You are on page 1of 6

A Symposium on Natural Right and Natural Law*

Classical Natural Right


Joseph E. Goldberg

ALTHOUGH THE Equal Rights Amendment failed to obtain the requisite number of state ratifications for adoption to the Constitution, the fundamental issue posed by the amendment will continue to be debated. Stated simply, the issue concerns what considerations should sexual differences now be accorded in political life? Does the fact that a person is a man or a woman determine what he or she can do, and thus allow a political community to state what they may do? What is by nature the political significance of the two sexes? A denial that differences exist between the sexes contradicts the most obvious facts of life, but what is to be made politically of these obvious facts is far more controversial. To pose the question of the Equal Rights Amendment in the above manner returns us to the classical question of what is by nature right or just, l e . , the quest for what is right independent of its enactment into law by a political community. The natural right teaching of classical political philosophy assumes that there is a knowable standard independent of conThe four papers that follow were delivered at a meeting of the Middle Atlantic States Political Science Association held in Washington, D. C., January 1982. The symposium was chaired by Professor George W. Carey, Department of Government, Georgetown University, and was entitled Natural Law and Natural Right.

ventional justice which can be used to measure and guide political life. The search for natural justice and right emerged with political philosophy, and is associated initially with Socrates, Plato, and Aristotle. Although t h e classical political philosophers taught that not all men had the natural equipment to become philosophers, they also taught that the understanding obtained through philosophical inquiry was indispensable for leading the highest life. Implicit in this f statement is the denial that all pursuits o man are equal and that only knowledge of the natural hierarchy of desires or wants can provide proper guidance for man. This is, of course, knowledge of what is naturally right for man. In antiquity as well as in contemporary life, the argument has been advanced that the good is the pleasant. The good life is a life dedicated to the pursuit of pleasures. Pleasure is good and pain is harmful. Yet, is it not possible to recognize that certain pleasures are harmful to man while the experience of certain pains is beneficial? Consumption of alcohol and the use of drugs provide momentary pleasure but ultimate harm, while surgical procedures provide momentary pain but ultimate good for the patient. Clearly, one must have knowledge of what pleasures are good and what are bad. This returns the

222

Spring/Summer 1984

thoughtful man to the question of natural right. The intention of the following discussion is to provide an introduction to the classical natural right tradition.* That tradition has become obfuscated to the modern student of politics in part because the assumptions of classical political philosophy were challenged by the modern political philosophers of the sixteenth and seventeenth centuries, and in part because the rise of modern social science, a movement prepared by both modern political philosophy and modern natural science, called into question the possibility of achieving the objectives of the ancients. The enterprise of political philosophy is held to be either unscientific in that it does not conform to the requirements of a value-free social science (the contention of positivism) or oblivious of the historical character of human phenomena (the contention of historicism). In the latter criticism objective truth is said not to exist because all truth is relative to its particular setting or time. Both modern positivism and historicism have denied the possibility of political philosophy and the existence of natural right.3 The recovery of the classical natural right teachings has also been impeded by the modern natural rights doctrine. The modern doctrine is associated primarily with the political philosophy of Thomas Hobbes and John Locke. These rights are said to be possessed by all men at birth and are derived from the one original right of self-pre~ervation.~ Natural rights, according to the modern understanding, do not owe their existence to human action, but governments are created, in fact, to secure them for all men. For this reason, the natural rights doctrine emphasizes the rights of men and not their duties or responsibilities. This essay will examine the classical understanding of nature and the way in which the appeal to nature provided the standard by which to measure and guide , political life. The discussion will primarily emphasize the political philosophy of

Plato and Aristotle. Because this essay is intended as an introduction, references to selected scholarly literature will be provided in the notes for those who wish to explore the numerous questions raised by classical political philosophy and the notion of classical natural right.

