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  Aristotle and Theories of JusticeAuthor(s): Delba WinthropSource: The American Political Science Review, Vol. 72, No. 4 (Dec., 1978), pp. 1201-1216Published by: American Political Science AssociationStable URL: Accessed: 19/10/2009 21:40 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at JSTOR's Terms and Conditions of Use provides, in part, that unlessyou have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and youmay use content in the JSTOR archive only for your personal, non-commercial use.Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact  American Political Science Association  is collaborating with JSTOR to digitize, preserve and extend access to The American Political Science Review.  Aristotle and Theories f Justice* DELBA WINTHROP University of Virginia Today it is all the rage for political theorists and even philosophers to have theories of justice. Looking back on the history of political thought, we cannot help but notice that not all previous philosophers have taken justice and theories of justice so seriously. Among those who did not was Aristotle. To be sure, he had a theory of justice, and from this fact we might infer that he thought it necessary to have one. But I shall presently argue, primarily from Aristotle's treatment of the problem in the Nicomachean Ethics, that Aristotle thought all theories of justice, including his own, to be unsatisfactory. In his opinion, a politics that understands its highest purpose as justice and a political science that attempts to comprehend all political phenomena within a theory of justice are practically and theoretically unsound. Today it is all the rage for political theorists and even philosophers to have and to expound theories of justice.1 Looking back on the history of political thought, we cannot help noticing that not all philosophers have taken justice and theories of justice so seriously. Among those who did not was Aristotle. To be sure, he had a theory of justice, and from this fact we might infer that he thought it necessary to have one. But the argument that I shall make is that Aristotle thought all theories of justice, including his own, to be insufficient.2 In his 1The rage reached epidemic proportions after the publication of Rawls (1971) and Nozick (1974). A comprehensive bibliography of the literature spawned by Rawls' A Theory of Justice can be found in Political Theory (Nov., 1977). 2As will become obvious, in presenting my argu- ment I have not made frequent reference to the secondary literature on Aristotle. My argument is uncommon not so much because it is opposed in the literature, but because analyses of Aristotle's treat- ment of justice as a whole are generally lacking. Many of the commentaries are very helpful in clarifying details. But for the most part, they fail to do the two things I have attempted to do here: to suggest the possible implications of Aristotle's explicit statements and to treat them as if they were components of a coherent, if dialectical, argument with a point and a purpose. My attempt has led me to state a somewhat surprising and offensive conclusion, at which the very decent commentators might have balked in any case. The standard modem works on the Ethics or on Book 5 in particular are Burnet (1900), Gauthier-Jolif (1958-59), Grant (1885), Hamburger (1965), Hardie (1968), Jackson (1973), Joachim (1951), Ritchie (1894), Ross (1923), Stewart (1973), Thomas Aquinas (1964), Vinogradoff (1922). Notable works not sub- ject to the above criticism are Faulkner (1972), Jaffa (1952), and Ritchie (1894). Cropsey's (1977) fine essay on justice and friendship came to my attention after this article was completed. Gauthier-Jolif opinion, a politics that understands its highest purpose as justice and a political science that attempts to comprehend all political phe- nomena within a theory of justice are practical- ly and theoretically unsound. Aristotle's theory of justice is perhaps best understood by understanding its place in the Nicomachean Ethics.3 The Ethics as a whole is meant to be a comprehensive investigation of (1958-59), and to a lesser extent Hardie (1968), are also useful. 31n my references to Aristotle's works, all Bekker numbers cited, unless otherwise specified, refer to the Nicomachean Ethics. Justice is also treated in the Eudemian Ethics and the Magna Moralia as well as in the Politics, but in the Nicomachean Ethics it is treated thematically and at length. More important for present purposes, the structure of the Ethics as a whole, and therefore of the place of the theory of justice in Aristotle's moral and political philosophy as a whole, is perhaps easiest to grasp. In making my argument, I necessarily assume that the Nicomachean Ethics was written by Aristotle and that the text we have is at least roughly in the form intended by the author. Speculations about the authorship of the Nicomachean Ethics and its integrity are reviewed, for example, in Grant (1885, Vol. 1, pp. 1-171), Hamburger (1965, pp. 1-6), and Jackson (1973, pp. xxii-xxxii). In any case, I am fairly confident that nothing in the Politics or elsewhere is fundamentally inconsistent with the teaching of the Nicomachean Ethics. Con- sider, for example, Politics, 1323a 27-34. For reasons that will become clear later, it is significant to note that in the Politics, too, Aris'otle conceives of friendship as an improvement upon justice and identi- fies aristocracy most closely with friendship. He rarely, if ever, speaks of the justice, as distinguished from the goodness of aristocracy. For the superiority of friendship to justice generally, cf. 1262b 7-8, 1263b 29-37, 1287b 30-35, 1295b 23-24. 