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MARCO ZINGANO

8 Natural, ethical, and


political justice

Aristotle's notion of natural justice has aroused many controver-


sies among commentators, and it would be promising too much to
attempt to settle on a single interpretation, much less a new one. I
will offer an interpretation of Aristotle's idea of natural justice that
tries to preserve its openness to different approaches, but at the same
time states some guidelines any interpretation (I surmise) should fol-
low in order to offer a sound reading of the text. These guidelines are
three in number, stated here as TI, T2, and T3. Together the three of
them establish a close connection between the Ethics and the Poli-
tics. Such a connection looks trivial at first glance, but at the end of
the day proves to be very rewarding- or so I think. I will begin with
some general comments on political naturalism in section I, and will
then dedicate a section to each of these three theses.

Justice is central to Aristotle's political thought. Political theory


deals with constitutions and cities; it aims at establishing the best
constitution in general, as well as the constitution most appropriate
to given circumstances. To do this, political theory first has to know
what our living well consists in, and living well is either reducible
to living justly, or at least has justice as one of its essential features.
This is aheady evident in Aristotle's distinction between correct and
deviant constitutions. The constitution is the very heart of a polis,
for apolis is a community of citizens sharing a constitution, so that a
change in constitution will result in an accordant change in the polis
(ill 31 r276br-4). Correct constitutions aim at the common benefit,

199
Natural , ethical, and politica l justice 201
200 MARCO ZINGAN O

general Aristot elian teleological approach. This means that the end
wherea s in the deviant ones, what is sought is only the benefit of
of a thing, or its telos, governs its constit ution and develop ment.
the ruler(s). Now, commo n benefit is not only the prosperity (in the
One is to judge or explain a thing in light of its completion, where
sense of great wealth) of most citizens; rather it is primari ly living
the thing present s itself in its fully developed and perfect state.
well, where that means living according to what is unqualifiedly just
1 Teleological explana tion is not seen as incomp atible with mechan -
(kata to haplos dikaion; III 6, 1279a18-19).
ical necessity; quite the contrary, it leaves a place for such neces-
Since justice is a basic ethical notion, ethics lies at the foundations
sity, but it makes mechan ical necessi ty subserv ient to final ends.
of politics. In a general sense, a just person is a moral person, such
Most emblem atic of this framework is Aristotle's stateme nt that
that being just is essenti ally the same as being moral, except that
hands are not the cause of man's intellec t, but that man has hands
justice is directed to one's relation s towards other people, wherea s
because of his intelligence: the mechan ical causes linked to hav-
moral virtue concern s one's actions towards oneself too. For to be
ing hands are subordi nated to the fact that man is an intellec tual
just and to be moral are the same disposition, but they are not man-
being. 3
ifested in the same way: justice is the disposition to act virtuou sly
In Aristotle's politica l thought, such a teleological approach
towards other people; virtue is the disposition with no such qualifi-
results in what one may call politica l naturalism.4 The main point
cation (NEV 1, 113oa12-13). Politics thus builds on ethical notions,
of political natural ism, for what concern s us here, is the reiterat ed
and a student of ethics will natural ly go to politics in order to bring to
Aristot elian thesis that man is by nature a politica l animal.s This
comple tion what Aristot le calls "the philoso phy of human affairs"
thesis can have two readings, a narrow and a broad one. Accord-
(NE X 91 II81b15). The notion of justice operates as ahinge betwee n
ing to the broad reading, it means that man is a sociable animal;
both disciplines, and it comes as no surprise that most of the refer-2
due to language and intelligence, man is the most gregarious among
ences from Politics to Ethics point to Book V, the treatise on justice.
all animals that live in groups. On the strict reading, it means that
And the reverse is also true: besides those passages in Ethics that
human beings live in cities, which are not only more comple x struc-
place ethics within politiea l science and take the latter as the archi-
tures than villages or households, but, more importantly, are con-
tectoni c science of human affairs, it is Book V that refers to, and is
stituted in order that men not only survive, but live well. On this
conceived in close connec tion with, the Politics. For instance, in V
t constit utions narrow reading, there is no animal other than man that can be polit-
I mentio n is made of the legislat or and of the differen
ical, for being politica l in this sense requires having logos - speech
(NEV 1, 1129bu -19), a typical topic of the Politics; and in V 2, it
or reason - and only human beings have logos. Aristot le sometim es
is said that it will be investig ated later whethe r it is the same to be
stresses the broad, sometim es the narrow reading. In Book I of Poli-
a good man and to be a good citizen, a questio n whose answer is
tics, for instanc e, he is eager to go from the one to the other within
found in Politics III 4. Not only does the Politics build on the ethical
a few lines: after stating that man is a politica l animal in the sense
notion of justice, but it also comple tes and finds solution s to prob-
of living in cities, he goes on to say that human beings are more
lems raised previou sly in NEV. And that, I contend, is particu larly
of a political animal than bees or other gregarious animals are (I 2,
true in the case of natural justice.
1253a1-18).
In order to avoid confusion, it is useful to distingu ish betwee n
However, being politica l by nature does not mean that human
general politics, the commo n and archite ctonic science of human
beings come to live in cities as a biological upshot of their instinct s.
affairs, and special politics, which is a branch of the first, and deals
It means instead that nature endows human beings with impulse s
with constit utions and cities, in contras t to ethics, which is the
that lead them to live in groups, and that human beings have the
other branch of general politics and deals with individual happi-
ability to organize those groups into cities, in so far as human beings
ness. Ethics is subordi nated to general politics, but provides spe-
are endowed with percept ion of what is harmfu l or beneficial, and
cial politics with its basic concep ts and notions. Both politics (and
hence of what is just or unjust. A parallel passage in Nichom achean
ethics as well), like other philosophical disciplines, are subject to the
202 MARCO ZINGANO Natural, ethical, and political justice 203

Ethics helps us understand Aristotle's argument here. In NE IT, Aris- as human beings possessing logos, the condition under which we
totle contends that, as moral virtues come about as a result of habit perfect ourselves as agents that do things "according to reason or
I

