Abstract
Focusing in on Aristotle’s Politics and its treatment of the question the rule of law contra the rule of rulers simply, this paper hopes to return to the original teaching of Aristotle’s text and not that of the received interpretations that so powerfully shape our understanding of the question of law in the Politics. It will attempt to show that the fundamental teaching of Aristotle’s political science is the supremacy of the role of the politeia and given this fact, law and the rule of law cannot be for Aristotle something that has supreme authority over the character and shape of any given political community. Thus the paper looks at how the politeia frames both the very concept of law and even the very understanding of the rule of law.
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Notes
- 1.
All Aristotle quotations in this chapter are generally from Carnes Lord (1987) with slight modifications based on differences in reading the Greek text of Aristotle 1957, edited by Ross.
- 2.
See Swazo (1991, 405–420) and Strauss (1978, 47–48). Also it is important to recall the connection between Aristotle’s teleological treatment of the political community and his biology. Aristotle uses his biological teleology in his understanding of human political activity, see Arnhart (1990, 1994), Nussbaum (1994, 477–488) and Masters (1989). Both agree with Arnhart’s claim regarding the biological take on Aristotle’s use of teleology. Given this, one should refer to what role eidos plays in Aristotle’s biology. For the best treatment of the role of eidos in Aristotle’s biology, see Preus (1979).
- 3.
See Quinn (1990, 170–186) on the relation between the parts to the whole in Politics 3. Also, Saxonhouse 1992, 215–218 discusses how the parts relate to the whole. She argues that the parts are only meaningful in relation to the whole. The example she uses is that of the hand. When it is separated from the whole body, it is no longer truly a hand. The nature of the hand is seen in its functional relation to the whole.
- 4.
As to the question of the mixed-regime, I have argued in Bates (2003, 102–121), that, given the logical character of Aristotle’s teaching of the regime, the idea of a specific type of regime named ‘regime’ that is different from other regimes by its being a mixture of two different regime principles (views of justice) is rather unlikely and problematic. Now I hold that it is not possible for a regime to hold two usually logically opposite views of the just without having a kind of schizophrenic regime order. Also if we look carefully at Aristotle’s teaching about the nature of regimes in Politics 4 we see that all regimes are in fact not pure but a mixture. Thus it the crux of my argument that the traditional view of polity as the mix-regime and a regime of the rule of law versus the rule of the people is one incorrectly attributed to Aristotle. For the traditional view see Mulgan (1977), Finley (1985), Johnson (1988), Stoker and Langtry (1986), and Bluhm (1962). Whereas Blythe (1992) and Fritz (1954) present alternative origins to the concept of the mixed regime or mixed constitution, found either in the political thought of the Middle Ages for the former and Polybius’ teaching of the political regime of Rome for the latter. Also see Cherry (2009) and Ewbank (2005) who are responding to aspects of what I argued in Bates (2003) on the issue.
- 5.
- 6.
Looking at the relative character of law to the given regime will let us see the problem of the differing character of the citizen among regimes. Since law will shape the character of the citizen and different regimes will have different laws (and laws that are at odds with what other regimes hold to be good or just) different regimes will lead to a different understanding of what is the good citizen. Thus a good citizen, who is one who not only obeys the law but is so shaped in his/her character that the laws are perfectly reflected in it, will differ from regime to regime, and a good citizen in one regime would not be a good citizen in another (the good Nazi may be a good citizen in 1930s Germany, but he would not be a good citizen in 2012 America or 2012 Germany).
- 7.
See Strauss (1953) for a presentation of a teaching about what is just by nature in the history of political thought from the Ancients to the Moderns. The latter hold that the doctrine of natural rights is merely the modern variety of natural right. What is meant by natural right here is not a teaching about natural rights but about what is just or correct (right) by nature. Often there is an assumption that what is meant by natural right is akin to what Catholic political thinkers (especially St. Thomas) teach about Natural Law, but for the Greeks the very concept of natural law is a contradiction in terms in that nature (physis) and law (nomos) are opposites, as the latter concept is a product of human making or human willing, whereas the former is that which simply is, either in terms of the nature of things or the nature of a particular thing.
- 8.
The regime called regime is translated as polity in most translations of Aristotle’s Politics. See my argument about so-called Polity in Bates (2003, 102–121). The point I make there is that the confusion of making a regime type out of the name regime points to the idea that the claim that the rule of the many that is called democracy is not really a defective regime as it is presented in both in Politics 3 and the first two chapters of Politics 4. I suggest that the discussion of so-called polity that happens in 4.7–4.9 is really an overall reflection on the overall nature of the regime itself, or so to speak all regimes per se that have been discussed up to this point. But this argument needs to be developed more than the scope of this paper would permit.
- 9.
The dangers of turning law or the rule of law into a META-political trump is the very point about the nature of liberalism made by critics of liberals such as Carl Schmitt, Antonio Gramsci, Ernesto Laclau, Jacques Derrida, Michel Foucault, Hannah Arendt, Giorgio Agamben, Claude Lefort, Antonio Negri, Paolo Virno, Slavoj Žižek, Alain Badiou, Jacob Taubes, Chantal Mouffe, et al. This is not to say such critics are correct in their stance on the political, but like the ‘broken clock’ have the ability to be none-the-less correct twice a day.
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Bates, C.A. (2013). Law and the Rule of Law and Its Place Relative to Politeia in Aristotle’s Politics. In: Huppes-Cluysenaer, L., Coelho, N. (eds) Aristotle and The Philosophy of Law: Theory, Practice and Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 23. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6031-8_3
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