1201  1202 The American Political Science Review Vol. 72 the end of human action, which is the human good, or happiness (1094a 1-3, 1094a 18-26, 1097b 20-21, 1179a 33-b 4). Since the science which has this study as its object is political science, the Ethics is a sort of political science (1094a 24-29, 1094b 10-11). The premise of the Ethics is that the core of happiness is the practice of virtue (1098a 16-18). Virtue is divided into virtue of char- acter, or moral virtue, (ethike) and intellectual virtue (dianoetike) (1 103a 3-7). Or sometimes Aristotle says that the subject matter of politi- cal science is the noble and the just (1 094b 14-16). According to this formulation, what we call moral virtue is treated in terms of what seem to be its principal components, nobility and justice. In the discussion of the particular moral virtues in Books 3-5, it becomes clear that both the pride, or greatness of soul, characteristic of nobility and justice are com- prehensive virtues. That the noble and the just are not components of a unified morality, that they might at times be incompatible, or that they point to and reflect opposed principles of morality is not suggested in Book 1, because the working hypothesis is that the good of the city, and therefore the just, and the perfection of the individual, and therefore the noble, are roughly the same and effected by the same means.4 Justice is the last of the virtues of character which Aristotle treats, and its treatment is followed by that of the intellectual virtues. This placement reflects the fact that it forms a bridge of sorts between them, not only because justice is shown to require discriminating judg- ment as well as good character, but because the analysis reveals that the ground of the moral virtues is problematic. Justice is the only virtue to which an entire book of the Ethics is devoted, as if to emphasize its importance. Only to friendship, which is the unitary subject of Books 8 and 9, is a larger solid block of argumentation devoted. Because justice and friendship are said to be concerned with the same things (1 11Sa 22-24, 1159b 25-26), we must consider at some length friendship as well as justice. The demand for a theory of justice arises from political practice (1129a 6-10). The theory formulated to meet that demand may seem more or less adequate in practice, but as I shall argue, it is not adequate to satisfy a demand for knowledge of politics. Consequent- ly, if it is adequate in practice, it must be so for 41094b 7-10. This assumption s questioned at 1130b 26-29 and at 1180b 23-25. the wrong reasons. In what follows, I shall comment on how the theory of justice emerges in Book 5 and what that theory is. I shall then show how in Book 5 Aristotle raises objections to his own theory, or at least forces his reader to raise them, and how he indicates that these objections can be met in the context of a teaching on friendship, not justice. To antici- pate, Aristotle's central objections to the theo- ry of justice are of two sorts: First, it seems that a theory, like any art or science, must embody knowledge of universals to merit the name science, but the universals of politics are not true universals in the sense that they fit all cases, and in politics the particulars, especially the particular exceptions to the general rule, may be worthy of more serious consideration than the universals. Second, if justice as the practice of virtue toward others requires a disregarding of virtues conducive to one's own good, to insist upon this disregard may be not only to ask the impossible of human beings, but to ask the undesirable as well. Consequently, we could not consistently defend as correct and beneficial a political science which is nothing more than a prescription for justice. Aristotle begins his inquiry into justice as he begins all such inquiries, with what is first for us (1095a 30-b 4, 1129a 5-6), hence with the kind of questions someone serious about moral- ity and politics would ask. What we commonly mean by justice is that it is a habit of some sort which issues in actions that we could call just and which assures that these actions are under- taken with the intention of their being just (11 29a 6-10). The minimal demands for a theory of justice adequate to common opinions are, then, that it enable us, first, to distinguish just from unjust actions and, second, to establish a connection between consequences and intentions. To meet these demands we would need a definition of the just and a plausible explanation of human behavior. As Aristotle remarks (1 129b 17-23), as we might know good condition of body and its cause from knowing bodies in good condition, so we must begin by assuming that we have an adequate perception of just actions, from which we can make inferences about the just and justice. More precisely, both his contemporaries and we now are prone to attribute injustice to those who act outside the law and to those who take more than their fair share.5 Now if we call 5To identify the just and the legal may strike the contemporary reader as passe, if not incorrect, but first of all, Aristotle speaks here in the name of  1978 Aristotle and Theories of Justice 1203 what is illegal unjust, must we not be supposing that what is legal