none of them arises in us by nature, for nothing that exists in this not without reason" (NE I 7, ro98a7-8).
sense of "nature" can form a habit contrary to it, but human beings Being a political animal means that perfecting themselves as
can be virtuous or vicious (NE Il r, rro3ar8-23). He then says that agents in this way requires men to live in a polis. Political life is
moral virtues arise in us neither by nature nor contrary to nature, not so much a necessary condition for physical existence, as it is
but that by nature we are able to receive them and make ourselves a requirement for the perfection of human agents interacting with
perfect by acquiring them. Aspasius, in his commentary, notes that others. And interacting well is equivalent to interacting justly. Now,
to describe a feature with the phrase "by nature" has several senses, Aristotle.distinguishes between two senses of justice. A man is just
and can mean that: in a general sense if he follows moral rules; in this sense, being just
is the same as being moral, except that justice is moral virtue related
r. a feature x is always co-present (as things that are heavy by to other people, whereas virtue may also concern the agent himself.
nature are borne downwards and light things upwards); The second sense of just, or special justice, is a species of this gen-
2. x is not co-present from the beginning, but after a time comes eral justice: it concerns the sphere of gain and loss, either in distribu-
for the most part to be present, even if we do not busy our- tive or in corrective dimensions. 8 This distinction is of far-reaching
selves about it (as with the natural growth of teeth); importance. For by making special justice a species of general jus-
3. x is liable to occur to an object as contraries are said to exist tice, Aristotle circumscribes a new domain, the domain of justice
by nature (as with disease and health in a body); as legal practice, as we know it nowadays (despite obviously many
4. x is liable to occur to an object that is more inclined to it historical differences). But he also equates general justice with being
and rather has impulses towards it (as health is by nature, in lawful, nomimon (NEV r, rr29b34), and this has important conse-
contrast with disease, which is contrary to nature). quences too. For being just in the generic sense cannot be simply
According to Aspasius, virtue does not belong to people by nature being law-abiding, for Aristotle recognizes that laws may be unjust,
in senses (r) and (2), "but it would be by nature in the third and and some are indeed unjust (the laws of deviant constitutions: Ill II,
above all the fourth of the senses mentioned. " 6 This list may not 1282b4-r3). However, if man is made perfect regarding agency only
be exhaustive, but it is enough for our purposes in the Politics: man in the polis, if the constitution is the form of a polis, being the orga-
is by nature a political animal in sense (3) and notably in sense (4), nization of its various offices, particularly those of authority over
comprising both a passive inclination and an active impulse to live everything, namely, government (politeuma ), such that government
in cities.7 The Nicomachean passage mentions another important is the core of constitution (III 6, 1278bro-r 1), it looks as if obedience
point. Aristotle says that, as we become virtuous, we improve our- to authority is built into the very idea of a man made perfect as an
selves and are made perfect by habit (II 1, rro3a25-26). The same is agent, given that being in a polis has been built into the very essence
true in the Politics. Anyone who is without a city (who is apolis not of man, and being just is tantamount to being lawful.
just by accident or bad fortune) is either phaulos or else a superhu- Special politics was grounded on ethics, but acting morally
man(! 2, r253a3-4). Aphaulos is not a beast, but a human being who, towards others requires being lawful, and this implies being obedi-
because of his vicious character, has debased himself beyond the pale ent to the ruler or governing class, which belongs to special poli-
of his own moral endowment - and Aristotle envisages the case of so tics. There is thus a circular reference between special politics and
ruining himself that such a person becomes incurably incapable of ethics, which may look problematic to a modern mind. 9 For circu-
living with others (NEV ro, II 37a26-30). The superhuman is above larity risks creating a serious difficulty, unless a single concept turns
human condition, a sort of godlike being, out of human reach. Now, out to ground both ethics and (special) politics. Political justice does
the polis provides the conditions under which we develop ourselves play exactly this role as unqualified justice, for, as such, it is the same
204 MARCO ZINGANO Natural, ethical, and political justice 205

