Cite as:
Eric Allen Engle, Aristotle, Law, and Justice: The Tragic Hero, 35 N. Ky.
L. Rev. 1 (2008).
Change
Font Face | Change Font Size | Change
Background Color color | Change
Text Color color | Change
Link Color | Change
Visited Link Color |
Abstract: Aristotle was the greatest scientist in western
history. He established the scientific paradigm and the instruments
thereof (materialism and logic). His work covered all the basic
sciences: Astronomy, Botany, Logic, Mathematics, Meteorology,
Philosophy, Psychology, Political Science, Rhetoric, and Zoology.
Aristotle's conception of justice pervades the law and heavily
influences the Anglo-Saxon court system to this very day. Yet, the mark
of a hero in Greek tragedy is his tragic flaw-the failing that makes
the hero all too human. Aristotle was racist, sexist and homophobic. He
believed that slavery was natural and good. He also thought that a
woman's place was in the home. Due to Aristotle's influence, his tragic
flaw has distorted western thought ever since its conception. In order
to cure this disease we must understand its cause. This essay describes
Aristotle's theory of justice and law in order to show how pervasively
he has influenced the common law. Once his impact is understood it will
be possible to overcome his biases that still mark the world. We can
and should reject the dark shadow of this great scientist whilst
enjoying the greater and better part of his work.
I. INTRODUCTION: TWO PROPOSTIONS
1. Aristotle was racist,
1 sexist,
2
and homophobic and believed slavery was natural, inevitable and good.
3
2. Aristotle was the greatest scientist in human
history.
Both propositions are true.
For good and ill, Aristotle's thought permeates
western thinking. This pervasive influence is both evident and hidden.
While Aristotle was simply wrong on race, sex, and gender, he was right
about most everything else he
*2 wrote. Aristotle
basically invented logic, a theory of rhetoric and wrote the first
extant works on political science,
4 psychology, botany, astronomy
and meteorology. He was the first to systematically study the natural
world scientifically and in detail, or at least the first whose works
are (mostly) extant. Though others preceded Aristotle in individual
fields, most of the pre-Socratic works are sadly fragmentary.
5
Plato limited himself to drama and philosophy. His thought is not
systematic. Surely, Aristotle built on earlier thinkers but sadly,
excepting Plato, we only know of them indirectly and fragmentarily.
Due to his influence, the
study of Aristotle remains relevant. How could one man be so wrong and
so right at the same time? And how exactly does Aristotle influence the
common law?
II. ARISTOTLE'S CONTRIBUTIONS TO LEGAL SCIENCE
A. Logic and Dialectical Reasoning
Aristotle was a materialist and thus his work was
really the first empirical testable science. I regard Aristotle as a
monist. Certainly, dualities appear in Aristotle's thought but his
materialism constrains such apparent dualism into some greater unified
whole-apparent dualisms can be contained within monist thought because
the apparent duality is part of a higher unity. To be exact, that
happens through dialectical synthesis of competing oppositions. And
Aristotle, like Heraclitus, was a dialectician.
6
Aristotle is clearly a materialist, and that commits all dualities
eventually to some greater unified whole-materialism implies monism.
Aristotle invented philosophical logic, the
systematic study of right and wrong reasoning. Cicero believed law was
logic in action.
7
If law is logic in action then Aristotle dominates the law just on that
basis. Of course, there is the alternative voluntarist thesis that law
is nothing but an armed command, the “bad man” theory where the law
relies upon “material consequences” of actions.
8
But
*3 in that case
criminals would also be law givers. Voluntarism leads straight to the
law of the jungle with no exit. Yet, as Aristotle noted, it is
precisely the fact that humans live in States that marks human society
and separates it from other social and specialized animals such as bees
9
or wolves. Other animals are social. But human society is the most
complex. Poetically, Aristotle notes that he who lives outside the
state is either a brute beast or a god.
10 Because humans are rational,
political (social) animals with the gift of speech
11
we live in cities and not as savages.
12 Thus our laws are higher than
those of a dagger wielding thief. This is why Aristotle's thinking is
powerful: he reaches the correct result on most questions of social
science with one exception, the supposedly genetic nature of inequality.
Logic wasn't the only thing Aristotle invented or
discovered. He also invented botany, zoology, grammar and advanced
existing knowledge in astronomy. His taxonomies, the first ever really,
are still the basis of much good science. His philosophical logic,
extended by the scholastics, is still the linguistic representation of
what is now also modeled using the mathematical logic pioneered by
Boole. Boole took Aristotle as his starting point-recasting
propositions of natural language into mathematical form. Boole's
calculus at once clarifies certain issues and makes certain problems
explicit. However, Boole also obscures others, most notably, the
paradox of material implication. This paradox was clear in
philosophical logic but is obscured by mathematical logic. Boole's
ideas, building on Aristotle, are the basis of computer science
including logic theorem proving computer programs such as prolog.
Aristotle influences legal science first and most broadly through the
idea of logic and then by his influence on Cicero. Cicero correctly
recognized that law is living logic. We can also trace the idea of
separation of powers to Aristotle.
