Locke and Aristotle on the Limits of Law

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Aristotle’s exploration of extralegal action has a very different flavor from Locke’s What they agree upon is that a community whose force is applied only pursuant to law cannot secure itself in every circumstance. They both acknowledge the power of flux or chance or fortune — that aspect of the world which is recalcitrant to rational prediction and control. A commonwealth that does not make some accommodation for this will find the prerequisite resources of its existence imperiled. Here, at least, Locke and Aristotle are in agreement.

What, then, accounts for the very different flavor of their presentations? We must reject a narrative in which Locke sees the problems due to changing circumstances while Aristotle does not, and in which Aristotle sees those due to intractable problems in the articulation of justice in law whereas Locke does not. Since both are aware of and concerned with the first, we might be tempted to conclude that Aristotle just provides the more comprehensive account. Both would acknowledge the role of Fortuna, but only Aristotle would understand that the paradigm of moral goodness cannot be Forrest Gump. Yet this story also falls flat. After all, doesn’t Locke acknowledge the problem of the exceptional individual when justifying the prerogative power of pardon (cf. 2nd Tr., §159)? And doesn’t he go on to say, just a few sections later, that excessive virtue would provide (in theory) a title to absolute rule (cf. 2nd Tr., §166)?

Locke does everything he can to foster a sense that questions of right and wrong aren’t all that complicated. Property can exist in the absence of government, and so there can be clear rules of natural justice. The law of nature is “plain and intelligible to all rational Creatures” (2nd Tr., §124). Even the “strange Doctrine” of natural executive power was “writ in the Hearts of all Mankind” (2nd Tr., §11). In this, he would certainly differ from Aristotle. But this would be the case only if we could take Locke at his word.

The problems with Locke’s pronouncements on the law of nature have been indicated countless times.23 Whatever its actual status in his thought, however, the cornerstone of Locke’s entire account of political legitimacy is that the majority of mankind is ignorant of it (2nd Tr., §§123–7, 136–7)! If justice is simple, its discovery at least requires more effort than most people are prepared to exert. Or perhaps the law of nature is simple, while justice itself is not: God, tellingly, governs the universe as a species of prerogative, not law (cf. 2nd Tr., §166). One need not acknowledge that Locke intentionally concealed a perfectly Hobbesian law of nature behind the façade of Hooker’s Thomism to see that he exaggerates the obviousness of justice. That is, he is also aware of the limitations of the law that Aristotle brings to the fore.

We appear to be left with a difference of emphasis, Locke focusing more on the flux of worldly things, Aristotle on the irreducibility of justice to law. Aristotle’s argument also demonstrates, however, why the problem of the exceptional individual cannot be of immediate importance to the practice of actual politics. After all, what constitution can make allowances for the excessively virtuous? We might therefore be tempted to say that Aristotle explores extralegal action for intellectual reasons, Locke for pragmatic ones. The Two Treatises of Government are certainly written in support of a readily identifiable political decision in a way that the Politics are not. Yet Locke’s doctrine of prerogative is not bare pragmatism: it is the justification of a practice, and so requires the same sort of enterprise as Aristotle undertakes.

So what can it mean that Locke’s presentation seems more practically oriented than Aristotle’s? Either it confronts certain harsh facts which theorists like to abstract from in order to make the world more amenable to verbal manipulation, or it cuts through all the clutter which the philosophers’ split hairs needlessly give rise to. Either it is more realistic, or less extraneous. There is no unpleasantness present in Locke which is absent from Aristotle, so the first cannot be the case. It must, therefore, be the second. Locke seems more concerned with what Aristotle calls the best practical regime because we suspect that an understanding of the best regime, simply, is superfluous to it. Which is to say that Aristotle seems more theoretical, Locke more practical, because of a prejudice on our part. In order for Aristotle’s explorations to be gratuitous, we would have to know at least enough about the standards of justice to construct rough guidelines for our practices. Our situation could not be one of aporia or resourcelessness. The basics of justice, if not the finer points, must be readily available to us. As every society requires that its members accept its particular account of justice as relatively obvious, as no society will flourish for long which does not to a very large extent succeed in engendering this subjective feeling of certainty, we at the very least have cause to suspect that Aristotle’s investigations are not so practically vain as they might at first appear.

Aristotle’s investigations would not be practically vain if the city somehow required philosophy. Here we find the difference between Locke and Aristotle. The city would not need philosophy if knowledge of the best regime were superfluous to governing the best practical regime, or the end for which Lockean property is to be employed were irrelevant to a commonwealth solicitous of that property. The limit case of this proposition, from the perspective of the regime, is extralegal action: that situation is one that demands a comprehensive, foundational appreciation of the regime. So the question is, How much reflection on one’s law-bred intuitions must precede this appreciation? Can the laws and the education they provide prepare one for this, or must one instead possess a sort of virtue which can be attained only by entertaining the transgression of society’s constitutive opinions?

Locke, by his choice of emphasis, suggests that a more robust articulation of societal norms is sufficient.24 Politics need not require anything trans- or super-political. The member of a well-constituted commonwealth can indulge in parochialism without falling short as a member. Perhaps some great founder or founders are necessary to set up this happy situation (Locke is strangely silent about this), but after that, civic virtue suffices. Ideology and the opinions fostered by obeying society’s laws suffice.

Aristotle’s Politics, on the other hand, provide an introduction to philosophic speculation before entering into the best practical regime; the discussion culminates in a consideration of liberal education. Philosophy may not necessarily make one a good citizen, and it is not presented as choiceworthy because it leads to the benefit of others, but there are times when the good citizen, in order to act well, must have true knowledge of those things which philosophers study. The statesman requires political philosophy, albeit in a manner different from the philosopher. The perspective of the founder, the perspective which establishes rather than respects the nomoi, cannot simply be set aside or discouraged in the city.