as general politics, the common ground to special politics and ethics. are subordinated: the couple of male and female, the master-slave
Political justice obtains between citizens, on the basis of some form relation, both of these constitu ting the household, and the village;
of equality, and is permeat ed by law (NE V 6, n34a30) . "Politica l once several villages reach self-sufficiency, a teleios koinonia, a
good is justice, and justice is the common benefit" (ill 12, 1282b17 - perfect commun ity, or a polis, is attained. Aristotle recognizes just
18; seeNEV IIl 9, n6oa13- 14), so that political justice is in this sense or unjust relations in a couple, or between master and slave, and in
unqualif ied justice. This is why Aristotle writes that "It is evident
10 general in the household. He says, for instance , that the master-s lave
then, that those constitu tions that look for the common benefit tur~ relation is based on justice when the one is naturally superior, and
out to be correct, according to what is unqualifiedly just, whereas the other naturally inferior, so that "slavery is both just and benefi-
those which look only to the benefit of the rulers are mistake n and cial" (I 5, 1255a3). In EE VII 10, 1242a19-36, it is said that, as justice
are deviatio ns from the correct constitu tions" (ill 6, 1279a17-20J. concerns member s of a commun ity, and male and female aheady
As the correct constitu tions strive for common benefit, they satisfy form a commun ity, there is justice for couples too. So these are
what is unqualifiedly just. And by so doing they are political ly just. non-poli tical forms of justice, as Aristotle explicitl y acknowledges.
The equality in question, which brings about common benefit, as we But they are all justice of a sort, dilwion ti, in which ti brings in an
will see, is virtue, so that, in the perfect case, the best political man alienans meaning: not a case of justice strictly speaking, but some-
is also the most virtuous one. The individu al has in a sense no escape thing similar to justice. This might be taken in a negative sense: the
from the polis and its constitu tion, for it is only under its rule that he non-poli tical forms of justice fall short of justice, strictly speaking.
can attain perfection as an agent. But he need not seek to escape from But I think Aristotle intends to make a positive claim: thanks to a
it either, for in a relevant sense being lawful is equivale nt to being certain relations hip to political (general) justice, they lift themselv es
into justice, but only up to a point. And the relation that raises
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moral or just - at least in the correct constitu tions. For in the correct
constitu tions common benefit prevails, and this is the unqualif iedly them up to a certain point is resemblance. For Aristotle says that
just, that is, this is political justice. n despotic justice, paternal justice, and househo ld justice are not the
'same as political justice, but resemble it (homoion: NEV 6, n34b9).
The reason for this is that there are no just or unjust acts towards
II
what belongs to oneself - a slave is a form of property, and children
I would like now to introduc e the first of the three theses I will expli- also, at least up to a certain age; and this is why justice between
cate in the remainin g sections of this chapter. wife and husband resembles political justice more (mallon; NE V 6,
r 134b r s), for a wife is like property to a lesser extent than any of the
T1: Political justice is the basis for all human justice. others. Any case of justice other than political justice cannot but
This is a very strong thesis and deserves careful scrutiny. First of all, be justice of a sort, and thus falls short of justice strictly speaking,
human justice is contrast ed here with any other sort of justice, such but is nonethe less a case of justice in so far as it resembles political
13
as divine justice. Whateve r divine justice may be, if there is such a justice (NEV 6, n34a29- 30; ti dikaion kai kath' homoioteta).
justice, it is not our concern here; our only focus is on human justice. Now, resemblance has a technica l meaning in Aristotle. Two
Secondly, as we saw, Aristotle distinguishes between general justice cases are possible. If two things resemble each other, they do so
and being moral: general justice is the same as moral virtue, only either in virtue of a genuine connecti on between things, or in
that it is other-related. But is general justice the same as political virtue of a spurious connecti on. For the latter, for instance, Aristotle
justice? I think the answer is positive, because any case of justice speaks of akrasia by resembl ance in his treatmen t of spirit, honor,
other than political justice will prove to be a case of justice only in or gain (NE VII 41 n48a3; II48b6; n48b13 ; NE VII s, n49a3, VII
so far as it is somehow related to political justice. A polis is a com- 91 n51b33) ; for, strictly speaking (NE VII s, n49a2r- 24), akrasia
munity that turns out to be the end to which the other commun ities refers to a conflict between reason and very specific desires (those
207
Natu ral, ethical, and poli tical justice
206 MAR CO ZING ANO
rela tion of one part to the
). People spea k of akrasia psychic justice, mea ning by this the just
connected to the senses of touc h and taste othe rs with in the soul. Aris totle rejects
16 with out furt her ado the
Aristotle, this is because of
of gain, honor, or spirit, but, according to Plat onic noti on of psychic justice, rem arki
ng that ther e is no jus-
mblance, for ther e is actu- only "me taph oric ally and
a spurious conn ectio n based on mer e rese tice betw een a man and himself, and it is
of fact, connections of spu-
ally no alaasia in thes e cases. As a mat ter by resemblance" (NE V II, r138b5-6) that
there is just ice betw een
ther; one says, for instance, eives of justice as reason
rious resemblance and met apho r go toge cert ain part s of him. Worse, as Plato conc
this is only beca use of a
that anim als have prac tical wisd om, but com man ding the non ratio nal part s of the
soul, such just ice wou ld
e us spea k met apho rica lly er than poli tical justice,
spurious resemblance to men whi ch mak rese mbl e despotic or hou seho ld justice, rath
mbl ance reflects a genu ine er inequality, as is also
(NE VII 6, r r49b32). But som etim es rese
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discussion of friendship, for the latte r requires equality, but the form
connection. According to the Nicomachean the case for the ratio nal part com man ding
the non ratio nal ones. So
are correctly spok en of as
for instance, the thre e kind s of friendship if ther e wer e psyc hic justice, it wou ld be a
resemblance of a resem-
VTII 41 IIS6b20; NE VIII
"friendships" due to thei r resemblance (NE blance, for despotic justi ce is already a rese
mblance of poli tica l jus-
e mirr ors a genu ine con-
5, IIs7 a32; NE VII II, IIs2 b5). Resemblanc tice - quit e an iron ic rem ark against Plat
o.
or here. rs
nect ion amo ng them - ther e is no met aph The re is still ano ther way of spea king of justice, in whi ch one
totle rem inds us (NE
Man y thin gs rese mbl e one another, as Aris claims to be just, but such a clai m fails to
represent really just rela-
whe ther the conn ecti on are a cert ain form of jus-
VII 9, r r 5 r b33 ); one has to see in each case tions. Aris totle says that all cons titut ions
ce, hou seho ld and despotic munity, and all com mun i-
is genuine or spurious. In the case of justi tice, given that every con stitu tion is a com
r resemblance to poli tical
relations are said to be just beca use of thei ties rest on som e sort of justi ce (EE VII 91
124 rb13 -r4) . Hence, ther e
the former are justices of
justice; the latte r is unq uali fied ly justice, is just ice even in the devi ant ones, and one
shou ld cons eque ntly ask
mblances? I thin k they are are" (III 9, 128oa8-9). The y
a sort. Are they genu ine or spur ious rese "wh at oligarchic and dem ocra tic justi ces
ght, associations of individ- titut ions look at priv ate
genuine. In Aris tote lian teleological thou are not unqualified justice, for deviant cons
d on thei r own, but repre-
uals in couples and hou seho lds do not stan benefit, not at com mon bene fit (1117, r279
b6-r o). One mig htsa y that
ect com mun ity, the polis.
sent stages toward, or are part s of, the perf they are just privately (III 13 1 1284b23-24,
applied to ostracism). But
; each just rela tion take s of a sort " (dikaion ti; III 91
As com mun ities , they have justi ce of a kind is this really justice? All grasp "jus tice
nding com mun ity, whi ch
on the met aphy sica l stat us of the correspo 128oa9), such that all take it to mea n equa
lity (in whi ch all are right),
they are no mer e metaphor;
is a part of the polis. As justices of a sort, but they judge equa lity wrongly (kiinousi
n kak6s; III 91 !28o ar4) as
thei r teleological depen- cy). Now, ther e is a claim
on the contrary, thei r rese mbl ance reflects wea lth (oligarchy); or as freedom (democra
corresponding com mun i-
dence on poli tical justice, in so far as the of justice indeed, for no one claims to foun
d a com mun ity based on
aphy sica l basis imposes a
ties are part s of the polis. This sam e met injustice. But it is a false claim. Aris totle
has no specific wor d to con-
rese mbl ance relationship, by oligarchs or democrats,
reference poin t (political justice) onto the vey such a claim of justice as that mad e
met rica l relation, so that A "justice of a sort ," already
for, thou gh rese mbl ance as such is a sym and refers to it by the phra se dikaion ti,
in this case, as one precise But here ther e is no justice
resembles B no mor e than B resembles A, applied to such cases as despotic justice.
the othe r ones are stages,
item (the polis) is the telos towards whi ch at all, only a !false) claim of justice. Such
a claim does not enjoy that
rate s a kind of justi ce (that es despotic just rela tion s
it occupies the prim ary posi tion and gene rese mbl ance to (political) justice that mak
are supposed to resemble. totle says that deviant
is, poli tical justice) whi ch the othe r ones justi ce of a sort. A sign of this is that Aris
rica lly abou t resem-
However, it is also possible to speak met apho cons titut ions (and cons eque ntly thei r claim
s of justice) are contrary
conn ecti on corresponds to the sam e of dom estic or
blan ce to justice, such that no genu ine to natu re (III 17, 1287b4r), but never says
man bein g just to himself,
it. This is the case whe n one speaks of a despotic justices.
all justice is reducible to
as Plato did in the Republic, claiming that
r'latura1, em1ca1, ano po11uca1 1ust1ce 209

