Abstract: Both Locke and Aristotle suggest that deviations from the rule of law may be necessary, but their primary reasons differ: the former attributes these failures to the constant flux of things, while the latter emphasizes the irreducibility of virtue to law. Yet a careful reading of each shows that they recognize the other’s point and are both suspicious of legalism. Aristotle acts as a guide to why this difference in emphasis concerning extralegal action reveals their deep disagreement regarding the relationship of philosophy and politics.
Prepared for the Political Philosophy Workshop
Brown University, September 21, 2006.
There is something about law that is suggestive of righteousness. The unreflective equation of what is lawful with what is just is not simply characteristic of popular governments, where we might expect the laws to serve the public good. Even a tyrant, where able, will destroy his rivals by lawful means: even a tyrant seeks the appearance of legality. It is as though we expect the law, by virtue of its being law, to somehow be fair. It is by his manipulation of this sentiment that the tyrant reveals its presence in the souls of most men. It may be true that human beings will accept bad arguments in the face of coercion in order to mute that voice which informs them that their asset has been gained more by threats than persuasion, yet even these bad arguments indicate something of the shape good ones are thought to take. There is an unmistakable tendency toward legalism.
As Judith Shklar has pointed out, legalism is not really a doctrine. Rather, it is a disposition. As a disposition, however, it favors certain opinions, certain beliefs, as more intuitively plausible than others. Justice and morality, it comes to seem, are matters of behavior, commanded or forbidden by a complex of rights, duties, and rules. We need not follow Shklare in every aspect of the argument to see that there is something to behold, a tension within common sense that is likely to be reproduced in more reflective analysis, viz. a tension between legalism and the obvious fact that laws can be unjust or prohibit what is necessary. Violations of the law may therefore be justified.
To leave the sphere of the legal, however, is to enter into a realm where the habits and intuitions fostered by law-abidingness are no longer adequate. To obey the law, one need know only one’s place in the regime; to fulfill the ends of the law, one must see and judge the regime and its self-understanding as a whole. Consequently, any account of why deviations from the legal order are justified must be informed by one’s sometimes implicit opinions concerning the regime. To act where the laws are insufficient for the ends of the regime, even to know where these limits of the law are, requires the perspective of a legislator or a founder, of a nomothetēs. The extralegal is important, not because it is the foundation of the legal à la Machiavelli, but because it compels a comprehensive reflection on the obscured premises of one’s regime’s claim to justice.
One of the most revealing chapters of John Locke’s Two Treatises of Governmentaddresses extralegal action, “Of Prerogative.” Similarly, Aristotle’s discussion of absolute kingship (pambasileia) in Book III of the Politics provides a window into why the best practical regime can never be the best regime, simply. Aristotle’s analysis also highlights the importance of what Locke encourages us to accept as given or incontestably self-evident. Locke and Aristotle agree on all the key facts — except, that is, on which facts are most important to emphasize. They disagree, not on man’s situation in the world, but on the right way to act within that situation. Their distinctive treatments of extralegal action serve to deepen our understanding of their competing approaches to political theory, and thereby of politics itself. Each is a critique of legalism, yet each suggests subtly different conclusions as following from that critique.
The Lockean commonwealth exists for the sake of its subjects’ prosperous enjoyment of their lives. Locke therefore focuses more on threats to that comfort and security, and so fosters a sense of discomfort and insecurity. (This is the great irony of the Two Treatises) It is the “mutual Preservation of their Lives, Liberties and Estates” that causes men to accept the legitimacy of government (2nd Tr., §123),1 even though there is a natural “love, and want of Society” that also brings them together (cf. 2nd Tr., §101). Prerogative is justified on these materialistic grounds, less so on those which Aristotle singles out for thematic analysis.
Aristotle begins with the observation that the daily needs of a human being must be secured for there to be political life. But he also says that every regime aims for some conception of the good, and so exists for the sake of living well. Yet this cannot be articulated coherently except as the life of virtue, and true virtue cannot be formalized into laws and can indeed require their violation. The rule of the virtuous is not lawful. Still, since every actual regime must make use of the citizens it has, and since the irreducibility of virtue to law-abidingness means that their virtue can never be guaranteed, Aristotle, too, recommends a regime that at least avoids manifest injustices. The best practical regime safeguards much the same things as the Lockean commonwealth, and is similarly ruled by law. Extralegal action is in practice necessitated by considerations of expediency. Aristotle is at much greater pains, however, to emphasize that the rule of law can never be the rule of justice or virtue.
The difference may be stated as follows. Locke shows a greater concern for the exceptional situation in questioning the legalistic prejudice, Aristotle for the exceptional individual. The inability to predict every contingency means that not everything can be covered by law. The inability to codify virtue behaviorally means that the excessively virtuous will always be superior to any regime’s laws.
It is difficult to discern a difference in the practical implications of Locke’s and Aristotle’s extralegal teachings. The latter’s exploration of the heights seems to be negative, culminating in the reduced expectations from politics that characterize Modernity. Or, we might say, what actually characterizes Modernity is the assertion that one need not address the question of the best regime in order to maintain and appreciate the best practical regime. In order to view the regime as a whole, one must step outside it: the knowledge required when extralegal action is necessary must seem superfluous and even dangerous from within the regime’s moral horizon. Presidents who question the legal limitations of their office, it can often seem, seek a knowledge incompatible with the faithful execution of that office, or at least one omphaloskeptically speculative. The issue between Locke and Aristotle is whether this knowledge is self-evident and can be inculcated in ordinary times through the laws. Otherwise, the self-assurance and statesmanlike decisiveness which extraordinary times elicit may be guided by prejudices hostile, or at least alien, to the regime. For Locke, politics and therefore ideology can be self-sufficient. For Aristotle, no city can do without something of the philosophers’ rejection of society’s opinions as sacrosanct.