13 Equity courts too find their
roots in Aristotle.
14 In Aristotle's schema of
justice the idea of equity (aequitas) plays a role as a “backstop” to
ensure that the deliberative legal reasoning, the formal content of
words, remains within the bounds of fairness.
*4 Universal social
truths are very rare. Social sciences are dominated by probabilistic
and not by deductive reasoning. The understanding that there is both
deductive reasoning which is true at all times and concurrently there
is a probabilistic practical reasoning that is at most times is an
explicit feature of Aristotelian thought. Both deductive and
probabilistic reasoning are used by courts to this day. Aristotle
clearly distinguishes between practical reasoning (phronesis), which
includes probabilistic reasoning, and deductive reasoning. And this
clarity influences the law where we see that probabilistic and
deductive reasoning are used to compliment each other in pursuit of the
just result.
B. Tort Law: Causality is Rooted in Aristotle's Thought
Aristotle influences tort law heavily in the idea of
varieties of causation. In tort law we see the idea of cause in fact
and proximate cause. Aristotle discusses material, formal, efficient
and final causality. Each of these concepts has a corresponding
influence in the law.
15 Final cause is teleology. The
idea of teleological cause influences the law through of the use of
teleological interpretation.
16 Material and formal cause are
cause in fact. And proximate cause is efficient causality.
17
Teleological reasoning, the idea of final objectives
of the law, is also a hallmark of Aristotelian thought. Teleology runs
throughout the law. Laws always serve some purpose, and it is normal to
argue that the law should be interpreted consistent with its purpose.
While Aristotle's ideas on causality, equity and
logic heavily influence the law, Aristotle's greatest influence in the
law is likely from his theory of justice which we now examine.
III. ARISTOTLE AND JUSTICE
Aristotle provides a particularly well developed
definition of justice, one that goes well beyond Plato's rudimentary
efforts. For Plato, justice essentially boils down to each person in
society holding their appropriate position. In other words, platonic
justice is all about being in one's caste.
18 So when I criticize Aristotle
for being sexist, racist and homophobic, it is with the contextual
awareness that he was much less caste-oriented than Plato.
Paradoxically
*5 however Aristotle
was homophobic, whereas Plato was not. This shows that progress is not
linear but cyclical, that human society takes two steps forward but one
step back. Today we know that Plato was right about homosexual persons
and that we ought to be tolerant of homosexuals, and that Aristotle was
wrong in his idea of the “natural” slave. Yet, Aristotle was
progressive relative to Plato because Aristotle was a materialist and a
monist. But above all Aristotle was progressive because Aristotle did
not believe people should be rigidly trapped within their castes as did
Plato.
Aristotle divides the world into exact (natural) and
inexact (human) sciences. Per
(*) are imprecise.
19
Thus its elements at times belong to tekhne
20 (art, including the art of
politics) where opinion reigns rather than in episteme (science,
including political science)
21 where one finds certainty.
Insofar as the political is thus a subject of dialectical reasoning
22,
I would like to criticize the ideas of Aristotle in order to improve
our practice
23
through the exchange, comparison and synthesis of ideas in relative
opposition. That is dialectics.
A. Political Justice-A Relation
Aristotle distinguishes between acts which are either
just or injust, people who are just or injust, and justice and
injustice generally.
24 But all these ideas are
contextualized by the idea of a relationship between the citizens of
the Polis (state) which is called political justice. The relation
between citizens (their political role in The City) is not only
ontologically central, it is also teleologically key,
25
being the highest expression of human development and the finality of
the Polis.
26
For Aristotle, justice can only exist among equals
27-that
*6 is, among adult
freemen.
28
Aristotle divides the political justice (the relation of citizens among
each other) into natural justice and legal justice,
29
the former being universal geographically, the other being unique to
each Polis. To determine this relation, one must describe the Polis,
and analyse
30
the Polis from its parts toward the whole.
31
1. Elements and Origins of the Polis
a) The Family
The family is the material cause of the Polis in the
thought of Aristotle. The family is the “atom” of the Polis. The Polis
grows from the individual to the family, from the family to the
village, and from the village to the Polis.
32 The character of the Polis as
the inevitable means to live and the necessary means to live well
33
indicates that it is prior to the individuals who constitute it.
34
b) The Individual & Dependence
Aristotle holds that the individual is not sufficient
unto himself.
35
The conclusion from this fact of interdependence with respect to
reproduction,
36
economy,
37
and society
38
is the inevitability of the Polis and of the political.
39
2. Inequality
Men also are, according to Aristotle, naturally
40
and biologically
41 unequal. This “natural”
inequality creates a hierarchy according to abilities: male freemen,
female freemen, male children of freemen, female children of freemen
and slaves.
42
Aristotle justifies this hierarchy as being for the benefit of all.
43
*7 a) The Condition
of Slaves
The fact that Aristotle is inegalitarian is seen most
clearly in his analysis of slavery. The inequality which creates and
justifies slavery is, for Aristotle, natural
44 and biological.
45
For all that, he hesitates to postulate a strict relationship between
legal status and quality of the soul.
