Locke and Aristotle on the Limits of Law

Aristotle and the Kingship of Virtue

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Aristotle and the Kingship of Virtue

Never for a moment does Aristotle doubt that what Locke says about unforeseen accidents and their effect on lawful governance is true. He might appear to denigrate the importance of chance when he says that “no one is just or sound by fortune or through fortune” (Pol. 1323b28–9), but he is clear that all goods external to the soul do result from chance and fortune. As these are the only goods to which the Lockean commonwealth is dedicated, comprehended in his byword of “property” (cf. 2nd Tr., §123), it is clear that Aristotle would consider the good of Locke’s commonwealth to be just as dependent upon the ruler’s prudent response to chance as Locke himself did.

Aristotle’s concerns regarding the rule of law extend beyond the variableness of human things, however. Most acutely, the rule of law would not resolve the sorts of conflicts that actually occur within politics. In the midst of a debate between an oligarch and a democrat, Aristotle allows that “one might perhaps assert that it is bad for the authoritative element generally to be man instead of law.” He immediately answers, however, that this contribution contributes little: “But if law may be oligarchic or democratic, what difference will it make with regard to the questions that have been raised? For what was said before will result all the same” (Pol. 1281a34–8; cf. 1282b1–15, 1289a13–4, 1289a21–5).

That the rule of law does not address the question of the regime is not, however, a criticism of law as such: the best regime may still be utterly law-bound. It is this possibility that attracts Aristotle’s attention. Locke says that the unpredictability of human affairs stands in the way of this. For Aristotle, it is not only the exceptional situation that is problematic for the rule of law, but also the exceptional individual. The generality of law does present certain problems for governance by law: written rules must be altered because it is impossible to write down everything precisely (Pol. 1269a8–13), or to make clear general declarations about everything (Pol. 1282b5–6). The result is not, however, just that circumstances change such that what was once a good law becomes a bad one. Rather, the problem of the exceptional individual is that even the best laws are never simply good, even in the most favorable circumstances.

Virtue and the Regimes

Aristotle notes that certain individuals can be so outstanding that they are a danger to the regime itself. Frequently, the problem they pose is simply one of political clout, e.g., Julius Caesar or Lorenzo de’ Medici. “It would be ridiculous,” Aristotle says, “if one attempted to legislate for them. They would perhaps say what Antisthenes says that lions say when the hares are making their harangue and claiming that everyone merits equality” (Pol. 1284a14–7).16 To remedy this, democracies practice ostracism and tyrants kill off the preeminent men in their city.

Aristotle reminds us, however, that it is not only the deviant regimes that are threatened by exceptional individuals. This is clear and largely unobjectionable regarding those who gather friends more loyal to themselves than to the regime, whether by political favors or by charisma or by wealth. Even good regimes must guard against ambitious plots. And tyrants are notoriously jealous and suspicious of virtuous men — both those with patriotic ambitions and those seeking only a quiet and private life — so the latter’s having difficulties under deviant regimes is also inoffensive. What might be surprising, however, is that excessive virtue is perceived as threatening in correct regimes, as well.

In the case of the best regime, however, there is considerable question as to what ought to be done if there happens to be someone who is outstanding not on the basis of preeminence in the other goods such as strength, wealth, or abundance of friends, but on the basis of virtue. For surely no one would assert that such a person should be expelled or banished. But neither would they assert that there should be rule over such a person: this is almost as if they should claim to merit ruling over Zeus by splitting the offices. What remains — and it seems the natural course — is for everyone to obey such a person gladly, so that persons of this sort will be permanent kings in their cities. Pol. 1284b25–34

The exceptional individual, if it is his virtue that sets him apart, challenges every regime with his bare existence to either submit to his rule or put an end to his presence in the city. Aristotle concludes his discussion of ostracism by remarking that the claim the virtuous have on political power is implicit in the claims of every aristocracy, oligarchy, and democracy (Pol. 1288a19–24).

Nor can such virtuous people be trusted to simply keep quiet if the city refuses to grant them authority. It is bad to be ruled by someone more vicious than oneself; as a consequence, the virtuous at the very least have a strong motive for violating the city’s laws, especially as they pertain to ethics or other areas where virtue is especially beneficial to the virtuous.