III in the sense of special injustice. The notion of gain (and its contrary,
The central place ascribed to the polis and to political justice is no loss) refers not only to materially acquired goods, but includes any
novelty in antiquity, although the Aristotelian teleological frame- external good, such as honor or safety (NEV 2, 113ob2). The vice
work provides it with more consistent foundations. But Aristotle attached to special justice is pleonexia, having more; in contrast,
makes a second move, and this move is a novelty in ancient political being just in this sense amounts to having the gain one deserves,
philosophy. according to a proportion (analogon ti, NEV 3, u3ra29). The pro-
portional rule makes the relation equal: if A made one-third of X,
T2: There are various kinds of political justice. and B two-thirds of it, then A deserves one-third and B two-thirds
of what is produced or whatever by X. The central notion of special
A classical question in ancient times was about the best regime. justice is hence equality of certain goods, but, as a type of general
Aristotle tackles this problem too, but offers a new answer. In a justice, its key notion is equality (to ison) of certain goods. The pro-
sense, he conforms to the traditional standards: he recognizes that portion will be either "geometrical" or "arithmetical," to use the
one of the tasks of political philosophy is to determine which is Aristotelian jargon: if it is distributive justice, it will be "geometri-
the best constitution, and proposes his candidate for such a contro- cal" in the sense that it is proportionate to the merits of the persons
versial question: kingship, "the first and most divine constitution" involved; if it is corrective justice (either commercial or juridical),
(IV 2, 1289a40), in face of which even polity and aristocracy "fail it will concern only the loss or gain of the objects about which the
utterly" (IV 8, 1293b25: diemartekasi). But there is an important action or transaction was made, independently of other merits the
novelty here. To come up with one best constitution, Aristotle has agents might exhibit, in accordance with an "arithmetical" propor-
first to discuss what a good constitution consists in, that is, what a tion. Both distributive and corrective justice will follow a rule of
correct constitution is. And on this topic, he determines that there commensurability fitted to their natures, and will be just in so far as
is not only one correct constitution, but a variety of them. Indeed, they preserve some equality.
there are three: kingship, aristocracy, and polity. For they all look to Thus, in a polis, special justice requires some sort of equality, for
the common benefit, and in so doing they all put into practice polit- it is a type of justice, and general justice is equality. All agree on
ical justice. Thus, to answer a classical question - What is the best this: "Justice seems to be equality, and indeed it is" (III 9, 128oaui
constitution? -Aristotle proposes three constitutions, which are all V 1, 13orn26-27). But equality with regard to what? There are differ-
correct because they all search for the common benefit. And this is ent answers, depending on the context and the subject in question.
a new and far-reaching move. In a commercial transaction, for instance, gains and losses are to be
To understand the significance of this move, one has to go back equalized in accordance with some proportion. But to answer this
to the relation between general and special justice. Special justice is question in the most general, or abstract, but still relevant way, one
a species of general justice, the other-related moral virtue, which is has to see what the end of the polis is: namely, living well. And liv-
its genus. Every case of special justice is a case of general justice, but ing well is acting nobly: "So political communities must be taken
not every case of general justice is a case of special justice. Special to exist for the sake of noble actions, and not for the sake of living
justice is justice concerned with grasping the right amount of goods, together" (III 9, 1281a2-3 ). It remains only to name that in relation to
such that if a man has undue gain, he will act unjustly in this specific which, in the most abstract way, everything else is to be equalized,
sense of justice. To take an Aristotelian example, a man who com- as gains and losses in a commercial transaction: "The best life, both
mits adultery to gratify his lust and happens to lose money is unjust for individuals separately and for cities collectively, is a life of virtue
in the sense of general justice, but not unjust in the sense of special sufficiently equipped with the resources needed to take part in virtu-
justice, whereas the one who commits adultery for the sake of gain is ous actions" (VII 1, 1323b40-24a2). Thus, Aristotle's answer to the
not only unjust in the general sense, but also and specifically unjust question of what, in its most general expression, is to be equalized,
Natural, ethical, and political justice 209
208 MARCO ZINGANO

III
in the sense of special injustice . The notion of gain (and its contrary,
loss) refers not only to material ly acquired goods, but includes any
The central place ascribed to the polis and to political justice is no external good, such as honor or safety (NEV 21 u3ob2). The vice
novelty in antiquity , although the Aristote lian teleological frame- attached to special justice is pleonexia, having more; in contrast ,
work provides it with more consiste nt foundations. But Aristotle being just in this sense amounts to having the gain one deserves,
makes a second move, and this move is a novelty in ancient political according to a proporti on (analogon ti, NEV 31 u3ia29) . The pro-
philosophy. portiona l rule makes the relation equal: if A made one-thir d of X,
and B two-thir ds of it, then A deserves one-thir d and B two-thir ds
T2: There are various kinds of political justice. of what is produced or whateve r by X. The central notion of special
justice is hence equality of certain goods, but, as a type of general
A classical question in ancient times was about the best regime.
justice, its key notion is equality (to ison) of certain goods. The pro-
Aristotle tackles this problem too, but offers a new answer. In a
portion will be either "geomet rical" or "arithme tical," to use the
sense, he conforms to the tradition al standards: he recognizes that
Aristote lian jargon: if it is distribut ive justice, it will be "geomet ri-
one of the tasks of political philosop hy is to determin e which is
cal" in the sense that it is proporti onate to the merits of the persons
the best constitu tion, and proposes his candidate for such a contro-
involved; if it is corrective justice (either commer cial or juridical),
versial question: kingship, "the first and most divine constitu tion"
it will concern only the loss or gain of the objects about which the
(IV 21 I289a40), in face of which even polity and aristocracy "fail
action or transact ion was made, independently of other merits the
utterly" (IV 8, I293b25: diemartekasi). But there is an importa nt
agents might exhibit, in accordance with an "arithme tical" propor-
novelty here. To come up with one best constitu tion, Aristotle has
tion. Both distribut ive and corrective justice will follow a rule of
first to discuss what a good constitu tion consists in, that is, what a
commen surabilit y fitted to their natures, and will be just in so far as
correct constitu tion is. And on this topic, he determin es that there
they preserve some equality.
is not only one correct constitu tion, but a variety of them. Indeed,
Thus, in a polis, special justice requires some sort of equality, for
there are three: kingship, aristocracy, and polity. For they all look to
it is a type of justice, and general justice is equality. All agree on
the common benefit, and in so doing they all put into practice polit-
this: "Justice seems to be equality, and indeed it is" (III 9, I28oaI I;
ical justice. Thus, to answer a classical question - What is the best
V 11 13oia26-27). But equality with regard to what? There are differ-
constitu tion? - Aristotle proposes three constitu tions, which are all
ent answers, depending on the context and the subject in question .
correct because they all search for the common benefit. And this is
In a commer cial transacti on, for instance , gains and losses are to be
a new and far-reaching move.
equalized in accordance with some proportion. But to answer this
To understa nd the significance of this move, one has to go back
question in the most general, or abstract, but still relevant way, one
to the relation between general and special justice. Special justice is
has to see what the end of the polis is: namely, living well. And liv-
a species of general justice, the other-re lated moral virtue, which is
ing well is acting nobly: "So political commun ities must be taken
its genus. Every case of special justice is a case of general justice, but
to exist for the sake of noble actions, and not for the sake of living
not every case of general justice is a case of special justice. Special
together " (III 91 1281 a2-3 ). It remains only to name that in relation to
justice is justice concern ed with grasping the right amount of goods,
which, in the most abstract way, everything else is to be equalized,
such that if a man has undue gain, he will act unjustly in this specific
as gains and losses in a commer cial transaction: "The best life, both
sense of justice. To take an Aristote lian example, a man who com-
for individuals separately and for cities collectively, is a life of virtue
mits adultery to gratify his lust and happens to lose money is unjust
sufficiently equipped with the resources needed to take part in virtu-
in the sense of general justice, but not unjust in the sense of special
ous actions" (VII 11 1323b40-24a2). Thus, Aristotle 's answer to the
justice, whereas the one who commits adultery for the sake of gain is
question of what, in its most general expression, is to be equalized,
not only unjust in the general sense, but also and specifically unjust
Natural, ethical, and political justice 2II
210 MARCO ZINGANO