46 Nevertheless, he concludes
that the slave is a slave for he deserves to be a slave
47
due to a combination of the nature of his body and his soul.
48
In short, the slave is dehumanized and equated to an animal.
49
For Aristotle the existence of a class of slaves seems to be seen as an
economic necessity.
50
b) The Condition of Women
The fact that Aristotle is inegalitarian is also
evident from his analysis of relations between men and women. Again,
biological
51
and natural
52
inequality justifies the treatment of women as inferior to men.
53
3. Rationality
Despite inequalities in social relations and material
interdependence, man has a true power-he is gifted with reason.
54
Men seek to understand, to express themselves and to reach the finality
of their development as people. It is this excellence which makes of
man the most perfect of animals.
55
Aristotle's logic regarding the origin of the state
seems to me to be very powerful. The “state of nature,” a state of
existence before the existence of states, is fiction. The
anthropological evidence shows that “pre-political” societies are
structured around extended families. It is also true that no man is
self sufficient. Thus for Aristotle the state is “natural” in the sense
that the state is the inevitable consequence of the human condition.
But to call the state “natural” does not mean that there is a state of
nature-a human condition outside of familial or state structures
including pre-state structures. Likewise, to prove the necessary
character of social organization does not prove that this society must
necessarily be patriarchal or inegalitarian. Anthropologists have
discovered that matriarchal societies also existed. Although Aristotle
is right as to the origin and inevitability of the Polis, I disagree
with his idea that the state must also inevitably be inegalitarian and
patriarchal.
56
5. The Ends of the Polis
a) The Good
In the thought of Aristotle, objects are defined as
moving (kinesis) towards their own ends (telos). This finality is the
nature of the object.
57 The ends of the State
58
are “the good.”
59
b) Autarchy
For Aristotle, the whole is more perfect than its
parts.
60
Aristotle is a wholist. Although the parts of the Polis-individuals
61
and families
62-are
not autarchic regarding their development, the state seen as a whole is
complete and self sufficient.
63 Thus this autarchy, being
perfect, is a part of the good toward which political life in the state
directs us.
B. Typology of Justice According to Aristotle
Aristotle begins his fifth book of Ethics with a
definition of justice. He affirms that justice is a polysemic term
64
and thus he chooses to begin with a
*9 definition of the
converse.
65
If one recognizes the injust, perhaps one can understand the just by
seeing it as the opposite of the injust. The injust man is an outlaw,
66
unfair and greedy
67 and in the end suffering from
a type of ignorance.
68 Thus the just is the exact
opposite of these traits
69-the lawful.
70
Aristotle implies that the just and the injust are opposites and
mutually exclusive.
71
We have already explained the nature of political
justice as being the means and ends of the whole and that political
justice is divided into natural justice and positive law. Positive
justice is itself further divided again in two parts: universal and
particular justice.
1. The Just Man, Justice, and Just Acts
a) The Just Man
Aristotle distinguishes between just acts, just men,
and justice.
72
According to Aristotle the just man obeys the laws. This kind of
justice, lawfulness, appears to be seen by Aristotle as a necessary but
insufficient condition for the other types of justice.
b) Universal Justice (The Lawful)
Universal justice is that which encompasses just
acts.
73
It is in the same type of relation with just acts as the whole is to
its parts.
c) Just Acts: Justice in the Particular (Fairness)
The type of justice which concerns the character of
acts (rather than of men) is called justice in the particulars
(particular justice). Particular justice is divided once again into two
sub-parts: distributive justice and corrective justice.
2. Distributive Justice (“Geometric” Justice)
Distributive justice is concerned with the
transactions between the Polis and individuals. In modern terms it is
called “public law.” The question answered by distributive justice is
which standards shall be used
74 to determine the
*10 distribution
75
as a geometrical
76 and proportional relation
77
(ratio) of public goods.
78
3. Corrective Justice (Arithmetic Justice)
Corrective Justice is concerned with the transactions
of private individuals with each other. In modern civilianist terms it
is “private law.”
79 Corrective justice is
determinant of just relations after the initial constitutive
distribution of public goods.
80 Private corrective
transactions are again divided into two sub-parts: voluntary
transactions (i.e., contract law) and involuntary transactions (torts
and crimes). Involuntary transactions in turn are either hidden or
violent (and possibly both). Corrective justice is analogical to an
arithmetic relation.
81 Corrective justice assures
maintenance of the status quo ante despite whatever material
transformation.
82
Again, one sees the idea of particular justice as an intermediate
virtue between values which are either too large or too small
83
and as addressing certain acts rather than certain men.
84
Particular justice is very important to the state for it guaranties
business and social stability,
85 despite economic inequality.
86
C. Critique of the Aristotelian Theory of Justice
1. What Are the Sources of Inequality?
One has seen that, according to Aristotle, the
inequalities of virtues are the result of natural and biological
differences including racial differences.
87 Nevertheless, his determinism
is not absolute (as would be the case in an oligarchy) and does not
exclude the possibility of other influences causing inequalities of
abilities and rewards.