If there is one person so outstanding by his excess of virtue — or a number of persons, though not enough to provide a full complement for the city — that the virtue of all the others and their political capacity is not commensurable with their own (if there are a number) or his own (if there is one), such persons can no longer be regarded as a part of the city. For they will be done injustice if it is claimed they merit equal things in spite of being so unequal in virtue and political capacity; for such a person would likely be like a god among human beings. From this it is clear that legislation must necessarily have to do with those who are equal both in stock and capacity, and that for the other sort of person there is no law — they themselves are law. Pol. 1284a3–14

We should not neglect how curious a claim this is. We tend to consider assertions that one is above every law to be characteristic of criminals, not of the paragons of excellence. Many people absent themselves from obligation to at least some laws, but this person could do so with perfect and clear-sighted justice. Aristotle doesn’t say that there is anything in particular wrong with the law, or that such a person could not claim superiority over a different, better law.

This discussion of excessive virtue gives rise to the question of absolute kingship. In the course of analyzing this new topic, two key questions are implicitly answered. a) Must the rule of virtue be absolute, i.e., above every law, and hence destructive of the previous regime? And b) is the virtuous man’s criminality evoked even by the best laws? The answer to each question is yes, and the reasons are linked. The rule of law can never be simply just. Justice does not take the form of law. The first question is the obverse of the second, the explicit subject of Aristotle’s discussion.

The Absolute King

Consideration of the king who rules over everything arises from the question of ceding kingship to the man of excessive virtue. What would this cession mean? This is resolved by asking whether it is more advantageous to be ruled by the best man or the best laws (Pol. 1286a8–9). If the latter, the rule of the most virtuous need entail nothing more than a permanent general on the Spartan model (cf. Pol. 1285a2–16): Aristotle’s claim about ostracism and kingship seems far less objectionable if it means only that the paradigm would be the reelection of a Roosevelt. Answering in favor of rule by the best man, on the other side of things, need not mean that the exceedingly virtuous would necessarily rule as an absolute king: his virtue may shine so brightly for no other reason than the paucity of virtue in the city, i.e., he might not be a good man without qualification. If the laws were reasonably good, it might be preferable that he rule in accordance with them. It would mean, however, that this would always be an approximation of justice, and so that a better man would with greater right be less constrained by these laws.

This ambiguity regarding the most virtuous man in the city versus the best man without qualification persists throughout the rest of the discussion. Arguments against absolute kingship make him the best in the city, while the serious point about regimes and Aristotle’s concern focus on the second option.

Aristotle has raised the question of whether it is best for the best man to rule or the best laws. He almost immediately refines this question, however. It turns out that this distinction misses the point, as is shown by the ensuing debate. One arguing for rule by the best man, the debate begins, might say that law speaks only of the universal and does not command with a view to circumstances; “to rule in accordance with written [rules] is foolish in any art,” and so “the best regime is not one based on written [rules] and laws” (Pol. 1286a11–2, 1286a15). But, on the other hand, whatever is unaccompanied by the passionate element is in general superior to that in which it is innate, and this is true of the laws but not of human beings.

Perhaps, Aristotle goes on to suggest, the promoter of kingship will respond that the king’s possession of the passionate element will be offset by his finer deliberation regarding particulars. But this cannot dispose of the problem, for now we have two sets of corresponding strengths and defects on each side of the argument. The laws, in their favor, are dispassionate, but their universality means that they do not look to circumstances or particulars. The best king, on the other hand, will judge particular cases more finely than the laws would, but is subject to human passions.

So the question of whether the best laws should rule or rather the best man would seem to obscure the real question by establishing a false dichotomy. Instead, the laws should be authoritative where their particular defect does not render their particular strength useless. (Dispassionate folly is folly nonetheless) A human being simply must rule at times. These times are not, however, when man’s particular defect does not render his strength useless, but rather when this defect cannot be circumvented. The debate between the rule of law and the rule of man misses the issue: what can be contested is whether one alone should decide things where the laws cannot, or rather everyone. But this is nothing else than to revisit the matter of whether one can be so exceedingly virtuous that the just city has no choice but to submit to his authority as a king! And this possibility, combined with questions of succession and the king’s bodyguard, calls forth a series of arguments against kingship ungoverned by law and the rule of man in general. This argument has led us in circles. Something has confused the issue.