everyone else in virtue, so that it would be unfair for him to be ruled


is equality of virtue. Moral virtue is the measure of justice in the
instead of ruling - unfair to so high a degree that he is not even to
correct constitu tions. In order to be spread over all the polis, the city
be restraine d by laws. 1 9 He enjoys such a privileged place because
must provide leisure and other prerequisites for the citizens' (moral)
he is himself the moral law in its perfection. Second is aristocracy,
flourishing.
However, one thing is to distribut e the material preconditions for in which a group of virtuous citizens hold power and authorit y over
other free men. Polity comes third; it is a correct constitu tion, but
virtue as everyone is suppose d to be capable to become virtuous ,
it stands in the last place, for it is a multitud e of men, not necessar-
another thing is to cope with the citizens' variable realizati on of this
ily virtuous individually, but all having a part of virtue, such that,
same capacity to become virtuous . And here there is a brute fact in
collectively taken, they prove to be similar to the virtuous men.
political life that one has to take into account: we do not all develop
It looks as if the greater their number, the lesser their individu al
an equal share of virtue. Human nature could have been such that
moral quality: one man, surpassing all others in virtue; a few virtu-
we all would develop an equal share of it, but as a matter of fact it is
ous men, but such that they can be surpassed by a king; a multitud e
not. On the contrary: judging by the life people actually share, "since
having only a share in virtue, but behaving collectively as virtuous
happine ss is the highest good, and happiness is some sort of activity
men do. Aristotle gives us no justifica tion for this decreasing pro-
of virtue, that is, a perfect exercise of it, and since, as it happens,
portion of virtue. It seems to be a brute fact, somethi ng experience
some people manage to get a share in virtue, whereas others do so
teaches us to reckon with; perhaps it is a remainin g trace of Platonic
only to a small degree or not at all, it is clear that this is why there
pessimis m. It is worth noting that, when Aristotle discusses polity,
are different kinds of city-stat es and a variety of constitu tions" (VII
he assumes that virtue cannot govern directly, because it is the mul-
8, 1328a37-41). 1 7 From this brute fact-the fact that we are unequal
titude that rules. Instead, many individuals, each of whom has only
with regard to the practice of virtue - flow some consequences. One
some share in virtue (even a small one), govern collectively, and dis-
consequ ence is the triple refraction of the best constitu tion in king-
tribute offices according to property qualifications - not necessarily
ship, aristocracy, and polity: a multitud e should be under kingship
to themselves, but to the rich. This is not exactly what one would
when there happens to be someone so superior in virtue that it would
nowadays call a democracy. In fact, it is only in the constitu tion "of
be unfair that he be ruled by others; the multitud e is suited to aris-
our prayers, 11 which is free of all factual limitatio ns, that Aristotle
tocracy when there is a qualified group of people whose possession of
envisages a regime in which all, or a majority, of the citizens take
virtue makes them proper rulers to other free men; and a multitud e
turns sharing in governm ent, having full compreh ension of human
is fit for polity when there naturally arises within it a group, sim-
well-being and acting virtuously. But this is what we wish for, not
ilar to the hoplites, which is capable of ruling and being ruled, and
what we see around us. When Aristotle looks at the world as it is -
distribut es the offices to the rich on the basis of merit (III 17, 1288a8-
not at the traditional political systems, but at human nature as it
15 ). 18 Another consequ ence is that, as the virtue of a citizen is suited
proves to be - his expectations are limited. Aristocracy is the virtu-
to the constitu tion of his polis, "consequently, if indeed there are
ous governm ent that is most attainable,2 but it is always liable to
several kinds of constitu tion, it is clear that there cannot be a single
be either surpassed in justice by a king of high-standing moral qual-
virtue that is the virtue - the perfect virtue - of a good citizen" (1114,
ities, or downgraded to a multitud e of rulers and ruled, virtue being
1276b30-33). There are thus several justices (V 9, 1309a37-39), and
preserved collectively, but not individually.
educatio n, which is so central a task for every polis, is to be adapted
to each one (V 9, 1310a16-17).
The grip of ethics on special politics proves again to be quite
strong. The three correct constitu tions are ordered on the basis of IV
how moral virtue is present in political activities. Kingship, the
I can now state my third thesis, which is in line with the first two
divine constitu tion, occupies the first position in so far as, in it, polit-
and will bring my argumen t to a close.
ical and moral virtues coincide. The king is the one who surpasses
212 MARCO ZINGANO Natural, ethical, and political justice 213

T3: Natural justice is part of political justice, and is to be contrasted here again conventions are decisive (V 8, 1308b4-19). Or again expo-
with conventional justice. sure, deeply embedded in conventions (VII 16, l335b19-25). They
are all conventional - but none is trivial. The law is often arbitrary
The main passage on natural justice is NEV 7, l l34b18-35a5. This with respect to the manner in which some action is accomplished.
is a much-discussed passage. Roughly speaking, commentators have That the action should be accomplished somehow is not, however,
to choose between two opposing positions: (a) it is the polis that calls an arbitrary matter. The very fact of being a citizen, which is so cen-
any justice into existence, including what is called "natural justice"; tral for a polis, depends on arbitrary conventions, such as having both
or (b) there is a kind of justice that men recognize, independently of parents as citizens, or only one, either the father or the mother (III 2,
the form of community to which they belong, for such a justice is 12 75 b22-24), but that a polis should have citizens is not an arbitrary
grounded in the very nature of man. 21 I will side with (a), but I am matter.
more interested here, not in arguing for a position, but in trying to That so many laws are in fact arbitrary has misled people to think
understand how such different positions came to be attributed to that all law is rooted in arbitrariness, assuming that if there were
Aristotle. a natural law, it would be unchanging, but every law is liable to
To begin with, it should be noted that this passage places natu- change. Now, Aristotle resists this argument, at least for human
ral justice within the realm of political justice. 22 The contrast is not justice, 26 for although every law is liable to change, some are nat-
with political, but with conventional23 justice, natural and conven- ural, and some are not, according to him. But instead of explaining
tional both being parts of political justice. In this sense, one should how liability to change is not incompatible with being natural, he
reject any interpretation that takes natural justice to be something only says that it is plain which laws are conventional, and which are
possessed in a state of nature. 2 4 What is natural, as opposed to con- natural, given that both sorts are changeable. 27 This is disappoint~
ventional, need not be ante-political- and Aristotle explicitly denies ing, and the analogy he provides next (the right hand is superior by
that it is. A second remark concerns conventional law. Conventional nature, and yet it is possible that everyone should become ambidex-
28
law is such that in the beginning it makes no difference whether it trous) gives no definite clue about how to understand his claim. He
is enacted in this way or another, but once enacted, it does make a adds that laws by convention are similar to units of measurement:
difference if one does things in one way or another (V 7, II34b20- they are not everywhere of equal size, but are liable to change. Sim-
21). Now, it is sometimes supposed that such enactments concern ilarly, justice by convention2 9 is not everywhere the same, granted
only trivial things, such that it makes no real difference whether that neither are the constitutions; nevertheless, there is only one
there is an enactment or none at all. This may be the case for some constitution which is the best everywhere.3 One knows from the
of them, but is surely not the case for all, and possibly not for most Politics that this constitution is kingship; but it is not clear how this
of them. 2 s All constitutions have three parts: (i) deliberation about comparison explains the relation between natural and conventional
public affairs; (ii) division of offices issues; and (iii) organization of justice.
lawsuits. All three parts depend crucially on conventions. Take for If any clue is to be found, it lies somewhere between NE V and
instance the selection of officials: "Either all select from all by elec- the Politics, for, as we saw, these are conceived of as closely con-
tion, or all select from all by lot (and from all either by sections - nected texts.31 Now, there is only one constitution which is the best
by tribe, or by deme or clan, until all the citizens have been gone everywhere (kingship); and yet, there are three correct (and natural)
through- or from all on every occasion); or from some by election or constitutions. This already suggests variability of a kind. The three
from some by lot; or partly in the first way and partly in the second" constitutions search for common benefit; to attain it, they enact
(IV 14, l3ooa23-27) - and there are still other alternatives regarding laws. And enactments inevitably bring arbitrariness in. Variability
the selection of officials, such as selecting officials only in summer- of another sort proliferates. You ought to bury your parents; but how
time, or not during harvests, and so on. Or take the case of ostracism: to do it? By covering the bodies with a thin layer of dust, putting
Natural, ethical, and political justice 215
214 MARCO ZINGANO