is just? And similarly, if we say that in taking too much, someone is unjust, must we not be supposing that it is desirable and possible to determine the right amount, or the equal? The just, then, appears to have two meanings, the legal and the equal (1129a ,32_34).6 In attempting to understand why Aristotle reports the opinion that the legal is or intends to be the just, it is perhaps useful for us to think not of laws like the hedges of Hobbes and Locke (Hobbes, 1968, p. 388; Locke, 1960, p. 348), but of religious and customary laws, written and unwritten, which correspond to Aristotle's dictum, so strange to ears of liberals, that what the laws do not command, they forbid (1 138a 7). For Aristotle, the legitimacy of law and the propriety of unreflective obedi- ence to laws are grounded in the presumption that the intention of law is to secure the happiness of the political community and its parts and that the law of a particular communi- ty fulfills the intention more or less well. At the same time, since happiness is said to be a consequence of the practice of virtue, we can common opinion, and he himself later questions the identification. Even we ought not to disregard the opinion of our own usually silent majority on this issue. Furthermore, many of those who purport to deny that the legal is the just do admit that dis- obedience is the exception rather than the rule, while seeking a principle to justify their deviation. And, in fact, since that justification often assumes the form of an appeal to a higher law or universal principles of conscience or reason, they concede that the attempt to identify the just with some legal order is not unreasonable. While less willing to attack the law publicly, Aristotle is less convinced than many of us that there are universal principles of justice in the name of which to attack laws that appear to deviate from the just. 6As Gauthier and Jolif (1958-59) point out, Aristotle's method of inquiry is not merely to begin from common opinions, but to make language as precise as possible (Vol. 2, Pt. 1, p. 330). They correctly note that Aristotle belabors the distinction between the meanings of the just as the legal and the equal, as if to say that in common opinion the two were used equivocally and not sufficiently dis- tinguished (p. 336). This common tendency to identi- fy the legal and the equal they would trace to the democratic context in which Aristotle wrote (pp. 325-27), although Aristotle himself does not do so. Rather he suggests that all law necessarily tends to be egalitarian. Consequently, his later insistence on the formulation of the just as equal shares to equal and unequal to unequals serves to reveal an inevitable tension in the notion of justice. say that law intends to prescribe the practice of virtue, or of all the virtues. If the legal is the just, then justice as law-abidingness must be the whole of virtue. But more precisely, justice is said to be the practice of complete virtue toward others, and from this we might infer that justice is a concern for the good of others. Aristotle concludes this elaboration with the comment that justice as law-abidingness is thet whole of virtue, but that it differs essentially from virtue. Only at the end of Book 5 does the reader fully understand this, but we might remark now that virtue, having been introduced as the condition of happiness, reflects a primary concern for one's own good, as distinguished from that of others. No wonder the proverbial wisdom finds justice more amazing than the evening or the morning star ( 1129b 11-1130a 13). Aristotle considers first not justice as virtue as a whole, or law-abidingness, but the justice which he insists is a part of virtue (as courage is a part of virtue). This partial justice is justice in the sense of taking one's fair or equal share of good and bad things. Upon reflection, we can see how the first consideration presupposes this examination. The presumption that law secures the happiness of the political community and its parts is ultimately a presumption that the law was made by some one or many who thought about what is good for the whole and its parts and distributed whatever good the political community can supply in accordance with this determination. Our respect for the law leads us to suppose that some legislator has employed the principle of partial justice on behalf of future citizens; our suspicion that it may not have been employed properly-that we live in an imperfectly just regime-leads us to presume to apply the principle ourselves. Partial justice should give us a standard for law, although to think about this is potentially subversive of law. In the discussion of partial justice that follows, Aristotle makes us assume the perspective of a legislator, or at least of a judge. But we, as distinguished from. the hy- pothetical legislator, already live in a regime toward whose probable injustice we are likely to have some animus. For this reason, our judgments might reflect partisan passions and even anger. We might be tempted to criticize from the perspective of what is most conducive to our own benefit. In what follows, Aristotle presents what is for him an unusually abstract account of partial justice, perhaps to show us what the perspective of an impartial legislator would have to be. I believe that he does so primarily to teach us the habit of justice: One who wishes to be just must first learn to calM
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