88 Inequality is also the result
of education (or lack thereof)
89 and of morale choices.
90
*11 I do not contest
that different persons have different capacities. But I am much less of
a biological determinist than Aristotle and much more of an egalitarian
as to the results which should follow from unequal abilities.
Essentially Aristotle and I disagree on the measure of distributive
justice. Aristotle favors excellence as the measure for distributive
justice whereas I tend more toward equality as the best measure for
distributive justice. This is because Aristotle asserted inequalities
are essentially the result of genetic inheritance and moral choice.
Whereas, I think they are the result of pecuniary inheritance and moral
choice.
2. What Are the Consequences of Inequality?
a) Limitation of the Development of Individuals
The first injustice which results from Aristotle's
presumption of natural (genetic) inequality is that it limits the
teleological development of citizens of the Polis. The slave born a
slave can never become more than a slave. This limitation expresses
itself in patriarchy and the caste system. This caste system links the
just and the good not in the sense of correspondence, but in the sense
of causality.
b) Limitation of the Development of the Polis
The second injustice, which results from the
supposedly natural inequality postulated by Aristotle, is the limited
development of the city itself. If one takes the contrary postulate,
that inequality is not genetic, then one reaches a different
conclusion. The abilities of persons born to wealth are no longer
genetic, but rather due to luck of birth. Then the self-justifying
character of the system of inequality becomes evident as viciously
circular. Material inequality creates unequal capacities which justify
the material inequality. The logical consequence is dynastic rule and
plutocracy. The problem is that such a system limits the development of
the city and stunts healthy internal criticism-channeling reform into
rebellion. This leads to stagnation, as observed in the Mandarin system
of feudal China or in the Satraps of India. Alternatively, dynastic
rule leads to social collapse as was witnessed in the Roman empire.
“Natural” slaves have no interest to defend the system which enslaves
them.
c) Economic Inequality
When Aristotle speaks of the determinant choice of a
measure for distributive justice, he proposes excellence, birth, and
citizenship. Material inequalities are the result of social inequality.
These inequalities are fair according to Aristotle because such
inequalities are a matter of differing capacities and virtues of
different individuals.
*12 To justify this
proportional inequality Aristotle must make the presumption that
different types of labor have a different value according to the
quality of the laborer. For example, an hour of the labor of a
physician would have more worth than that of a farmer.
91
For Aristotle these inequalities are of a natural character either due
to merit or birth.
However this inequality is contestable. If the end of
the city is survival and the maintenance of the good life for its
citizens then the city guaranties the survival of its citizens. Thus
the just state guaranties a certain minimum and maximum of income in
order to prevent concentrations of power and oligarchy. The economic
value of labor should be a function of the time invested in production.
Thus in principle all labor time ought to be of relatively equal value.
This is especially true when one recalls that manual labor is hard and
dangerous risking the health and life of the worker. Few physicians are
maimed or killed at work whereas some farmers and more than a few
miners are.
D. Global Elements of Justice: Volition and Equity
The two final elements of the Aristotelian conception
of justice are volition equity. I call these global elements because
they are “omnipresent” in the consideration of justice.
1. The Relation between Volition and Culpability: Aristotle's Influence
on the Concept of Culpability in the Common Law
Involuntary acts cannot be evaluated as either just
or injust.
92
Thus one can act in an unfair way without however being an unfair
person.
93
Aristotle thus erects four levels of responsibility:
(1) Negligence without Fault
(in the law also known as mere or ordinary negligence);
(2) Culpable Negligence (in
the law known as gross negligence);
(3) Intent without forethought
(intending the act, but not the consequences); and
(4) Malice aforethought.
94
These
distinctions are found in the law to this day.
There is a problem with this schema: the mind of
another is not truly knowable. We can only observe objective actions.
Aristotle and the law seek to sanction based on mental state. The law
can determine subjective mental states only by looking for objective
evidence of subjective mental states. Thus the law addresses acts as
the objective evidence of subjective mental states.
*13 Aristotle also
influenced the law of diminished responsibility,
95
the idea that the mentally retarded or insane ought not to be held to
the same standard as persons of sound mind.
2. Equity
According to Aristotle, the injust man suffers from
the vice of greed, taking more than his fair share.
96
The just man has the opposite tendency and errs on the side of taking a
bit less than his fair share, especially when in doubt.
97
A similar characteristic is found at the level of the city-equity. The
end of equity is to correct the errors
98 of the positive law which
result from strict legalism.
99 Equity also serves to apply
the will of the legislator in situations which were unforeseeable.
100
The judge in equity places himself in the position of the legislator
asking what the legislator would do had it known the facts in this
case. Equity serves to render the positive law more flexible and is the
final guarantor of substantive justice. Of course the equity courts in
the common law are a direct result of Aristotelian thought.
3. Criticisms of Aristotle
We have examined all the forms of justice described
by Aristotle to obtain the idea that the just is the summation of all
virtues,
101
the intermediate term between opposing vices
102 and the means for obtaining
the virtue of the good. In spite of the fact that this appears
ambiguous and circular, justice being both an ends and the means to an
end, the distinctions between just acts, just persons, just states and
justice explain how the just is the means to the end of justice. My
critique of Aristotle's idea of justice is not regarding his typology
which I find persuasive and which clearly influences the law to this
day. Rather we select different measures for distributive justice
because we have differing positions on those inequalities of ability
that Aristotle regards as natural (i.e., biological and genetic).
