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)
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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 judge’s 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 Aristotle’s 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 everywhere—as, for example, fire burns both here and in Persia—the 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 one’s 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.
In sum:
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.
II. Phronesis 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 man’s 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 solon’s 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 legislator’s 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 Aristotle’s. For purposes of characterizing its philosophical locus, it is advisable to speak on an ontology of ethics.
General principles vs. the specific and concrete
Aristotle’s 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 reasoning—the 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 Aristotle’s 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 . .
That's my point exactly--a large amount of the above kind of crap was required (in my day) to be awarded a bachelor's.
Most of the stuff universities are about is to be sure their graduates will be conditioned to follow the corporate carrot--that is, to do as one is told in the surety that the carrot will then follow.
The pink slip by forty and the retreat of the carrot too often follow first.
Hi cornelis! Well, I do know the difference between divine and natural law. Problem is, I suspect my correspondent, like most people these days, thinks that human consciousness and being are purely world-immanent phenomena. So to speak of what I really wanted to speak of – divine law – would be quite impossible. So I thought I’d try something else. It didn’t work out. My question was ditched. But then, perhaps it was simply unintelligible.
The physei dikaion -- what is right by nature – depends, as Voegelin points out, on a proper understanding of that physis -- nature – is. For Aristotle, the word “has the three meanings of physical, divine, and human…. Aristotle talks of thephysikon dikaion now as that which is valid everywhere (meaning in its divine essence), now as that which is changeable (meaning its realization by men in a concrete situation). When he…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 one’s mind whether by physika he means nature in the physical sense or in the divine essence.” But Voegelin is certain that such human enactments are not nomika (changeable law) as opposed to physika (immutable law based on divine essence), “but rather the physika in the third sense of the human realization of what is by nature.” [boldface added]. That is, the understanding of what is right by nature emerges in the “tension between divine immutable essence and human existentially-conditioned mutability.”
Plato, and Aristotle after him, rejected the idea that man’s consciousness is world-immanent and nothing more than that. Indeed, the psyche of every man is rooted in divine essence, a transcendent principle. Thus man can apprehend “the point of intersection of the timeless with time.” Indeed, man is the demonstration of this intersection. Man lives in the tension between the God beyond this world, and the “god within,” the divine principle that constitutes his own essential being. I take this to mean that man is capable of recognizing the “immutable law based on divine essence” because it is literally in his nature to do so.
Thus, what is right by nature (physikon dikaion) – we might say what is right according to the laws of nature and of nature’s God – and human legislative acts (nomikon) are the “poles” of an existential tension between the timeless and time, of the unchanging and the changeable. Justice – which is eternally right by nature – is universal in the sense that men everywhere and at all times recognize its truth, although the laws men enact to achieve it in concrete societies may differ and be subject to change. The point is, human enactments of law ought to reify as much as possible “the invisible, divine measure.” For if this is not done, then the eternal measure’s “place will be taken by a legislator’s arbitrariness pursuing his special interest,” and truthful existence – personal and social – will be impossible.
This is an extraordinarily difficult complex to convey to people who don’t spend a whole lot of time hashing out philosophical problems; maybe a more prosaic illustration may help. I’m convinced the Framers of the U.S. Constitution had precisely this problem of the just basis of nomikon in mind. I believe they consciously modeled their design after an idea of the divine measure to which human legislative acts must refer and conform in order to have the status of law. They well understood that changing circumstances over time would drive changes in law. At the same time, the “eternal” principles the Constitution was designed to secure and protect – liberty and justice under law – needed to be protected from arbitrary legislation that would undermine or threaten these principles. So, they simply said, in effect, that any legislative act that did not conform to the measure of constitutional principle was a nullity, “no law” at all, and not binding on anyone. (Of course, it doesn’t work out quite this way in actual practice; after all, you can be punished for not complying with a “nullity” these days…but then the Constitution has been traduced by successive generations of “arbitrary legislators” for quite some time by now….)
cornelis, I simply loved this: “…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… The truth of existence [and presumably its untruth, as the case may be] is attained where it becomes concrete, i.e., in action…. The kineton of action is the locus where man attains his truth….
“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 wise man…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…. The criterion of rightly-ordered human existence…is [its] permeability for the movement of being, i.e., the openness of man [to] the divine; the openness in its turn is not a proposition about something given by 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.” (boldface added)
Thank you so much, cornelis, for posting this magnificent essay – and for providing an opportunity to discuss divine law. All my best, bb.
Hey semper-libertas! You ever consider changing your screen name to Protagoras? best, bb.
Students conditioned to endure the most boring nonsensical crap are students conditioned to good corporate citizenship.
(This is allied to scrubbing the parade ground with a toothbrush.)
In our times, the King has a court attorney.
In the case of the present administration, who is the person that would be playing the part of court attorney, who is the person who has issued the white paper on the Rights of Man? Not the Attorney General. Not the Secy of State. Is it the VP?
Diotima, I notice how the author, in making the outline (from the link) has underscored the point you are drawing attention to and one which Voegelin himself makes: "What is right by nature is identical with the best constitution, and its investigation is the search for the right order of society."
I think the key issue that Voegelin astutely points out is that "What is right by nature (or, the best constitution) is not given as an object about which one could state correct propositions once and for all."
People who take the U.S. Constitution as the be-all and end-all of law forget that it is rather a procedural document intended to be subject to what is naturally changeable. It is a constitution, as bb notes, that allows for this tension which Voegelin recognizes in Aristotle. It is not a living document, but it is subject to a living people. A constitution that allows for this tension is liable to derailment into the poles which constitute that tension.
You summarize it well. And yet again, it is not so much ambiguity as freedom which defines the tension between being human in a real world.
Question: How do you reasonably expect to be "always free" if you do not understand what is the Source of your freedom? The best the Sophists could do was to rationalize, not liberty, but license. -- bb.
Your citations made me pull out the a published essay, "The Origins of Totalitarianism" wherein he reviews Hannah Arendt's book.
Here's an excerpt for good measure:
The true dividing line in the contemporary crisis does not run between liberals and totalitarians, but between the religious and philosophical transcendentalists on the one side and the liberal and totalitarian immanentist sectarians on the other side. It is sad, but it must be reported that the author herself draws this line. The argument starts from her confusion about the "nature of man": "Only the criminal attempt to change the nature of man is adequate to our trembling insight that no nature, not even the nature of man, can any longer be considered to be the measure of all things" --a sentence that, if it has any sense at all, can only mean that the nature of man ceases to be the measure, when some imbecile conceives the notion of changing it. The author seems to be impressed by the imbecile and isready to forget about the nature of man, as well as about all human civilization that has been built on its understanding. The "mob," she concedes, has correclty seen "that the whole of nearly three thousand years of Western civilization . . . has broken down." Out go the philosophers of Greece, the prophets of Israel, Christ, not to mention the patres and scholastics; for man has come of age, and that means "that from now on man is the only possible creator of his own laws and the only possible maker of his own history." This coming-of-age has to be accepted; man is the new lawmaker; and on the tablets wiped clean of the past he will inscribe the "new discoveries in morality," which Edmund Burke had still considered impossible.Voegelin feels shy about chastizing Arendt, but the point must be made.
-- So to speak of what I really wanted to speak of – divine law – would be quite impossible. So I thought I'd try something else. It didn't work out. My question was ditched. But then, perhaps it was simply unintelligible.
I hope that you don't think your question on that thread was 'ditched' by me, betty. --- It was sidetracked by a pirate, that I can agree. - But so was my answer.
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