Leo Strauss and Natural Right: Kingdoms and Robber Bands

IF THE NATION-STATE OR OTHER SOCIETY is conventional, then the common good, which is defined by the conventional boundaries of that nation-state or political society, is conventional. So, at least argue the conventionalists. "[T]he city would seem to be a conventional or fictitious [in the sense of a "legal fiction] unity." Strauss, 103. The border between the United States and Canada, or between Mexico and the United States: are not these things fixed by treaty, by convention? The boundaries of nation-state are seen to be unnatural in that they require for their maintenance vigilance, force, violence, compulsion. Things existing by nature do not require this sort of external imposition or governance. Similarly, the difference between illegitimate and legitimate children, the difference between natural born and naturalized citizens . . . these things are matters of convention. Why should a child born on the southern bank of the Rio Grande be a "Mexican," and one born on the northern bank of the Rio Grande be an "American"? Convention. Nothing but convention.

So it would seem that the entirety of law, which necessarily refers to this conventionally-defined civil society, must needs be conventional. Here, then, in a nutshell is the crux of the common good problem:

[T]he city is a multitude of human beings who are united not by nature but solely by convention. They have united or banded together in order to take care of their common interest--over against other human beings who are not by nature distinguished from them . . . Hence what claims to be the common good is, in fact, the interest of a party which claims to be a whole, or a part which forms a unity only by virtue of this claim, this pretense, this convention. If the city is conventional, the common good is conventional, and therewith it is proved that right or justice is conventional. . . . The nerve of the conventionalist argument, then, is this: right is conventional because right belongs essentially to the city and the city is conventional.

Strauss, 104-05, 107-08. The argument seems almost insurmountable, and its advocates, whether philosophical, vulgar, or sophistical have indeed their share of followers. But their persuasiveness is based ultimately upon a notion of good that is materialistic. The good is equated with the "pleasant." There is an underlying hedonism, a calculus of maximizing pleasure and minimizing pain, that underlies the conventionalist view. It is this that overcomes the taboo of ancestral prohibitions, and tags the desires that were frowned by such taboos as natural over and against the prohibitions of the ancestors or the gods and their priests. "Orientation by pleasure becomes the first substitute for the orientation by the ancestral." Strauss, 109.

Epicurus

Strauss looks at two forms of this materialistic hedonism that express the conventionalist theory of right: a philosophical form (advanced by the likes of Epicurus or Lucretius) and a vulgar form (advanced by the Sophists, best exemplified by the characters of Plato's dialogues Thrasymachus, Glaucon, and Adeimantus) which is a "corruption of philosophic conventionalism" traceable to the Sophists. Strauss, 115.

Epicureanism starts with materialistic presuppositions. Casting aside any good that may be defined by convention, the Epicurean finds good in the preconventional urge for pleasure, bodily pleasure. Since we do not feel other's bodily pleasures it follows for the Epicurean that good is highly individualistic. The Epicurean divides the world into the pleasurable, the useful, and the noble. It rejects the last as built upon convention. It emasculates the virtues, at least those other than justice (as justice is a conventional, not natural virtue in the Epicurean view), by making them means, and not ends. And it further corrupts the eunuch virtues by making them slaves to pleasure. For the Epicurean, to act in accordance with justice is to act in accord with convention. It is a pleasure that is conventionally defined. It requires the Other to be of any good:

The other virtues have a salutary effect regardless of whether or not other people know of one's being prudent, temperate, or courageous. But one's justice has a salutory effect only if one is thought to be just.

Strauss, 111.

The same is true looked upon it from the other pole. As a vice, injustice differs from the other vices, because it requires detection by the Other or it is meaningless. One cannot be unjust if the Other does not know:

The other vices are evils independently of whether they are detected or detectable by others or not. But injustice is an evil only with a view to the hardly avoidable danger of detection.

Strauss, 111. Justice it would seem depends only upon whether one is wearing the ring of Gyges. It is this sort of notion that underlies the materialistic ethos of the Roman disciple of Epicurus, Lucretius. Lucretius, distant atavus to Hobbes and Rousseau, saw justice as a construct of convention, a convention arising out of the life of the polis, foisted upon man by the strictures of religion and law. The philosopher, who lives in accordance to nature, must live on the "fringes of civil society," because a life that would be "devoted to civil society and to the service of others," partakes of the artificial, the conventional, and "is not the life according to nature." Strauss, 113.

The vulgar form of materialistic conventionalism is that vaunted by the Sophists. It is not the pursuit of philosophy on the fringes of society that is sought, but raw power: might versus right. The greatest good in the Thrasymachian world, the natural good, "is to have more than the others or to rule the others." Strauss, 114. The city's artificial and conventional laws seek to suppress the natural desire to lord it over others. But even so, the natural urge to dominance seeks to circumvent, or perhaps better, co-opt or exploit in an expedient spirit the conventional laws so as to obtain the power that is at the heart of all natural urges. Here is the germ of the ethos of the Machiavellian:

[L]ife according to nature [when within the political construct] consists in cleverly exploiting the opportunities created by convention or in taking advantage of the good-natured trust which the many put in convention. Such exploitation requires that one not be hampered by sincere respect for city and right.

Strauss, 114. Therefore, the "summit of happiness is the life of the tyrant, of the man who has successfully committed the greatest crime by subordinating the city as a whole to his private good and who can afford to drop the appearance of justice and legality." Strauss, 115.

There is an apparent problem with this view. If the basis of law is the common good, and the common good is defined by convention alone, then what is to distinguish the city-state from a gang of robbers? What essential difference is there between the rules by which a gang is governed and the rules by which a political society is governed? There must, it would seem, be something to distinguish these two forms of human gathering.

Strauss has here invoked that distinction between the "band of robbers" and kingdoms of St. Augustine's De Civitate Dei, one which insists that there is a difference between a gang of robbers and a kingdom, and that distinction is justice, a non-conventional concept:

Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms?

Remota itaque iustitia quid sunt regna nisi magna latrocinia? quia et latrocinia quid sunt nisi parva regna?

St. Augustine, De civ. Dei, IV.4 (English, trans. Dods).

How, then, are we to escape the argument of the conventionalist, be they philosophical or be they vulgar?

Socrates

The way out was first intimated by the sharp brain of the pug-nosed Socrates.