Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, September 8, 2010

Leo Strauss and Natural Right: Aristotelian Natural Right

ARISTOTLE'S NOTION OF NATURAL RIGHT is not fully fleshed out in any of the sources we have of his teaching. As Strauss points out, Aristotle's treatment of natural right covers but a small part of his Nicomachean Ethics. One thing, however, is certain and distinguishes Aristotelian natural right doctrine from the Socratic-Platonic-Stoic doctrine. Natural right is fitted for man, and need not be dumbed down.
"[A]ccording to Aristotle, there is no fundamental disproportion between natural right and the requirements of political society, or there is no essential need for the dilution of natural right.
Strauss, 156. Aristotle brings the Socratic-Platonic notion of natural law from the ideal sphere into the practical, real sphere. He also serves to wrest the Stoic doctrine of natural right from its spirited cosmological speculations and plants it firmly in heart of the city of man. Here is natural law in all of its reality, in all of its humanity. It is a notion of natural law that is not limited to the wise, to the philosophers, but to the entire corpus of men.
Plato . . . defines natural right with direct reference to the fact that the only life which is imply just is the life of the philosopher. Aristotle, on the other hand, treats each of the various levels of beings, and hence especially every level of human life, on its own terms. When he discusses justice, he discusses justice as everyone knows it and as it is understood in political life, and he refuses to be drawn into the dialectical whirlpool that carries us far beyond justice in the ordinary sense of the term toward the philosophical life.
Strauss, 156. For all his realism and down-to-earth character, Aristotle does not disdain the life of a philosopher, he simply distinguishes, in a manner that Plato did not, the life of the city with the life of the philosopher. Man, and his life in community, operates in the "twilight," and not in the full face of the sunlight of divinity. It is wrong, it is foolish to wrest man from this life in the "twilight," and force him into the full light of the sun. Man is man, living on earth, not a god or a beast. "In the twilight which is essential to human life as merely human, the justice which may be available in the cities appears to be perfect justice and unquestionably good; there is no need for the dilution of natural right." Strauss, 157.

As Aristotle withdraws from the Platonic idealism and brings us back to earth, he also injects the notion of variability in natural right. "[A]ll natural right," Aristotle says, "is changeable."* Strauss, 157. Steering between a Thomistic interpretation and an Averroistic interpretation of this statement, Strauss suggests the following as a plausible expression of what Aristotle intended to mean by saying that natural law or right was changeable. Strauss distinguishes between "general propositions" and "concrete decisions." When confronting a contingent, concrete situation, the general natural law is expressed, individuated as it were, in concrete fashion. "Hence justice and natural right," at least for men confronting a concrete situation, "reside, as it were, in concrete decisions rather than general rules." Strauss, 159. For Aristotle, in Strauss's view, the natural right is just this concrete decision, the law of the particular case, as it were. It is therefore particular to circumstances and "obviously mutable." Strauss, 159.

For all the mutability in particular applications of the general rules (what Aristotle describes as natural right), the general principles are not "implied and presupposed." That is, they remain as they are unchanging and untouched by the day-to-day affairs of men. Aristotle recognizes general principles, such as those relating to commutative or distributive justice, slavery, and character of the city, which he regards as immutable. "These principles," in distinction with the particular application of them (which Aristotle calls natural right), "would seem to be universally valid or unchangeable." Strauss, 159.

Why, then, Strauss asks, does Aristotle call these particular applications "natural right," and why does he find them changeable? Strauss suggests that Aristotle is in a way reserving exceptions which apply in extreme situations. For example, in extreme situations, such as when the city's self-preservation is at stake, and when it confronts unscrupulous external or internal enemies, there may be conflict between principles of commutative and distributive justice and self-preservation. In such cases alone, cases of "sad exigencies" that ought to remain "covered with the veil with which they are justly covered," the "normally valid rules of natural right are justly changed, or changed in accordance with natural right; the exceptions are as just as the rules." Even the grand rules appear thus mutable. And, confronting such "sad exigencies," "Aristotle seems to suggest that there is not a single rule, however basic, which is not subject to exception." Strauss, 160. Such an exceptional situation is not subject to definition because wickedness is not constrained, but is infinitely innovative:
By saying that in extreme situations the public safety is the highest law, one implies that the public safety is not the highest law in normal situations; in normal situations the highest laws are the common rules of justice. Justice has two different principles or sets of principles: the requirements of public safety, or what is necessary in extreme situations to preserve the mere existence or independence of society, on the one hand, and the rules of justice in the more precise sense, on the other. And there is no principle which defines clearly in what type of cases the public safety, and in what type of cases the precise rules of justice, have priority. For it is not possible to define precisely what constitutes an extreme situation in contradistinction to a normal situation. Every dangerous external or internal enemy is inventive to the extent that he is capable of transforming what, on the basis of previous experience, could reasonably be regarded as a normal situation into an extreme situation. Natural right must be mutable in order to be able to cope with the inventiveness of wickedness. . . . [T]he objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.
Strauss, 161.

These, of course, are terrible words, and they would seem to run extremely and temerariously close if not afoul of the Pauline injunction that one may not do evil so that good may come. At the same time, it is a truth as certain as any truth that exists that evil battles against good with all the wiles of high intelligence, and that it it calls from us responses that are unpleasant, distasteful, even morally marginal, yet proportionally necessary. What is morality like before the gates of Hell? Among such distasteful things we may mention such things as espionage (a form of stealing), feeding an enemy false information (a form of lying), "enhanced" interrogative techniques (a form of assault), sniping (the intentional killing of another, and not clearly in self-defense), and other acts that, outside the context of war and self-preservation, we would not countenance and indeed find abhorrent. Which of these things, and to what extent and when are these things, consonant with natural law? These are difficult questions, and they are not for the moral Pollyanna. Perhaps it was these sorts of things, in their primitive Greek forms, that Aristotle had in mind. At least this is Strauss's take on it.

*Nicomachean Ethics, Book V, chp. 7. 1134b. As Strauss observes, St. Thomas Aquinas, informed by the Patristic notion that the law is a habitus which is called synderisis or (less properly) conscience, will qualify this unqualified statement of Aristotle, and will limit it--not to the universal, basic, or fundamental principles of natural law, which are unchangeable and immutable--but to the determinations or rules that are derived from those fundamental principles. Strauss, 157-58. Strauss also discusses the "Averroist" interpretation of Aristotle, which interprets the "natural right" as "natural legal right," in other words, a sort of halfway-house law, one affected by human institution and convention, but more universal than mere positive law in that it is based upon "ubiquitous convention." This construction of Aristotle's natural law makes natural law more (in the words of Marsilius of Padua) a "quasi-natural" law. This construction was advanced by the Islamic and Jewish Aristotelians and by the Latin Averroists such as Marsilius of Padua. The "quasi-natural" law was largely equated (at least by the Christian Averroists) as the Second Table of the Decalogue, though it also included a general injunction of divine worship. In this view, all law, including the natural law, is subject to exceptions; only the exceptions, for pedagogical reasons, remain frequently unmentioned. These unqualified laws are therefore "conventional," and not "natural." Strauss observes that while the Averroist interpretation aligns itself with Aristotle on the issue of mutability of natural law, it essentially denies the existence of natural law, something which is inconsistent with Aristotle's express words that recognizes its existence.

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