A Counterargument to Absolute Kingship

The king who rules by law, where law is able, was deemed preferable to the one who rules only by his own will. Yet the reason for this was that the latter form of government does not guard against human passion where such protection is possible (Pol. 1286a22–4). This was also the same reason why an aristocracy would be preferable to a kingship, since a numerous body is more incorruptible than is a single human being (Pol. 1286a25–1286b7). None of this settles the question of the best regime: that question requires that we maintain the moral virtue of the best man. Everything since Aristotle introduced the problem of ostracism has been merely a prelude to this point. The question of rule by man versus by law may rely on an unhelpful dichotomy, but that of the best man versus the best laws is foundational.

The analysis of the absolute king takes the form of a series of arguments against it (Pol. Bk. III, Ch. 16). The place of this chapter in the larger discussion will likely be misinterpreted if we fail to notice that these arguments are not offered in Aristotle’s name. Instead, he says only that “the arguments of those who dispute against kingship” are roughly these (Pol. 1287b35–6). We can further distance Aristotle from these arguments by attentively noting certain deficiencies in them. The counterarguments to this chapter are, it turns out, contained in the manner in which the arguments are themselves presented. There are six, of which space permits me to discuss three.

(1) The chapter urges that, “as regards those things which law is held not to be capable of determining, a human being could not decide them either” (Pol. 1287a24–5). I take this to mean, based upon what follows this statement, that where the law cannot answer, neither could a human being without having been educated by the laws. After all, the argument continues, the laws educate men for this (“this” presumably being those cases where the law does not adequately guide the magistrates). They guide rulers in those cases where the laws do not speak.17 Indeed, the laws themselves make room for their alteration on the basis of the rulers’ experience.

What Aristotle adds, however, undermines the initial plausibility of this argument by disclosing its questionable premises. He summarizes the point by saying,

One who asks law to rule, therefore, is held to be asking that god and intellect alone rule, while the one who adds man adds the beast. Desire is a thing of this sort; and spiritedness perverts rulers and the best men. Hence law is intellect without appetite. Pol. 1287a28–32

This appears to be Aristotle’s judgment on the argument, or his addition to it. The rule of laws not of men, he implies, expresses the ideal that the god and intellect should rule, and consequently maintains a bestial conception of human beings. Desire is a bestial thing, while the intellect is divine. Spiritedness is similarly unambiguous, serving only to pervert rulers and even the best of men. In response to the question “what is law?” those who defend the rule of law and think that human rulers should be nothing but law-guardians and servants of the laws (cf. Pol. 1287a19–22) seem to answer “intellect without appetite.”

The power of this argument therefore lies in its view of what law is. We can begin by noting that Aristotle has already said that the rule of law doesn’t answer any interesting questions, for the laws may be democratic, oligarchic, etc. This diversity is absent here. Yet this absence can be satisfactorily accounted for. That is, this “law” seems to be what later thinkers, some seeing themselves as Aristotle’s heirs, others as purgators of his influence, would call the natural law.

It might seem intuitive that if no actual law can be identical with the law of nature so defined, then this argument against the rule of a human being would ring hollow. But this suggestion mistakes the terms of the debate: if we are to consider an unimaginably good human being as king, we must also allow the law to express its virtues without extrinsic opposition. The serious challenge to this argument, therefore, and the point around which this entire discussion of the rule of law and absolute kingship revolves, is the status of this law. The argument that the best king rules all things in accordance with his will and without law would be destroyed, not by asserting that such virtue is beyond human capacity,18 but by showing that even a god could not possess all the requisite virtues or, if it did, would rule by law. The first might be the case were those virtues essentially incompatible such that the good ruler passed from the merely unlikely and into the realm of the incoherent or absurd. The second would be true if the law were simply good, so that such a god would in point of fact rule in accordance with it.19 The argument under consideration relies on just such a law. Consequently, it would ring hollow were no such law to exist, or were it not obligatory. Similarly, if the relationship between desire and the intellect is not so unambiguous, nor spiritedness simply bad, then this argument loses most of its force.

(2) The rule of law had been criticized by analogy to the arts, where only the foolish think rules adequate to the task (cf. Pol. 1286a10–5, cited above). The chapter goes on to respond, therefore, that those engaged in the arts, like doctors, do not pervert their judgments on account of partiality; if they did, we would insist that they healed according to written rules. Doctors, moreover, do not heal themselves, and trainers seek others when they are training. This shows that the experts know themselves to be poor judges both in their own cases and when they are suffering. What these analogies make clear is that what men seek when they seek justice is impartiality (meson).