I
POLITICAL LIFE EXISTED prior to the emergence of political philosophy and the discovery of natural right. For natural right to be discovered, the idea of nature first had to exist. Nature was not known and could not serve as the justification of a particular way of living for prephilosophical man, who understood things in terms of custom or way. The heterogeneity which characterizes political phenomena, the variety of laws and the diversity of practices which are reflected in political life, was understood as a reflection on the numerous customs or ways distinct to a particular people. So too were other nonpolitical phenomena understood as reflecting the customs or ways particular to different things. Dogs and cats, men and women, Jews and Amalekites manifested ways particular to themselve~.~ The diversity of the ways or customs of people required ultimately a justification as to why ones own way was superior to other ways. The pre-philosophical justification rested on ancestral authority. The origin of ones customs is associated with the founders of the ancestral line, and the account of the beginnings of a people known through an oral and/or written inheritance established the absolute superiority of the founders over other humans. They are identified with the gods, and in turn the way of life established by the fathers is identified as a divine way. Pre-philosophical society identified their legal codes as divine in origin, and their justification was rooted in divine authority. Since the origin of the divine codes was not known directly by the existing generation, the authenticity of the account rested

Modern Age

223

on hearsay. As different people exhibited different customs and provided distinct accounts to justify the rightness of their ways, so was there a heterogeneity of accounts of beginnings: the beginnings of a particular people, the beginnings of man, and the beginning of the world. Clearly there were observable differences in these accounts of the first things; and, as stated above, the claim of the rightness of one over the other rested on the authority of the community. Unless that authority was challenged or doubted, there could not emerge a quest to discover the true account. The authoritative nature of prephilosophic society precluded t h e emergence of philosophy. For philosophy to arise and nature to be discovered, authority had to be challenged. The emergence of the idea of natural right presupposes, therefore, the doubt of authority.6 The rejection of the pre-philosophical accounts constituted a rejection of hearsay. Hearsay was replaced by a desire to know things either through observation and/or human reason. Relying upon human observation, the totality of observable phenomena leant itself into a division between those things that are of human origin and those things of nonhuman origin. We recognize that man is not the creator of all things. Those things which owe their existence to human agency are artificial. They come into being as a consequence of human intention and they could be otherwise if their human creator so conceived. Artificial things are as they are because of human intention. Since the origin of artificial things can be traced to human origin, it is clear that those things which come into being through human contrivance cannot be the first things. In contrast to the artificial is the natural. Nature is taken to mean many things, but primarily it means the things, or the principle of the things, that do not owe their being to human a g e n ~ y . Unlike ~ artifacts which owe their being to human agency, natural things have no apparent force or agency visible as their cause. So that when we describe something as

natural, w e mean There is only necessity-which, as the alternative to intelligence, is not an explanation but a concession that we find the natural phenomena in principle unintelligible.* The attempt to understand the principles of all things and thus acquire knowledge of the beginnings o f these natural phenomena is the philosophical enterprise. Philosophy assumes not only the exf first things, but that the first istence o things may possibly be known through human reason. The discovery of nature introduced a distinction between things that were natural (physis) and things that were conventional norn no^).^ A new question concerning political phenomena could now be introduced: Is political life and its standards o f right and wrong, natural or conventional? The preSocratics believed that political life belonged to the realm of the conventional. Political right owed its origin to human agency through human agreement. Since different societies advocated different notions of justice and justice within a society was identified with the laws, agreed upon by men, observation of political life provided strong support to the conventionalist position.

II
founder of political philosophy.lO According to this tradition, Socrates called philosophy down from the heavens. In particular, Socrates is said to have examined human things by inquiring into their distinctive character. According to Xenophon, Socrates would hold discourse, from time to time, on what concerned mankind, considering what was pious, what impious, what was becoming, what unbecoming; what was just, what unjust. . . .I1 The recognition of human things, however, is dependent upon the recognition o f nonhuman things whether they are of natural or divine origin. To begin with the examination of human things, as Socrates did, required some understanding o f the totality of f the things or some understanding o
ClCERO IDENTIFIES SOCRATES as the

224

Spring/Surnmer 1984

whole of which the human things are a part. Man finds himself beneath the heavens and above the earth. This condition is permanent and is fundamentally an enigma. Furthermore, since man as a corporeal and thinking being is of nature in the same way that a tree, or a dog, or a planet is of nature, the condition of man is derivative from the whole as are all natural things. But our knowledge of this derivation as well as the exact character of the whole itself is o f a different order from that knowledge which we possess of human things. We are limited to the examination of the whole that is visible to us, and we are required by necessity to discover the true whole aware that we are restricted in its examination. This awareness that we pursue the truth about the whole without ever having seen the visible whole in its e n t i r e t y is what Socrates called knowledge of ignorance.12 We know that which we do not know. The whole for Plato consists of parts which are heterogeneous. Its heterogeneity fundamentally is not rooted in the sensible qualities o f the parts, but rather the differences are to be understood in terms of the eidos, the form or shape of a thing. Things, whether man or a beast, are observed, but it is not the observation of the sensible qualities which provides knowledge of the essential forms of the parts. The eidos is grasped noetically, i.e., the eidos is apprehended by the intel1e~t.l~ For this reason, the Platonic Socrates begins his examination of the nature of things not with the observation of their sensible qualities but with opinions about their natures. The examination of clashing speeches about things, dialectics, is the means of transcending opinion and replacing it with knowledge. To be certain, there is no assurance that such inquiry will obtain the truth or knowledge of things. Despite the fact that human things cannot b e fully understood without understanding their relationship to nonhuman things, man does live within a particular accessible whole. It is the whole between the earth and the heavens; and