Regardless, whether one accepts or rejects
Aristotle's views on natural, biological and genetic inequality, one
sees in political science
103 (law) a master science.
This master science determines the allocation of goods and what other
*14 sciences are
explore and developed and to what degree.
104 But when one accepts
Aristotle's genetic and biological view of natural inequality, the
master science also becomes the science of masters, for political
science determines the relations of members of the master class (master
race) to each other,
105 as well as the relations
between the master class (master race) and the slave class (the
sub-human Untermenschen). Although Aristotle sought to distinguish and
refine the different forms of mastery,
106 such distinction does not
change the essence of the relation of superior (master) and subordinate
(woman/slave). Women, children and slaves are seen as being naturally
(biologically or genetically) unequal to (white) males. Women, children
and slaves, according to Aristotle lack the deliberative capacity to
command which is the excellence of freemen. This hierarchical and
patriarchal vision is dehumanizing and limits the ability of the Polis
and its members to grow and attain their full capacities. Thus this
idea must be extirpated in order for Aristotle's ends to be obtained.
Aristotle's thought is ninety percent correct but fatally flawed by
essentially racist and misogynist presumptions.
There are other criticisms of Aristotle. Aristotle
does not seem to address the pre-Socratic debate as to whether the
fundamental nature of the universe is conflicted (which was Heraclitus'
line) or whether apparent conflicts are part of a greater harmony
(which was Pythagoras' line). The idea of adversarial conflict leading
to truth, one key point of common law reasoning, can be traced in
theory to Heraclitus.
107 Aristotle seems silent on
this point. With greatest reluctance I take Heraclitus' view. I simply
see conflict as pervasive in nature whether between predator and prey
or between competing ideas, persons or nations, though I wish it were
all really harmonious as Pythagoras believes. Indeed the capitalist
economic system is built on the premise that competition-a healthy form
of conflict-leads to the best products and the best prices.
108
And this brings up the question of the marketplace.
This is perhaps where I have the greatest problems with Aristotle.
Aristotle wrote on the science of getting and keeping a fortune
(chremastics). How did Aristotle recommend one acquire wealth?
Surprisingly, not through slave ownership. Though Aristotle was a
slaver and thought slavery was a natural, inevitable and good thing, it
was not the foundation of his advice to those who would get wealth!
Rather, Aristotle recommended monopolistic commodity speculation as the
route to wealth. Aristotle thought the best businessman ought to
determine what good would in the future be in short supply and to
acquire that good for later resale. Aristotle saw monopoly, not
economic competition, as a key to individual wealth. True, one can
argue that monopoly is good because of economies of
*15 scale;
monopolistic production may obtain cheaper good for consumers in the
short run. However, in the long run, when there is no threat of
competition the monopolistic producer has every incentive to raise
prices to obtain the highest profit possible. A deep discussion of the
advantages and problems of monopoly seems absent in Aristotle's
economic thought.
The much greater problem is simply that Aristotle
was racist, sexist and homophobic. He was Helleno-centric and thought
the Greek civilization the highest and best. This may have been true
but the reasons for this excellence were fairly certainly seen by
Aristotle as genetic. Even if Aristotle did not think that racial
superiority was genetic, he was perfectly clear that genetic factors
determine that some people are, by nature, slavish and others are, by
nature, rulers. Some are born to serve and others to rule, according to
Aristotle. Racism is that thought of individual excellence due to birth
cast onto groups. And it's simply untrue. For starters, the ruling
classes have been out-bred by the ruled classes for centuries if not
millennia. Furthermore, close inbreeding among the ruling classes leads
to genetic defects of the brain or blood such as hemophilia. Finally,
Aristotle is forced to recognize that some persons are not natural
slaves but enslaved as a result of war.
109 Again however Aristotle
seems to have no problem with the institution of slavery, whether the
slave is one by nature or by capture.
Gender and sex relations in the thought of Aristotle
are alsoclearly problematic. Aristotle definitely believedwomen are by
nature subordinate to and subjects of men. Unfortunately, Aristotle
does not seem to elucidate his hierarchy with perfect clarity. Such an
elucidation shows it to be untenable or confused. This is likely
Aristotle's hierarchy within the Hellenes:
And this is the same sort of social hierarchization
that plagues social and political discourse in the United States today.
For an example of the sort of confused thinking it leads to, try to
answer the following. Within the hierarchical racist or capitalist
view, who is higher in the social hierarchy, a poor white woman or a
wealthy black man? This sort of question is disgusting and a very real
part of social discourse. When one understands that all people are of
about equal talents and basically have the same hopes, fears, needs and
desires, then the idea of hierarchy itself becomes disgusting.