The point of this counter-analogy isn’t immediately obvious, and so it must be reconstructed. It claims that what men seek in the law is impartiality. But how is this relevant to the discussion at hand? In suggesting that the pro-kingship argument’s analogy to the arts is inapposite, the chapter implies that the impartiality for which men seek in the law is to be contrasted with an expertise which they do not seek. This suggestion, however, implies a positive statement about the nature of justice. This statement, it turns out, also underlies the previous argument. It suggests that justice is easy. That is, the problem of politics is not that the intellect does not know, but that it does not rule. One need only bracket off spiritedness and desire, the sources of partiality, for the intellect to shine through.20

(3) The chapter next introduces a distinction between sources or kinds of law. That which is based on custom (ethos) is more authoritative and deals with more authoritative things than that which is in written form. This distinction is important because it allows one to distinguish an argument applicable against the rule of written laws from one touching customary laws. Thus, one can grant that it might be safer to have a human being rule than written laws, but that this is not so for customary laws. It seems that one can grant everything that Locke says and yet maintain the authority of Law. Aristotle’s treatment of legalism, unlike Locke’s does not presume a particular conception of law.

The crux of this argument is that the customary laws are more authoritative than written ones. What this means isn’t immediately clear. We need not, however, read it as making the somewhat unbelievable assertion that the customary laws by contrast are infallible, as if “more authoritative” somehow meant “more competent.” The more plausible assertion, and the one I will take this argument to be making, is that human beings are less trustworthy in more authoritative matters, i.e., in the sphere treated by customary laws, than they are in matters covered by written laws. The things relating to custom are literally ethics (ēthika).

The saliency of this argument would suggest that the absolute king claims a superiority to the moral laws, as well. Note, he is not necessarily eschewing ethical conduct, but rather the obligatory nature of laws which claim to give definitive expression to this conduct. Similarly, this argument need not assert, as (1) did, that these laws express justice perfectly. Nor does it desire to assume, with (2), that the principles of right and wrong are unproblematic. Rather, it says that human beings are poor judges of these things. If this is so, this argument would be a more sophisticated version of (1): men, educated by the customary laws, can judge written laws well enough, but they cannot safely move beyond that law-bred moral horizon.

This argument is penetrating, but its insight is into a question different from the one under immediate consideration. It denies, by way of assertion, that a human being could ever be wise in the way that the ancestral laws are wise. This, in turn, could be true if these laws were the product of inimitably superior gods or those whom they inspire, e.g., Minos or Numa. The question, however, is, How would these gods or demigods rule? That is, the truth of this argument does not imply that the best would not rule absolutely or have a just motive for violating these laws.

Aristotle’s mythic account of the growth of cities from villages and households is not providential, and the gods appear as only human creations from an age wherein men lived like Cyclopes (Pol. 1252a24–1253a1). The one who ended this barbarism by imposing a view of the good through law and sanction (cf. Pol. 1253a30–9) must have himself been human. The wisdom of the ancestral customs is only human wisdom, and so cannot claim the superiority over the wisest that this argument grasps for. Yet, at the same time, this superiority would be logically possible if what ought to be done could always be commanded in law, what avoided, forbidden. Were that the case, then the benefits that accrue from lawful regularity would mean that even the best man would rule in accordance with law. He could be a perfect legislator, the founder of a flawless community, making the city into the mirror of his own excellence. This would provide precisely what the argument under consideration is looking for: questioning these laws would not only be impious but also a sign of deep moral confusion. Anyone with the wisdom to transcend them would have no cause to. If law can only be an approximation of and a poor substitute for the best man, however, then it is impossible that any laws were intended to be simply authoritative, at least if their authors were both benevolent and wise. In the end, this is the most penetrating argument in the chapter, but it is not an argument against the absolutism of the most excellent king.

Aristotle ends Chapter 16 by boiling down the entire argument against absolute kingship to two points. Roughly speaking, it is: “every ruler judges finely if he has been educated by the laws” (Pol. 1287b25–6), and many people see, judge, and act better than one, just as one sees better with two eyes than with one, judges better with two ears, and acts better with two hands.

This second point has a nakedly rhetorical element to it, yet Aristotle’s phrasing of it reveals how it is dependent upon the first. One certainly sees better with two eyes than with one, but one judges better with two ears only if judging correctly is a matter of correctly hearing. This is plausible only if the principles of judgment are clear and readily available, poor judgment proceeding only from a poor appreciation of the facts (moral perversion is silently dropped). In the event that we miss this, the third part of the analogy is pointedly bizarre: it mistakes the capacity to act for the good choice of how to act.