bodies deep in the soil, or keeping the ashes in an um? Natural Alcidamas' opinion on slavery: slavery is, according to Aristotle, nat-
and conventional laws are irremediably entangled one with another ural in a relevant sense. Moreover, in what regards Antigone, who is
in the correct constitutions; nonetheless, we can distinguish them. mentioned twice, Aristotle seems to suggest in I l 5 that appealing to
This is the clue for how to distinguish them: one best constitution, natural law is tantamount to appealing to a law that never changes,
but correctness already and naturally refracted into three constitu- in open conflict with what he says in the passage on natural justice.
tions. Variability, but no arbitrariness, for they all look to common It looks better to be wary of collecting clues from the Rhetoric -
benefit. Arbitrariness enters when constitutions are to have a body of either on the grounds that its examples are not to be taken too seri-
laws. And constitutions cannot but have a body of laws. The picture ously, or that, in I l 5 Aristotle is simply illustrating how to persuade
1

Aristotle puts forward is not one of two separate domains, governed other people by means of nontechnical proofs, without committing
33
by legal justice, on the one hand, and natural justice on the other, himself to adhering to any of the content of these proofs.
but of a common domain (political justice), within which natural Nonetheless, the Rhetoric hints at something that is worth pursu-
justice is like an old tropical tree overwhelmed by numerous epi- ing: a form of justice that allows individuals to make claims against
phytic plants, that is, by legal justice, but such that one can detect enacted laws and decrees of the polis. This may be an appeal for
which law stems from which domain. If one does not make such dis- equity, and thus remain within the juridical system, but it may
tinctions, the ensuing blur will tend to favor conventionalit y, as if also go beyond. Two examples, one in the Politics, the other in
one were to lose sight of the tree beneath all those epiphytic plants: Nichomachean Ethics, are telling in this regard. In Nichomachea n
"Fine things, and just things, which political science investigates, Ethics, Aristotle says that, as there is no friendship or justice towards
involve great variation and irregularity, so that they may be thought inanimate things, no more is there friendship or justice towards a
(dokein) to exist by convention alone, a:rid not by nature" (NE I 3 1
slave in so far as he is a slave, for a slave is an inanimate tool. And he
ro94b14-16). adds: "In so far as he is a slave, then, one cannot be friends with him,
However, commentators have looked elsewhere to find clues on but only in so far as he is a human being; for there seems to be a jus-
how to interpret NE V on natural justice. Three passages in the tice of a kind (ti dikaion) that obtains for any human being in relation
Rhetoric look promising at first glance. In I ro, law is presented to anyone capable of sharing in law and taking part in agreements"
as either private or common; and common law is said to be "all (NE VIII II, n61b5-7). This excludes, for instance, wantonness, or
those unwritten principles which are supposed to be acknowledged cruelty, solely on the basis of someone's being a human being, irre-
spective of his position in a political system. Hence it doesn't seem
everywhere" (Rhet. I ro, l368b8-9). In I 13, natural justice is said
to be common to all, "as everyone to some extent divines" (Rhet. to fall under the cases of justice by resemblance, as was the case for
despotic justice. Similarly, in the Politics Aristotle writes, en pas-
I 13, l373b7).32 Three examples are given: Sophocle's Antigone in
her struggle to bury her brother Polyneices; Empedocles and his pro-
sant that "one should not hunt human beings for a feast or sacri-
hibition of slaughtering animals; and the condemnation of slavery, fice"' (VII 2, lp4b39-40), which probably is meant to include any
human being you may meet when hunting, in so far as they are
denounced by Alcidamas as contrary to nature. Finally, in I 15, Aris-
totle notes that Antigone appeals to the universal law as more just human beings, irrespectively of any other (political) consideration.
than written laws, and that one should assume that principles of Aren't those cases quite distinct, outside the limits of the polis and
equity are permanent and changeless, and consequently that com- imposing on the polis justice claims solely on the basis of human
mon law does not change either, since it is the law of nature (Rhet. I nature?
Those cases go beyond T1, but T1 is not incompatible with them.
15, l375a31-33). But Rhetoric is not of much help. The examples in
I l 3 are rather surprising. Empedocles' prohibition of eating animals As a matter of fact, they have a common ground. One of the assump-
tions for T1 was the idea that ethics gives special politics its ground.
is hardly an opinion Aristotle would hold; in Politics I 8, 1256b15-
Now, being moral, in a very basic sense, consists in accepting other
20 he expressly argues against it. The same can be said about
216 MARCO ZINGANO Natural, ethical, and political justice 217

people as recipients of respect and consideration. Morality's bedrock WORKS CITED


consists in treating other people as people like us, and thus implies Aubenque, P. 1980. "La Loi chez Aristote." Archives de Philosophie XXV:
no longer conceiving of myself in an absolute or central position,
147-57
but in some sense as equal to others. This basic trait is captured by Brunschwig, J. 1996. "Rule and exception: on the Aristotelian theory of
the philosophical notion of altruism: acknowledging other people equity." In Rationality in Greek Thought, eds. M. Frede and G. Striker.
as such, so that selfishness is tempered by recognition of others as Oxford University Press
people like us. There are several ways of recognizing other people Cooper, J. 1996. "Justice and Rights in Aristotle's Politics." Review of Meta-
as such, as different historical moral systems testify. Such recogni- physics XLIX: 859-72
tion may be rather restricted, or expansive, or as thin as possible, or Destree, P. 2000. "Aristote et la question du droit naturel." Phronesis XLV:
quite thick - one may take the other to be a rational person, inde- 220-30
Irwin, T. H. 2007. The Development of Ethics, vol. I. Oxford University Press
pendently of time and culture, or a historically determined person,
Joachim, H. 195!. Aristotle: the Nicomachean Ethics. Oxford University
living in a precise place, adopting such and such habits. In the Pol-
itics, this moral foundation is present as the basic idea that justice Press
Keyt,. D. 1987. "Three Fundamental Theorems in Aristotle's Politics."
is a sort of equality - one may dispute what should be equal (oli-
Phronesis XXXII: 54-79
garchs take it to be wealth; democrats, freedom; aristocrats, virtue: Konstan, D., trans. 2006. Aspasius, On Aristotle's Nichomachean Ethics I -
IV I294arn-II), but everyone agrees that justice is equality. What 4, 7-8. London: Duckworth
Aristotle is doing when he appeals to cases such as the absolute inter- Kraut, R. 1996. "Are there Natural Rights in Aristotle?" Review of Meta-
diction on human hunting, I surmise, is drawing the limits of moral- physics XLIX: 7 5 5-7 4
ity, setting up the boundaries of acknowledgement of other people 1997. Aristotle Politics, Books VII and VIII. Oxford University Press
as worthy and deserving of respect. This is a very basic position. It 200 2. Aristotle: Political Philosophy. Oxford University Press
does not say yet whether this position is a detached, impartial view Miller F. D. 1989. "Aristotle's Political Naturalism." Apeiron XXII: 195-218
of others, or a committed and engaging communal perspective, but 199r. "Aristotle on natural law and justice." In A Companion to Aristo-
it already makes the balance between what is within and what is tle's Politics, eds. D. Keyt and F. Miller. Oxford: Blackwell
without the moral domain.34 Making room for other people from 1 5. Nature, Justice, and Rights in Aristotle's Politics. Oxford University
99
my own vantage point - this is the demarcating line of the moral Press
1996. "Aristotle and the Origins of Natural Rights." Review of Meta-
point of view. In this sense, as one draws the line between moral and
physics XLIX: 873-907
immoral behavior, one simultaneously demarcates the boundaries of Newman, W. 1887. The Politics of Aristotle. 4 vols., Oxford University Press
politics and justice. It is thus not TI, for TI describes what is within Pellegrin, P., trans. 1990. Aristote: Les Politiques. Paris: GF Flammarion
these boundaries. But it is not incompatible with TI: indeed, it is Reeve, C. D. C. 1998. Aristotle, Politics. Indianapolis, IN: Hackett
those very boundaries that constitute the domain of ethics, which Rosler, A. 20o5. Political Authority and Qbligation in Aristotle. Oxford
are the grounds for politics. No justice has an ante-political dimen- University Press
sion, but all justice depends on those very limits that draw an area Yack, B. 1990. "Natural Right and Aristotle's Understanding of Justice."
within which morality springs, thrives, stagnates, or fails. If this is Political Theory 18: 216-37
so, the polis that calls any justice into existence rests precisely upon
those very limits that delineate the domain of ethics, and impose
acknowledgment of other people as human beings like us, at least in NOTES