VI. ARISTOTLE AND FOUCAULT
*16 Aristotle's
continuing relevance can be seen by looking at the influence he had on
Michael Foucault. Though he of course influenced Cicero and Aquinas and
so many others, Foucault is the most recent, best example of
Aristotle's continuing relevance.
Aristotle has had a pervasive influence on the
structure of law, more so even than Cicero. It is for precisely this
reason that we are compelled to the records of his lycaeum. Just as
Foucault's lectures at the College de France were gathered by students
into notebooks, so too were the lectures of the Lycaeum recorded, most
probably by Aristotle's son, Nicaeus forming the corpus of his works
that we enjoy to this day. The parallels between Aristotle and Foucault
show that the former clearly influenced the latter.
Stylistic similarities between Foucault and
Aristotle are striking. So too are methodological similarities.
Aristotle proposed the first real taxonomy of sciences, including the
human sciences. Foucault, though limiting his work to the human
sciences, was also working on the taxonomy of knowledge. Aristotle's
focused on man and nature and their relation to each other, whereas
Foucault focused on the relation between the body and knowledge, the
relation between power-knowledge
110 and body-knowledge.
111
Aristotle in contrast was looking at the world of nature to understand
the nature of Man.
Foucault's delimitation of the field of inquiry is
perfectly understandable. Natural science, though working from the
basic foundations of Aristotelian thought and the atomists, has
advanced incredibly in two thousand years and grown correspondingly
complex. One-time theoretical debates over whether matter and energy
are convertible are now empirically solved. Human sciences too have
advanced-economics has become empirical and scientific, for example.
But progress in human sciences has not been as great as progress in
natural sciences. Thus, both Aristotle and Foucault worked on the
unsolved problems of their times and did so by thinking of ideas and
things in structures. Foucault considered himself to be a
post-structuralist. But he worked from the starting point of the
structure of knowledge to critique the implications of structuring
knowledge. Aristotle built hierarchies and taxonomies. Foucault studied
structure and hierarchy to deconstruct them. Aristotle and Foucault are
each other's mirror image, one looking outward the other inward, one
looking to create power, the other to defuse it, yet their discursive
writing styles and method are so similar-despite being separated by two
thousand years.
Post-structuralists like Foucault have influenced
the law somewhat, notably through the critical legal studies movement
which seeks to deconstruct discourses about power to elucidate the
power relations that shape those
*17 discourses.
However, Aristotle had a much greater influence on the law: essentially
the post-structuralists are trying to deconstruct the hierarchies of
knowledge and power that Aristotle described. By exposing Aristotle's
thoughts on justice and pointing out some of his influence on law I
hope to help critical scholars work more effectively. We must study
Aristotle because no one else has influenced the structure of law and
of social science so much. Moreover, we must look at Aristotle because
his racist, sexist and homophobic thought should be extirpated from the
law in the interest of justice.
CONCLUSION
I more or less take a post-structuralist approach to
Aristotle: I seek to expose how his thought is structured by his views
on gender, race and sex to create self-justifying hierarchies of power.
At the same time, I wish to expose the concepts deployed through these
vectors of power. This separation allows us to salvage Aristotle's
ideas on logic, justice and causality which pervade the law. Thus,
rather than being trapped in disembodied Platonic dualism, sterile
positivism or powerless post-modernism, critical scholars obtain
conceptual instruments used to wield state power. Rather than rejecting
Aristotle outright, I try to resituate his discourse within the terms
of equality. If Aristotle's ideas can be cured of pervasive racism,
sexism and homophobia then they can become useful.
a1. JD, DEA, LLM, Dr.Jur. Dr.
Engle is currently a researcher at Harvard University
1. “
Therefore ‘it is reasonable
for Greeks to rule barbarians,’ say the poets, supposing that to be a
barbarian and to be a slave are by nature the same thing.” 10
Aristotle, The Politics of Aristotle (Peter L. Phillips Simpson trans.,
The Univ. of N.C. Press 1997) (350 B.C.).
2. “[I]n discussing women,
Aristotle leaves no doubt about their subordinate and domestic role. He
states clearly that men are better fitted to command than women.” W.W.
Fortenbaugh,
Aristotle on Slaves and Women, in 2 Articles on Aristotle
137 (Jonathon Barnes, Malcolm Schofield & Richard Sorabji eds., St.
Martin's Press 1977) [hereinafter Slaves and Women].
3. “
It is manifest then that by
nature some are free and others slaves and that service as a slave is
for the latter both beneficial and good.” Aristotle, supra note 1, at
17.
4.
Aristotle, The Politics of
Aristotle (Peter L. Phillips Simpson trans., The Univ. of N.C. Press
1997) (350 B.C.);
Aristotle, Nicomachen Ethics(*)
(Albert Keith Whitaker ed., Joe Sachs trans., Focus Publishing 2002) (
350 B.C.).
5. That's particularly true of
Heraclitus whose work is only available in fragments. See generally,
Heraclitus, Fragments (Brooks Haxton trans., Viking Penguin 2001) (501 B.C.).