To buttress this claim, Aristotle tells us, they argue that kings make for themselves subordinate ministers, and that these are in effect “co-rulers.” Yet because a king would rule over them and not have them be insubordinate, the argument continues, they must be his friends. But — and here one can almost hear Aristotle laughing as he attributes this to a grave democrat — if they are friends, and a friend is someone similar and equal, then the king has revealed his adherence to the principle that those who are similar and equal should rule similarly, and thus demolishes his own title to rule.

It is not until this brazen sophistry that Aristotle tells us that the arguments against kingship are “roughly” or “essentially” (schedon) these. What does he mean by this “roughly”? One thing to note is that not every argument that was present in the chapter is represented in this summation. Some things are left out when the case against kingship is reduced to its essentials. We are left with two arguments: justice is easy and a sophistry. Might Aristotle mean to signal with this “roughly” that every assertion that absolute kingship is flatly unjust (rather than merely impractical) is reducible either to nonsense or the claim that justice is easy? What is certain, in any event, is that Chapter 16 contains six arguments, and that every aspect of each of these can be characterized in one of three ways: a) already dismissed, b) begs the question or otherwise misses the point, or c) asserts that justice is adequately known by every well-educated schoolchild — the view of the city.

Law and Philosophy

I have been treating the dialectic character of Aristotle’s arguments as indicating something of a plot: I feel compelled to approach the Politics as a full-fledged dialogue, and thus as possessing an action in addition to its argument. Attentiveness to this action reveals an interesting criticism of law. That is, the interjections in favor of the law play a consistent role in the development of Aristotle’s argument — one of obstruction. I take this to have been intentional. Conclusions drawn from this observation may lack the systematic rigor that could be had from piecing together Aristotle’s statements into syllogisms. To eschew this procedure because it does not allow for irrefutable proofs of my conclusions, however, would be to exchange blurred vision for blindness.

The laws, in point of fact, express the view of justice held by the regime in power (Pol. 1289a13–5). In every actual regime, moreover, authority is determined by the sort of military force that predominates, not by questions of justice or some cosmologically significant design (Pol. 1289b33–40, 1297b16–28, 1321a4–14).21 But we should not, like Thrasymachus, get caught up on this fact. When Aristotle considers what the best practical regime looks like, law plays an essential role. Actual human beings cannot be trusted with power, and whenever the specter of their rule interposes itself in the discussion of rule by the exceptionally virtuous, Aristotle repeats again and again that law should rule. At the same time, he acknowledges that avoiding recourse to human discretion is ultimately impossible, for much the same reasons that Locke does, and the only “solution” for this is necessarily just as problematic as Locke’s.

If we begin with this fact about actual human behavior and the practical considerations it induces, we are well on the road to legalism. There are a number of beliefs that fall within the penumbra of that view. Deviations from the law are just that: deviant. Rule by law is best, or what is best takes the form of law. The unlawful requires an excuse: the necessity of Lockean prerogative does not inform the ideal, but rather indicates the gulf between the ideal and the possible. It seems almost intuitive that the resolution of the debate between rich and poor, democrat and oligarch, is to allow neither to rule: the law should rule. This view becomes even more plausible when the narrowness of Locke’s conception of law is noticed, and something like the Anglo-American tradition of law is considered.

And here we come to Aristotle’s criticism of law. (We cannot call it a criticism of the rule of law, for it does not touch upon the practical matter of the untrustworthiness of human beings to know and pursue justice) Legalism does not replace disputes over justice with ones over natural property rights or legitimacy: it instead discourages the fundamental examination of justice, right, and legitimacy by implying that, even if the proofs or applications are complex, answers regarding ‘what is justice?’, ‘right?’, ‘legitimate?’, etc., will turn out to have been intuitive all along. Philosophy would thus stand disrobed as an idiosyncratic or even fetishistic waste of time and wood-pulp. The role that interjections on behalf of the rule of law play in the action is to sidetrack the examination of justice. Unless justice really is a simple matter, these interjections stand in the way of the argument’s proceeding. Aristotle writes them into the story in order to highlight this question, and he does so in a manner that draws attention to how legalism can obscure that question.

