Aristotle (384–322 Bce)

Aristotle was, with Plato (428–347 BCE), one of the two towering philosophers of the ancient world. He was both the pupil of Plato and the teacher of Alexander the Great; his writings range over almost the entire span of human knowledge, embracing logic, metaphysics, theology, politics, ethics, aesthetics, biology, and physics. To the Middle Ages (which he influenced profoundly) he was simply known as the Philosopher.

Aristotle's political and legal theory can be thought of as fighting a war on two fronts: on the one hand, [Page 93]against the transcendental metaphysics of Plato; on the other, against the relativism and skepticism of the Sophists.

In the Republic, Plato sought to ground law and politics on transcendental metaphysics, and in particular on the vision by the Guardians of the Form of the Good. Aristotle, however, in a famous passage in Book One of the Nicomachean Ethics, ridicules the idea that a doctor or carpenter can improve his craft by grasping the Form of the Good. His approach is thoroughly empirical, rooted in a close study of how human beings actually govern themselves. Although there are certainly points of contact between his political theory and his metaphysics, the links are far more tenuous than in the case of Plato. Human beings are for Aristotle the “political animal”: as a matter almost of biological necessity, they can flourish only as members of an organized political community.

This naturalistic understanding of politics pits Aristotle not only against Platonic transcendentalism but also against various contemporary forms of relativism. Certain Sophists, as Aristotle reported in Nicomachean Ethics, had urged that human law is entirely a matter of convention: that “fire burns both here and in Persia, but the forms of justice keep changing before our eyes.” To this, Aristotle replied, in effect, that although variability exists in actual institutions, the situation is nevertheless not chaotic, and that some forms of government answer better than others the fundamental needs of human beings.

In particular, the principal virtue of a law (or a legislator or judge) is its adherence to the principle of the “golden middle”: its ability to avoid the extremes both of excess and of deficiency. In his ethical writings, Aristotle analyzes the chief virtues in terms of this doctrine of the mean, which thus connects his ethical and political thought.

In terms of the modern distinction between natural law and positivism, Aristotle occupies a distinctive position. If he is to be classified as a natural lawyer, he is an empirical natural lawyer, and if as a positivist, then as a positivist who believes that law must serve an unchanging human essence. In particular, he shows no inclination to a separation of law and morality: the two flow into one another, and both are necessary for the happiness of the “political animal.”

Aristotle's historical influence was at its most profound during the Middle Ages. As James Gordley has shown, much of modern private law doctrine, and in particular the law of contract, has roots in ideas that go back ultimately to Aristotle, and much of recent private law theory has taken inspiration from Aristotle's theory of “corrective justice.”

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