6. See generally, Aristotle,
Posterior Analytics (Jonathan Barnes trans., Clarendon Press 1975) (
350 B.C.).
7. “True law is right reason in
agreement with nature; it is of universal application, unchanging and
everlasting ... And there will not be different laws at Rome and at
Athens, or different laws now and in the future, but one eternal and
unchangeable law will be valid for all nations and all times, and there
will be one master and ruler, that is, God, over us all, for he is the
author of this law, its promulgator, and its enforcing judge.” Cicero,
De Re Publica De Legibus 211 (Clinton Walker Keyes trans., William
Heinemann 1928) (51 B.C.).
8.
Oliver Wendell Holmes, The Path of the Law, 110 Harv. L. Rev. 991, 993
(1997) (Reprint of an “address delivered by Justice Holmes, of the
Supreme Judicial Court of Massachusetts, at the dedication of the new
hall of the Boston University School of Law, on Jan. 8, 1897”).
9. Aristotle, supra note 1, at
11.
10. “
It is clear, then, that
the city exists by nature and that it has priority over the individual.
For if no individual is self-sufficient when isolated, he will be like
all other parts in relation to their whole. But anyone who lacks the
capacity to share in community, or has no need to because of his
self-sufficiency, is no part of the city and as a result is either a
beast or a god.” Aristotle, supra note 1, at 11-12.
11. Id. at 11.
12. Id.
13.
Obrien v. Jones, 999 P.2d 95, 111 (Cal. 2000)
(tracing the origin of the doctrine of separation of powers to
Aristotle).
14. “This is in fact the nature
of the equitable; it is a rectification of law where it fails through
generality.”
Teamsters & Employers Welfare Trust of Ill.
v. Gorman Bros. Ready Mix, 139 F. Supp.2d 976, 978 (C.D. Ill. 2001).
(citing Aristotle, The Nicomachen Ethics
(*) of Aristotle 172 (J.E.C.
Weldon trans., Macmillan and Co., Ltd. 1930)(
350 B.C.)).
15. E.g.,
State ex rel. Sayad v. Zych, 642 S.W.2d 907,
916 (Mo. 1982) (en banc) (Gunn, J., dissenting).
16. “[L]aw itself is a
teleological endeavor, and that its purpose is to guide people as they
go about their daily activities. As such, the law should be clear and
understandable, for how can people follow its dictates if it is not? If
you take away that clarity to a sufficient extent, it is proper to
question whether you are dealing with law at all, as opposed to raw
power.”
U.S. v. Gen. Dynamics Corp., 644 F.Supp. 1497,
1500 (C.D. Cal.1986).
17. See, e.g.,
Robinson v. City of Detroit 613 N.W.2d 307, 330
(Mich. 2000);
State Farm Fire & Cas. Co. v. Slade, 747
So.2d 293, 313 (Ala. 1999).
18.
Plato, Republic 127 (Robin
Waterfield trans., Oxford Univ. Press 1993) (360 B.C.).
19. 2 Aristotle, Nicomachean
Ethics (Albert Keith Whitaker ed., Joe Sachs trans., Focus Publishing
2002) (
350 B.C.) (stating that we should only
search for the amount of precision that the subject allows).
20. Aristotle, Ethique a
Nicomaque 1098b 23-29 31 n.3, 108 n.1 (J. Tricot trans., Librairie
Philosophique J. Vrin 1959) (
350 B.C.).
21. Aristotle, supra note 19,
at 104 (stating that episteme concerns “things that are simply by
necessity are everlasting.”).
22. According to the
commentator, logikos or dialektikos concerns the generalities,
opinions, and thus is connected to tekhne. By way of contrast, phusikos
concerns itself with real facts which are certain and thus is linked to
episteme. Aristotle, thique a Nicomaque 108 n.1 (J. Tricot trans.,
Librairie Philosophique J. Vrin 1959) (
350 B.C.).
23. According to the
commentator the objective of praxis is to work on one's internal
constitution. Aristotle, thique a Nicomaque 31 n.3, 32 n. 3 (J. Tricot
trans., Librairie Philosophique J. Vrin 1959) (
350 B.C.).
24. “
And injustice is the
opposite in relation to what is unjust.” Aristotle, supra note 19, at
91.
25. Id. at 91-92.
26. “(
T)he just is that which
is susceptible to create or preserve in whole or in part the well being
of the political community.” Aristotle, thique a Nicomaque 1129a 18-20
(J. Tricot trans., Librairie Philosophique J. Vrin 1959) (
350 B.C.).
27. Aristotle, supra note 19,
at 92.
28. Aristotle, supra note 1, at
78.
29. Aristotle, supra note 19,
at 92-93.
30. “
Things are always defined
by its work and by its power.” Aristotle, supra note 1, at 11.
31. Id. at 9.
32. Id. at 10 (arguing that the
idea that the City, the Polis, develops from the extension of the
family).
33. Id. at 10-11.
34. Id. at 11-12.
35. “
For if no individual is
self-sufficient when isolated, he will be like all other parts in
relation to their whole.” Id. at 12.
36. Aristotle, supra note 1, at
9.
37. Id.
38. Id. at 11.
39. “
So it is manifest that the
city is among the things that exist by nature, that a human being is by
nature a political animal.” Id.