Arguments against the superiority of rule by the best men to that of the best law, Aristotle intimates, rely on the unproblematic nature of the question of justice. Indeed, every democracy which does not undertake the wholesale initiation of its children into the mysteries of political philosophy implicitly makes the same claim about justice. The articulation of justice may be complex, the argument might go, but we do not need it to be articulated to know it. Right and wrong are known to every well-educated schoolchild because the necessary education is available to all: one need only to live in society to have learned these things. But that is to say that the laws were our educators — perhaps not every law, but the important ones, the customary laws or the laws that describe our ethos. If they’re not written down then perhaps they are the common law, or the spirit of the laws, or better yet the law beyond law with which Ronald Dworkin concludes Law’s Empire. Anyone who claims to be better than this law would be unjust.

Aristotle begins his thematic treatment of justice in the Nicomachean Ethics by accepting the unreflective yet respectable equation of the just and the lawful. Yet the cost of making justice simple in this way comes due when we turn to consider the causes of injustice. One eminently plausible source of wrongdoing is that justice is bad for those who are expected to do right, and so of course criminals evade the law whenever they wager that they can evade detection, as well. This explanation is not available to the city, however, or to anyone attached to justice; it is even more subversive to consider the virtuous man in this light. If everyone is familiar with the law, a different argument might go, and justice is choiceworthy, must not injustice result from some unjust force within the soul? It is not necessary that this be passion and spiritedness, but given their role in crime it would not be surprising if they were enlisted for this role. And, as we saw above, they frequently are. Aristotle implies that there is a kinship among what the city teaches about law-abidingness,22 the simplicity of justice, and the singular badness of the passions.

Aristotle’s correction of this naïve view is telling. He distinguishes between willing and unwilling acts, the difference hinging on whether it was up to the actor to choose how he would behave (Nic. Eth. Bk. V, Ch. 8). Ignorance is sufficient to mark an act as unwilling, as is physical compulsion. The example he gives for the latter is taking someone’s hand and having them strike another (Nic. Eth. 1135a26–8). What is telling is that if a passion ever does something analogous to this, it must be “a passion that is unnatural and inhuman” (Nic. Eth. 1136a9). Normal — we might say “healthy” — people can never blame their passions. But note what question this intensifies: everything hinges on how one could willingly commit an injustice, neither ignorant nor overcome by some devil within. Employing language identical to his definition of willing acts, Aristotle subtly suggests that this is impossible, and for what I hope to have made an anticipated reason.

People believe that it is up to them to do injustice, and hence they believe that it is easy to be just, but it is not; for to have intercourse with one’s neighbor’s wife, or to hit one’s neighbor, or to put money in one’s hand is easy and up to them, but to do these things while being in a certain condition is neither easy nor up to them. And similarly, people think there is nothing wise about recognizing what is just and unjust, because the things about which the laws speak are not difficult to understand (but these are not the things that are just, except incidentally). But to know how just things are done and distributed is a bigger job than to know what is healthy, although even there it is easy to know about honey and wine and hellebore, or about burning and cutting, but how one ought to dispense them for health, and to whom and when, is such a big job that it is the same as being a doctor. Nic. Eth. 1137a6–17

A good judge must be wise, not simply impartial. Right and wrong admit of expertise. Justice is not easy.

Some can know what justice is better than others. Some can be better rulers than others. And as soon as inequality is possible, we must wonder what justice demands when it is extreme. For the most part, this inquiry isn’t important for its practical implications. Chances are that any people suited to be ruled by an absolute king would be incapable of perceiving his superiority anyway, and Aristotle has not answered the challenge of the Republic that the just man would not want to rule. Rather, the problem of the exceptional individual demands examination because it reveals something of the nature of justice. The arguments in favor of the rule of law that abound in Book III of the Politics are opposed to this inquiry even taking place, however. In making justice simple, they foreclose as superfluous any attempt to learn more about justice: the desire to be more just becomes a matter of will and self-control rather than of philosophy. This will not make men more just, only more repressed. Nor, as the discouraged inquiry would reveal, will the rule of law ever be the rule of justice. It will always be a particular, contingent, and partial view of right.

Aristotle’s treatment of the rule of law focuses on or points us to two core problems. The first is the simplicity of justice. The second is the existence of what was later called the natural law. Yet the problem to which Locke points is not absent. On the contrary, it is explicitly stated and indeed forms the starting point of Aristotle’s presentation. He could not have questioned the pretensions of custom without scandal were it not for the thoroughly respectable pretence provided by showing the inadequacy of written rules for the city’s security and wellbeing. And, as a practical matter, Aristotle is in total agreement with Locke on the desirability of rule by law.

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