though it ultimately is part of the entirety of things, the human things can be understood in terms of mans eidos. Thus, Socrates examined human things with this awareness of the human situation. Political philosophy also begins with an examination -of opinions about what is right or just for man.14 The classical political philosophers were as aware as the pre-Socratics that different political communities held vastly different opinions about the nature of man and what is proper for a good life. Unlike the conventionalists who appeared to identify the good with the pleasant,15 the Socratics believed that the good is more fundamental than the pleasant and that knowledge of the good provides guidance as to whether or not certain pleasures should be satisfied. Guidance can only be provided, of course, if one knows what is and what is not good for man. This knowledge, in turn, is dependent upon knowledge of mans eidos. Only if one pursues knowledge o f the nature of man can one know whether or not something is in accord with that nature or violates that nature. Stated simply, only if we possess knowledge of what is by nature right for man can we determine whether a want or a desire should be satisfied. Classical natural right teaching therefore perceives a natural hierarchy of human objectives. For classical political philosophy, The good life is the perfection of mans nature. It is the life according to nature.16 Mans soul must be properly ordered in order to achieve its excellence.
111

CLASSICAL POLITICAL PHILOSOPHY believed that the perfection of man could rarely occur in isolation from other men. Political life is required for the pursuit o f human excellence. As Aristotle observed: The man who is isolated-who is unable to share because he is already selfsufficient-is no part o f the polis, and must therefore be either a beast or a god (Politics 1253a). A few lines later Aristotle adds, Man, when perfected, is the best of

Modern Age

225

animals: but if he be isolated from law and justice is the worst of all. Between mans godly status and mans beastly status is the realm of politics or civilized life, and within this conventional order are to be found a variety of understandings of justice-some superior and 6ome inferior. But even the inferior kind of justice ap pears superior to no justice. Without political life, justice can only be imperfect if it exists at all. Self-sufficiency for Aristotle does not refer to the simple provisions necessary to sustain life. Rather, a self-sufficient man is one who has knowledge of the desires natural to man and their natural hierarchy, and he can fulfill those desires according to their natural importance. Aristotle provides a discussion of mans virtues in the Nicomachean Ethics in Books 111 to V. An examination of these books shows that there is an order according to which some of the virtues are lower in rank than others. All of the virtues, Aristotle observes, are commanded by the law (1129b14). The conduct of a brave man not to desert his post, the conduct of a temperate man not to commit adultery, and the conduct of a gentleman not to speak ill are used as examples to demonstrate how certain actions are commanded or forbidden. But Aristotle adds a critical qualification. The law can command rightly or poorly. Therefore, proper legislation would depend upon a proper understanding of the virtues. Furthermore, if the law commands rightly or poorly, there must exist a standard of rightness independent of the law which serves as the standard by which to measure law. The legal is not simply to be equated with the just. Aristotle argues in the Nicomachean Ethics , Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not. A rule is conventional that in the first instance may be settled in one way or the other

indifferently, though having once been settled it is not indifferent (1 134b24).

A similar statement is to be found in Aristotles Rhetoric (1373b ff.) where he says that the universal law is the law according to nature, so whereas the one kind of law is man-made, there is a law which is not man-made. Aristotle adds that the universal law is divined by all men. Natural right for Aristotle owes its strength, unlike positive law, to the fact that it is not of human creation. Natural right for Aristotle is that right which must be recognized by any political society if it is to last and which for this reason is everywhere in force.17 Near the end of Book 111 of the Politics, Aristotle speaks of a kind of kingship ruled by a man whose virtues are so outstanding as to make him naturally as a god among men (1284a4-15). Such men are themselves law because it would be ridiculous to try and legislate for them. Thus, this best regime is without positive law. Understood in light of the arguments in the Nicomachean Ethics and the Politics, natural right helps explicate the flooring and the ceiling, the minimum condition and the maximum possibility of political society. . . .I8 These extremes of political life are natural. To rise above the ceiling of political life man must be as a god, and to sink beneath the flooring of political life man must be as a beast. Conventional political life consists of a variety of regimes each of which reflects its particular understanding of justice through its laws. These ways of life are informed by dominant principles which in turn reflect the principal characteristic@) of the ruling element. A democratic form of government will have democratic laws reflecting a democratic understanding of what is just, and an oligarchic form of government will have oligarchic laws reflecting an oligarchical understanding of the just. By examining the principles of justice in the regime, i.e.,what the regime understands as the proper life for man, it is possible to order regimes in terms of their

