristotles comparison with the market situation, to which one or another measure might be adequate. More about this question cannot be said at this time, for we are touching on a theoretical problem of the limits of history, which has hardly even been raised today.
Whatever these limits may be, for Aristotle the historical and ahistorical changeables merge into the one movement issuing from the Divine. The movement may take a short cut from the divine arche in man to his action, or it can use the instrumentalities of reason, knowledge, and habits of virtue. The normal case is not that of the fortune-favored unwise, but rather that of the wise man. The wise man, however, deliberates on the basis of his knowledge; and this knowledge may be ordered and expressed in the lasting form of propositions of various degrees of generality, which are called ethics. Insofar as this constant knowledge is the instrument used by the divine to attain truth in the reality of action, ethics itself is a phase in the movement of being that ends in the kineton, and its creation is a labor of serving the unmoved mover. The philosophical achievement of ethics has its dignity as a part of the divine movement that leads to the truth of action.
Some, not all are wise
The ground for an ontology of ethics is the insight that ethical knowledge and deliberation are part of the movement of being. Between the mover and the moved, however, there is a man who either is, or is not, permeable for the movement of being. By no means all men are either wise or fortunate; rather most of them allow their action to be determined by their lusts (hedone) (NE 113a35). The next step, therefore is the conception of the man in whom knowledge and deliberation occur.
Who is spoudaios?
The degree of permeability for the movement of being determines the rank of human beings, the highest of whom is the spoudaios. The spoudaios is the mature man who desires what is in truth desirable, and who judges everything right. All men desire what is good, but their judgment of what is good in truth is obscured by lust. If we tried to find out what is truly good by taking a poll in any given collectivity of men, we would get as many answers as the characters of those we have asked (1113a32), for each character considers that good what he desires. Hence, we must ask the spoudaios, who differs from other men in that he sees truth in concrete things for he is, as it were, their measure (1113a34)a principle of the method to which our empirical social scientists should pay attention.
The passages concerning the spoudaios shows very clearly that, for Aristotle, what is right by nature cannot become a set of eternal immutable propositions, for the truth of a concrete action cannot be determined by its subsumption under a general principles but only by asking the spoudaios. Appeal is made, therefore, not from the action to an immutably correct principle but to the existentially right order of man. The criterion of rightly ordered human existence, however, is the permeability for the movement of being, i.e., the openness of man for the divine; the openness in its turn is not a proposition about something given but an event, and ethics is, therefore, not a body of propositions but an event of being that provides the word for a statement about itself.
The ontology of ethics is completed by the theory of phronesis, that virtue for Aristotle is the locus at which the movement of being in man becomes reality and simultaneously becomes articulate. Phronesis is the virtue of correct action and, at the same time, the virtue of right speech about action . .
annalex: Good legislation follows natural law. Natural law is all about rights.
cornelis: I can walk with the first one. The last one is a hoot.
annalex From Aquinas, (on his feast day): "Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting." Rightfulness is an attribute of acts.
cornelis If A is B and B is C and C is D and D is E and E is F . . . then Eureka! F is A! But what if B follows A?annalex Cool.
I generally view the promotion and preservation of rights and liberties as a foundation for rightful law. My contention with your argument is that I do not agree that you have demonstrated that 1) a reduction in propaganda value of a message constitutes a disruption of free speech rights, and 2) offensive content in a message constitutes an act of force. That is as I understand your thesis and I would dare say, this is in contrast to common libertarian understanding of rights principles. I am not a libertarian and the justifications you seek are foreign to me. Understand that all governments are founded on the relinquishment of personal individual rights to a certain degree. But the power of governments is conferred by those governed, not by rights.
As Ive explained to you on other threads, proximal and distal effects are treated differently. Libertarians focus only on proximal issues. Its commonly understood that libertarians oppose all government interference in the areas of voluntary relations between individuals. I admire you for understanding that, in real life, voluntary relations in the public square can lead to chaos without government interference. Public policy, rather than produced ex nihilo are produced in the interest of tranquility in the public square and maximum liberty for the individuals who use it. We need look no further to find a rights violation at the proximal level of interaction between two individuals.
The liberty of one depends on the due restraint on the liberty of others. Its a straightforward maximization problem.
All good things come through hard work.
Anyway, I hadn't heard or thought of that name for quite some time. I just pulled out The New Science of Politics and might give it a read. Boy do I remember the spudaioi, dike, doxa, epistime.
That sure brings back memories. I think I learned more Greek in that class than I would have in a Greek language class.
I do not think Aristotle has a concept of Natural Law, one would be hard pressed to find support for that in EN V.7.
I really do love those Greeks.
So the question remains, what is right by nature?
Don't get it...what does he mean by statues and ordinances, and why don't they have a definite, essential content?
I wish you courage. His published essays in the new Collected Works are very readable.
These statements seem contradictory to me...what am I missing?
If you do, this is far from clear in Aristotle. In the Nicomachean Ethics, Aristotle states that "political justice is partly natural, partly legal." (1134b18-19).
What does that mean?
Well it can mean one of three things:
1. Anything politically just is either naturally just or legally just, but never both
2. Everything politically just is at once both naturally just and legally just
3. Some politically just things are naturally just and legally just. Others are naturally just but not legally just, or vice versa.
Which one is it? I would argue the last one. I would also argue that within Aristotle (N. Ethics, Politics, Rhetoric) one can only interpret what is naturally just as "the best constitution."
Am I misunderstanding your question?
I don't know the reference...do you know where it is?