so far as to be a political animal is in a relevant sense to be a moral l. "Unqualified justice" translates to haplos dikaion, that is, justice taken
agent. without further qualification or specification. It is opposed to justice
219
218 MARCO ZINGANO
Natural, ethical, and political justice

is opposed to
under some qualification, such as "househol d justice," which applies 10. Private benefit is the opposite of common benefit; as it
unqualified justice (III 13, 1284b23--25), common benefit is unqualified
to just relations obtaining between master and slave.
justice. In NEV 6, 1134a24--26, however, it is said that "we must not
2. This is a common book (NEV= EE IV). Four out of six references are
forget that we are looking for what is just without qualificatio n and
to Book V: II 2, 126rn31; III 9, 128oa18; and III 12, 1282b20; VII 14,
political justice," and this can be taken as distinguish ing one from the
1333a8 most probably refers to V 1, n29b30--3 1. The other two (IV II,
other (see Miller 1996). But this is not necessary, for they also may pro-
1295a36 and VII 13, 1332a22) concern the definition of happiness, and
visionally be taken as distinct for the sake of research (to zetoumeno n),
may refer either to NE or to EE. The first reference, though (as well as
so that they will eventually turn out (not in NE, but in the Politics) to
another passage closely connected to it, VII 8, 1328a37--38), seems to
be the same.
refer to NE VII 13, n53brn--n , which is a common book, and most to determine whether the common benefit is taken
II. A connected issue is
likely belongs originally to EE. For the last one, it is less clear. Perhaps
collectively (the communit y as a whole) or distributiv ely (each and
it refers to NE III 6 or IX 9, but it may also refer to EE VII 2, 1236b39--
every citizen). This is a pressing issue, but does not concern directly
37a3 (or 1248b26, as Newman proposes). In general, thus, the Politics
my point here. For a detailed discussion, see Miller 199 5.
refers rather to EE than to NE. of a sort, even
3. De part. anim. IV 687a8--10, criticizing Anaxagoras' opinion to the con- 12. Aristotle says the that male-fema le relation has justice
if there is no polis (EE VII rn, 1242a26--27 ), which shows that, in his
trary. of communit ies existing
teleological framework, there is no problem
4. There has been much debate about Aristotle's political naturalism ; generation) , so long as they
previously to polis (that is, being prior in
for a recent and stimulatin g treatment of this topic, see Keyt 1987, is, so long as they attain their perfec-
exist for the sake of the polis, that
which addiesses criticisms of three major theses of Aristotelia n political communit ies and, hence, pre-politic al
tion only in polis. Pre-political
naturalism : (i) man is by nature a political animal; (ii) the polis is a with a teleologica l approach; what is
kinds of justice are compatible
natural entity; and (iii) the polis is prior in nature to the individual. cal communit ies and kinds of
incompatib le with it would be ante-politi
Political naturalism is to be distinguish ed from natural justice; see sec-
justice, in the sense that they would exist with no regard to, and inde-
tion IV.
pendently of, the polis.
5. This is the celebrated thesis that anthr6pos politikon z6on estin. The sense and by analogy,"
phrase appears in NE {I 7, rn97b8--II and IX 9 1 n69b18; see also VII 12, 13. ROT's translation gives: "justice in a special
which is misleading; Rowe's is much better: "just in a way and in virtue
n62a17--19); EE (VII rn, 1242a22--23Ji Politics (I 2, 1253a1--4, 7--8i III 6,
of a certain resemblanc e."
1278b19); and Historia Animalium I 488a9.
6. Konstan 2006: 38, 27--28. 14. On metaphor and resemblanc e, see Top. VI 2, 14oarn--11.
see Top. I 7, rn3a19--23 (on
7. But there is also an important disanalogy: in ethics, there is only one 15. On resemblanc e and identity of species,
water flowing from the same source).
way of being virtuous (NE II 6, 1106a28--33), whereas in politics, as we allow any part
will see, there are several ways of being politically just. 16. See e.g., Republic IV, 443d: "One who is just does not
of himself to do the work of another part or allow the various classes
8. Distributiv e and corrective justices are the two main divisions of special him to meddle with each other" (Grube's translation , revised by
within
justice; "justice" in this context means fairness in arrangeme nts and
Reeve).
procedures. Corrective justice presuppose s by its own name that there
The passage says that happiness is the highest good and that it consists
is some wrongdoin g to be redressed, and it is further subdivided into
in some sort of activity of virtue, viz. the complete exercise of virtue,
voluntary and involuntar y (see NE V 3--4).
and, as it happens, some people can attain it (VII 8, 1328a39: autes),
9. For a discussion about disobedien ce to law, see Rosler, to whom "the
whereas others have little or none of it. It can refer either to happiness
fact that Aristotle equates to dikaion with to nomimon, the lawful,
or to virtue. Reeve takes it to refer to happiness ("some people are able
should not lead us to believe that the requi1eme nts of moral justice, on
to share in happiness"); Kraut leaves it indetermin ate in his transla-
Aristotle's view, may not be stronger than potentially competing claims
tion ("some can share in it"), but, in his commenta ry, takes it to refer
of (positive) law. When Aristotle identifies justice with the lawful, he
to virtue ("here Aristotle implies that there are many who have little or
has a general sense of law(ful) in his mind, i.e. he refers generally to
no capacity for virtue," Kraut 1997: 100). Itake it to refer to virtue; some
moral rules, habits, convention s, and practices" (Rosler 2005: 135).
221
220 MARCO ZINGANO
Natural, ethical, and political justice