226

Spring/Summer 1984

soundness: Aristotle observes in the Politics that it is clear that the laws in conformity with the correct constitutions must necessarily be just and those in conformity with the divergent forms of constitution unjust (1282b6). The question of the rightness of the laws cannot be separated from the question of the rightness of the regimes, and, therefore, Aristotles inquiry returns to the discovery of what is by nature the proper regime for man. For Artistotle as well as Plato the legal does not constitute the fundamental political expression.

I V
POLITICAL LIFE for the ancients was understood to exist not for the sake of

mere life, but was directed toward human perfection or virtue. For man this means that the good life is that which fulfills mans natural inclinations in their proper order to the highest degree possible. As discussed in earlier sections of this article, the perfection of mans nature, according to classical political philosophy, required that men live together within political life. Since men differ in their understanding of what is human perfection, the objectives or ends of political life which reflect their understanding will also differ. These differences constitute the fundamental problem for political life since they invite serious men to reflect upon the nature of the good. The pursuit of natural right and the importance of political philosophy for statemanship arises from reflection upon the human situation as we confront it.

IHarry V. Jaffa, Aristotle, in History of Political Philosophy, 2nd ed., ed. Leo Strauss and Joseph Cropsey (Chicago, 111.. 1972), p. 75. 2The modern attempt to recover an understanding of the classical natural right tradition owes its greatest debt to the f Leo Strauss. This introduction to scholarship o classical natural right has benefited greatly from his work. Although the subject of natural right is treated in many o f his works, his major treatment of its origins, formulation by the ancients, and critique by modern political philosophers is to be found in Natural Right and History (Chicago, Ill., 1953). A recently published article, Richard Kennington. Strausss Natural Right and History, Review of Metaphysics, 35 (September 1981). 57-86, stands as one of the most important and helpful works in f Natural Right and understanding the structure o History as well as continuing the recovery of the tradition. See also Strausss writings: Natural Law, International Encyclopedia of the Social Sciences, Vol. 1 1 (New York, 1968), 80-85. 3See Strauss, Natural Right and History, pp. 1-80; Kennington, pp. 63-70; and Leo Strauss, What Is Political Philosophy? in What Is Political Philosophy? and

Other Studies (New York, 1959), pp. 18-27. For a discussion of modern natural rights see Harry V. Jaffa, Natural Rights, International Encyclopedia of the Social Sciences, vol. 1 1 (New York, 1968), 85-89; Strauss, Natural Right and History, pp. 165-323; and Kennington, pp. 80-86. SStrauss, Natural Right and History, pp. 82 ff.; and Kennington, pp. 71-72. 6Strauss, Natural Right and History, p. 84. 7Joseph Cropsey, Political Life and a Natural Order, Journal of Politics, 23 (February 1961), 47. Vbid., p. 48. gStrauss, Natural Right and History, p. 90; and Kennington, pp. 73-74. 10Cicero,Tusculan Disputations v. 10; See Leo Strauss, The City and Man (Chicago, Ill., 1964). p. 13. IlXenophon, Memorabilia 1.1.16; and Strauss, Natural Right and History3p. 13. 1ZPlat0, Gorgias 509a; See also Kennington, pp. 75-76; and Jacob Klein, flatos Trilogy (Chicago, Ill., and London, 1977), pp. 137 ff. I3Strauss,Natural Right and History, p. 123. Ibid., p. 124. 151bid.,p. 126. Vbid., p. 127. 17Aristotle,Nicomachean Ethics 1134b20 ff.; and see Strauss, Natural Law, p. 81; and Harry V. Jaffa, Thomism and Aristotelianism (Chicago, Ill., 1952). pp. 30 ff. *Aristotle, Politics 128a4-15, 1288a15-29.

Modern Age

22 7

You might also like