40. “
For ruler and ruled exist
by nature in the soul.” Id. at 31.
41. Id. at 15.
42. Aristotle, supra note 1, at
31-32.
43. “
l'enfant comme l'esclave
est une <<partie>>du pere et ne peut donc subir l'injustice
de sa part, mais il trouve son avantage a cette relation puisque le
père exerce son autorite de manière royale, pour le bien de son fils.”
Solange Vergni res, Ethique et Politique Chez Aristote 163 (Presses
Universitaires de France 1995).
44. Aristotle, supra note 1, at
17.
45. Id. at 16-17.
46. Id. at 17.
47. Id.
48. Id.
49. Id. at 16.
50. Aristotle, supra note 1, at
16.
51. “
En posant le probleme du
naturel servile, Aristotle a mis le doigt sur une possible violence
sociale exercee sur des hommes qui ne meritent pas d'etre d'esclaves.
Pour les femmes la doute n'existe pas. La femininite est marquee dans
the corps de maniere incontestable et la nature montre clairement le
role subordonnee qui convient aux femmes. Cette evidence, n'empeche pas
d'ailleurs une certain equivoque dans le maniere dont Aristotle d rit
la finalite le la nature feminine. Selon les traites biologiques, la
naissance d'une femelle traduit un echec de la finalite puisqu'elle
c'est provoquee par une r istance du matiere a la transformation de la
forme masculin. En meme temps, Aristotle sait bien que l'existence des
femmes est necessaire pour que la vie tout simplement reproduise.”
Solange Vergni res, Ethique et Politique Chez Aristote 171 (Presses
Universitaires de France 1995).
52. Aristotle, supra note 1, at
16.
53. “[I]n
discussing women,
Aristotle leaves no doubt about their subordinate and domestic role. He
states clearly that men are better fitted to command than women.”
Slaves and Women, supra note 2, at 137.
54. Aristotle, supra note 1, at
11.
55. Id. at 12.
56. Robert Graves, The Greek
Myths (Penguin Books 1993).
57. Aristotle, supra note 1, at
11.
58. Id. at 8.
59. Aristotle, supra note 19,
at 1.
60. Aristotle, supra note 1, at
11.
61. Id. at 12.
62. Id. at 11.
63. Aristotle, supra note 19,
at 10.
64. Id. at 80.
65. Id. at 79.
66. Id. at 80.
67. Id.
68. Id. at 38.
69. Aristotle, supra note 19,
at 80.
70. Id.
71. The logic of Aristotle is
generally binary.
72. Aristotle, supra note 19,
at 90.
73. Id. at 82-83.
74. Id. at 83 (describing legal
forms found in contractual and tort law in Aristotle's schemata).
75. Id. at 84.
76. Id.
77. Id.
78. Aristotle, supra note 19,
at 85-86.
79. Id. at 86.
80. Id. at 85-86.
81. Id. at 86.
82. Id.
83. “
What is equal is the mean
between the greater and the less.” Aristotle, supra note 19, at 86.
84. Id.
85. Id. at 88.
86. Id. at 88-89.
87. “
It is normal that the
Greeks command the barbarians.” Aristotle, supra note 1, at 10.
88. “
We are predisposed by
nature, but we do not become good or bad by nature.”
Aristotle, supra
note 19, at 28. That is, for Aristotle, different social classes and
races have different predispositions to virtue or vice, but this
potentiality in theory is actuated only in practice.
89. Id. at 23-24.
90. Id. at 91.
91. Aristotle, supra note 19,
at 88-89.
92. Id. at 94.
93. “An act of injustice
differs from what is unjust.” Id.
94. Id. at 95.
95. See, e.g.,
People v. Whitfield, 868 P.2d 272, 292 (Cal.
1994) (citing one example of Aristotle's influence on English
common law).
96. Aristotle, supra note 19,
at 80.
97. “
A decent person is
inclined to take less than others.” Id. at 97.
98. Id. at 98.
99. Id. at 100.
100. Id. at 99-100.
101. “
In justice all virtue is
together in one.” Id. at 81.
102. Aristotle, supra note 19,
at 29.
103. Aristotle, supra note1,
at 9 (discussing royal and political power).
104. Aristotle, supra note 19,
at 1-2.
105. Aristotle, supra note 1,
at 84.
106. Id. at 8-9.
107. 39
Heraclitus, Fragments
(Brooks Haxton trans., Viking Penguin 2001) (
501 B.C.).
108.
Adam Smith, The Wealth of
Nations (Alfred A. Knopf 1991) (1776).
109. Aristotle, supra note 1,
at 18.
110. See
Michel Foucault,
Language, Counter-Memory, Practice 199-217 (Donald F. Bouchard ed.,
Donald F. Bouchard & Sherry Simon trans., Cornell Univ. Press 1977)
(discussing the interrelation of knowledge and power, often in tandem
with the work of Gilles Deleuze).
111. See generally
Michel
Foucault, Discipline and Punish (Alan Sheridan trans., Vintage Books 2d
ed. 1995) (1977).