evidence for this reading is that the phrase "complete exercise of virtue" 23. Conventional justice translates to nomikon, also referred to as nomoi,
kata nomon (in accordance with the traditional contrast between nature
is used to refer to justice in V l, l l29b3 l, and it is the different percep-
and convention, phusis and nomos), sunthekei or kata suntheken (by
tions of justice that are the cause of different constitutions. Some people
agreement). Most of the time, it refers to written laws, but it may also
have lives "inimical to virtue" (VII 8, l 32 8b40 ), such as vulgar craftsmen
include unwritten practices and habits, but such that they have a deter-
or tradesmen, and this fact has a huge impact on politics. Nevertheless,
minate or fixed expression: Rhet. I 13, l373b4-6; Pol. VI 5, 13 r9b40-
if one takes the pronoun to refer to happiness, the outcome will be the
same: virtue is the proper cause of happiness and is closely connected 2oar.
This corresponds to natural2 in Miller's terminology. In contrast,
to it (as in VII 8, l329a22-23). One can miss a happy life because of
natural, is formulated by him couched in terms of rights as: "a
lack of external goods, or bad fortune, but this will not brutally inter-
natural, right is based on natural justice." According to him, "Aris-
fere with one's political choices; what instead has an impact on them is
totle has a theory of natural, - but not natural2 - rights." To Miller,
the presence, or absence, of virtue, the proper cause of happiness. What
"modern theories of natural 2 rights typically treat rights as universal
is important to note here is that people have different practices or real-
and inhering in human beings as such apart from any social or political
izations of virtue, although we all have the same capacity to become
relations. Natural, rights have no such implications" (Miller 1995: 88).
virtuous: the contrast lies between dunamis and energeia; the former is
Aristotle distinguishes between two cases: (a) it is indifferent, in the
equal for all of us, but not the latter. I translated tous men endechesthai
beginning, for instance, whether we sacrifice two sheep or a goat to the
metechein autes tous de mikron e meden as "some people manage to
gods, but it is not indifferent whether we sacrifice something to the gods
get a share in virtue, whereas others do so only to a small degree or not
or not at all; and (b) it is indifferent whether there is or not such enact-
at all" in order to underline this contrast.
mentI as in the case of a sacrifice for Brasidas (a city would be pious even
l 8. The passage highlights the fact the all three cases must evolve naturally
if no sacrifice is ever made for him). Case (b) is assimilated to decrees,
(pephuke; for kingship: 1288a8; aristocracy: aro; polity: a13), and not by
and Aristotle refers to (b) in general as "decree-like enactments" (NEV
external imposition.
7 1 rr34b25). But it is not true that we would be indifferent to (a) "were
19. Kings are a law to themselves: see III 13, 12813-14; III 17, 1288a3.
it not for a prior agreement" (Yack 1990: 220): there is an intrinsic value
This is likely to be reminiscent of Plato's Statesman.
in sacrificing to the gods, even though it is not determinate how to do it.
20. Because kingship is too rare; nonetheless, aristocracies also "either fall
A doctor might determine non-arbitrarily that pregnant women should
outside the reach of most poleis or border on so-called polities" (IV rr,
exercise but whether that exercise should be a daily walk to a designa-
l295a32-34).
ted tem~le or something else is an open question (VII 16, l335b12-16).
2r. Representatives of the two positions are, respectively, Newman
1887 and Joachim 1951, from whom I borrow the formulations. I exam- 26. For, he says, among gods there is presumably no change at all (NEV 6,
ine the topic in terms of "natural justice," instead of "natural rights," l l34b28-29).
which, however, sounds more palatable to modern ears. Recently, 27. Adopting Bywater's punctuation (NEV 7, l l34b32: eiper amph6 kineta
homoios) and not Susemihl's (eiper amph6 kineta, homoi6s delon).
Miller (1995) strongly argued for introducing the notion of "rights" in
Bywater's text can mean that (i) both are equally changeable (ROT's
order to correctly interpret Aristotle's political philosophy, but some
reading) or (ii) "both sorts alike are changeable" (Rowe's). But (i) is false,
doubts, to my mind, still remain. For a more cautious position, see
and it is this falsity that probably led Susemihl to change punctuation.
Kraut, to whom "a modern right carves out a zone in which one is
Another way to avert (i) is to add a question mark (eiper amph6 kineta
relieved from the task of having to contribute to the common good"
homoiosn, a solution already proposed by Grosseteste (si ambo mobilia
(Kraut 1996: 763) and such an idea is absent from Aristotle's political
philosophy. See also Cooper 1996. similitern, and adopted by Joachim and Gauthier.
22. In the Magna Moralia, on the contrary, political justice is equated with 28. The right hand is by nature stronger than the left hand, according to
Aristotle, and remains so, even though one can become ambidextrous.
conventional justice, and opposed to natural justice (I lr95a7-8). This
He is reacting to Plato, who calls it a "prejudice" to think that the right
should make any reader wary of importing readings from the MM into
hand is naturally stronger, and consequently proposes to adapt educa-
the doctrine on natural justice present in the Ethics, and can also be
taken as one (more) sign of MM's inauthenticity. tion and training to both hands (Laws VII, 794d-95d).
222 MARCO ZINGANO

29. The phrase is ta me phusika all' anthropina dikaia (V 7, II35a3-4).


This is surprising: what is not natwal is what is conventional, but why
to refer to it as what is human? It cannot be in contrast with what is
divine, for we are within political justice, including natural justice. I see
two possibilities: either (i) ta antbropina refers to actual enactments,
based on real experience, in contrast with idealized conditions (as in
the constitution "of our prayers"); or (ii) ta anthropina highlights the
fact that we are now dealing with practical matters, and no more with
theoretical ones, as in the case of the right hand, mentioned in II 34b34.
Option (ii) looks more plausible in context.
30. Pantachou means that, taking the constitutions collectively, there is
always one, kingship, which is the best. Aubenque (1980) once took it
in a distributive sense, meaning that, in each case, there is one constitu-
tion that is the best (such as polity, for a ruling multitude, and aristoc-
racy, when a few rule). He later retracted this, but French literature is
still influenced by the distributive reading (for instance, Pellegrin 1990:
39).
31. For a different direction, namely, a biological perspective on natural jus-
tice, see Miller 1991.
32. The verb manteuesthai, "to divine," can be read in two ways. In a posi-
tive sense, it would mean that everyone has some correct pre-notion of
universal justice, in keeping with Aristotelian optimism according to
which everyone has a share in truth (EE I 6, 1216b30-35). For this pos-
itive reading, see Destree 2000: 233. On the negative reading, however,
people do have some rough idea of universal justice, but this vague idea
is to be altered and corrected in the direction explored by NE V. Yet,
due to its pervasiveness, it can be quite helpful in rhetoric precisely as
vaguely assumed. So the complete passage is this: "Common law is the
law of nature. For there really is, as everyone to some extent divines, a
natural justice and injustice that is common to all, even to those who
have no association or covenant with each other" (Rhet. I 13, 1373b6-
9)- a common belief Aristotle will correct and elucidate in his Politics
and Ethics.
33. Yack 1990; Brunschwig 1996.
34. See Irwin 2007: para. 129.

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