1 Parenthetical references to Locke come from Peter Laslett’s edition of the Two Treatises of Government. For Aristotle, I have used Carnes Lord’s translation of the Politics and Joe Sachs’ of the Nicomachean Ethics.

2 For more on the view of prerogative suggested here, see Ross J. Corbett, “The Extraconstitutionality of Lockean Prerogative,” Review of Politics 68, no. 3 (Summer 2006): 428–48.

3 Though, as Locke’s discussion of early kings reveals, it is not essential that prerogative be exceptional: “the governors, beings as the fathers of them, watching over them for their good, the government was almost all prerogative” (2nd Tr., §162).

4 A perfect analogy would be the switch command in a number of programming languages.

5 See Hans Kelsen, Pure Theory of Law, abc; General Theory of Law and State, def. For Kelsen’s rejection of ‘gaps’ in the law, and thus his parting from Locke, see General Theory, ghi.

6 A slightly different problem is raised when the law is ambiguous (i.e., when the analogy to computer programming breaks down, as it in reality almost always does). Prerogative would also seem necessary here, but this would render every judicial resolution of a question of law prerogatival.

7 Cf. John Locke, Essay Concerning Human Understanding, x, y, z.

8 Locke does not adduce this particular example in order to recommend redrawing legislative districts. Rather, he assumes that his persuadable readers already agree that this is necessary, and so may accept a broader doctrine of extralegal action as following from that necessity. We might comfortably counter this argument with the observation that redistricting need not be extralegal. Yet Locke does not take for a law just any standard, but rather only one whose violation ought to be clear to just about everyone, i.e., one that can be applied mechanistically. The battles fought over redistricting in the United States suggest that we have not solved this problem, as do the solutions proposed for those battles: entrusting it to the discretion of an impartial judge relies more on that judge’s honesty and prudence than on having found a rule by which to limit that discretion.

9 The success of social science in roughly predicting movements at the macro level, while of indispensable utility to modern governments, does not preclude a continued need for discretion in particular cases.

10 John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the Two Treatises of Government (Cambridge: Cambridge University Press, 1969), 153.

11 ibid.

12 Pasquale Pasquino, “Locke on King’s Prerogative,” Political Theory 26, no. 2 (April 1998): 198–208.

13 Harvey C. Mansfield, Taming the Prince: the Ambivalence of Modern Executive Power (Baltimore: The Johns Hopkins University Press, 1993 [reprint]).

14 As a consequence, Dunn’s interpretation recasts the debate between Locke and Filmer. One might have thought that the latter opposed to the natural equality of mankind a hierarchy set by God himself, and that Locke confronted this supposed hierarchy in order to reestablish the plausibility of equality. Instead, Dunn informs us that Locke struck at Filmer’s fair-weather piety with one which could command the submission of a real believer. Unfortunately for this interpretation, however, the Two Treatises give every indication of their author’s having believed that the issue revolved around the existence of a divine mandate to rule, not the unmanly cravenness a desire for such a mandate would reveal. Dunn’s point that prerogative results from man’s being alone in his struggle to live together with other men, however, is well taken.

15 H. L. A. Hart, Concept of Law, esp. abc.

16 The reference to Antisthenes is lost, but in Aesop’s version the lions say, “Where are your claws and teeth?” Cf. Fables 241; Politics [trans. Lord], 255 n. 37.

17 That they are to be guided “by the most just decision,” the oath sworn by jurors (Politics [trans. Lord], 256 n. 55), might suggest the sorts of things that the law cannot cover, as conceived by the ones making this argument; cf. Rhet. 1354b13–5.

18 Cf. Pol. 1286a23–8. Consider also that, whereas the Spartan and barbarian models of kingship actually exist, and various sources suggest that the Greeks formerly had dictators and heroic kings, Aristotle provides no example of there ever having been an absolute king (as opposed to a tyrant).

19 I shall ignore Aquinas’ distinction between the eternal and natural laws. That distinction is irrelevant for the argument at hand.

20 There is another implication of this which is not taken up in Aristotle’s summary of the chapter. It is that knowledge of justice is like an art in that it does not determine ends, or can be misused (cf. the discussion in the Republic 331d–334b). Since this is certainly not Aristotle’s view, this is another indication that this chapter is not offered in his name.

21 See also Robert C. Bartlett, “The ‘Realism’ of Classical Political Science,” American Journal of Political Science 38, no. 2 (May 1994): 381–402.

22 One can disown the laws of one’s city and still believe justice to be a simple matter. The city, in narrowing the gulf between justice and its laws, suggests the form that justice takes. It is easier to reject the content it gives to justice than this form.

23 See, e.g., Patrick Coby, “The Law of Nature in Locke’s Second Treatise: Is Locke a Hobbesian?” Review of Politics 49, no. 1 (Winter 1987): 3–28; Richard Cox, Locke on War and Peace (Oxford: Carendon Press, 1960); Robert A. Goldwin, “John Locke,” in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey, 3d ed. (Chicago: University of Chicago Press, 1987); Thomas L. Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988); and Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953).

24 One might surmise that Locke omitted more theoretically-centered discussions for rhetorical reasons rather than because he thought them inessential: the Two Treatises would just have been too long. They were not composed, however, to be the short tract we have, but rather to be a massive tome of more than twice their present length. This surmise is consequently unlikely.

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