<<

. 6
( 12)



>>

On the one hand, indeed, the legal system prescribes a course of action,
encouraging the exercise of the virtues de¬ned according to the values
shared in a given community and constituting its identity: “perhaps most
lawful things are those done from the whole of virtue, since the law orders
us to live in accordance to each of the virtues and prohibits us from living
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
150

according to each of the evil habits” (1130b23“5). On the other hand,
far from simply re¬‚ecting an implicit axiological arrangement, the legal
system is also somewhat productive of it, in the sense that it contributes
to its coming into being and ¬xation. We are, indeed, told that “other
lawful things are those which have been enacted and produce [poihtik‡]
the whole of virtue, and they are concerned with education for the com-
mon [good]” (1130b25“7). Rooted in custom and communal practices,
legality brings their working normativity into focus, clari¬es its margins
and assumptions, in a work of interpretation involving no mere tran-
scription, but decisive and reorienting construction. It is with respect
to the pedagogical function of legal measures that, once again, Aristo-
tle warns against collapsing justice itself and any juridical norms, thus
continuing with the double strategy of identi¬cation and differentiation
of justice and legality. Being a “good citizen,” that is, embodying the
legal projection of a virtuous active member of the polis, he observes,
may not mean the same as being a “good human being.” Again, this
would depend on the manner in which a body of norms is laid down
or “framed”: “As for each individual™s education, in virtue of which a
human being is good without quali¬cation, we must determine later
whether it belongs to politics or to another inquiry; for perhaps to be
a good human being is not the same as to be a good citizen in every case”
(1130b27“9).
The issue will appear properly to belong to the political investigation “
for, much as the non-coincidence of good citizen and good human being
remains an issue, we ¬nd that we cannot access any determination of
the human being as such aside from altogether essential and constitu-
tive political considerations. Politics Theta is in its entirety devoted to the
issue of education “of the young” (1337a11) and makes it clear that the
cultivation of logos (both [1] the capacity for receiving logos and forming
character accordingly and [2] the enactment of logos itself) is an essen-
tially political matter. Whether in its determinate informing function or
in its actuality, logos is a fruit of politics. At the same time, however, in
the same treatise Aristotle displays considerable argumentative effort in
order to show human virtue in its non-identity with respect to the virtue
of the citizen. As he says,

the virtue of a citizen must be referred to the government [polite©an]. Accord-
ingly, since there are many forms [e­dh] of government, it is clear that the perfect
virtue of [various] good citizens cannot be one. But we say that a man is good
according to his one perfect virtue. It is evident, then, that a virtuous citizen does
not necessarily possess the virtue of a virtuous man. (1276b30“6)
On Justice 151

Just as governments vary widely in their structures and informing values,
so do their respective projections of the perfect citizen. And, although
being a good human being may not be incompatible with excellence in
carrying out a particular function (and, hence, with being a good citi-
zen), but rather exceeds and includes the partial functions, the two may
not indicate the same. This means that, in their constitution and self-
presentation, the various manners of government only approximate the
conditions for the full attainment of human excellence, and their legal
orders only strive toward justice. At a later stage, Aristotle will say that
only in the most excellent polis, whether governed by the best citizens
(aristoi ) or by one king, would the good human being coincide with the
best citizen, for there the law would ¬nally coincide with justice, and to
be virtuous with respect to one order would entail to be virtuous with
respect to the other (1288a32“b2). Thus, while under all other forms of
government the excellence of human being and citizen do “not neces-
sarily” coincide, that is, may do so only accidentally, in the best form of
government they would coincide “of necessity” (1288a38). But the argu-
mentation lacks perspicuity in this regard. For Aristotle does not make
fully clear whether the “aristocratic” polis would be a hypothesis or a man-
ner of government humanly possible, let alone historically exempli¬ed.
Nor does he explain whether various instantiations of “the best” could
admit of variations and peculiarities or, on the contrary, whether “the
best” would by de¬nition designate an invariable legislative order and
communal organization “ thus, as it were, being “the same everywhere.”
Moreover, even if we were to leave aside these problems, Aristotle him-
self comes to a quite opposite conclusion in this same context. Rather
than stating that, in the best constituted polis, “good citizen” and “good
human being” “necessarily” signify the same, he turns to the best consti-
tuted polis precisely in order to demonstrate the non-identity of the two.
The argumentation here is twofold, if less than limpid. In the ¬rst place, it
is taken as self-evident that even the best government “cannot [ˆd…naton]
be composed only of virtuous human beings” (1276b38). In its lack of any
further elaboration, this is a striking assumption.22 Second, it is pointed
out that, even aside from the diversity among various manners of govern-
ment, within the best politeia citizens would still be unlike one another in
their proper function: “and since it is impossible for all citizens to be alike,
the virtue of a citizen and of a good man is not one” (1276b41“1277a1).

22 In light of the conclusion at 1277a4“6, the proposed emendation of adunaton into dunaton
seems altogether unconvincing.
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
152

While this statement would already, in and of itself, con¬rm the view of the
irreducibility of “political” and “human” excellence, Aristotle proceeds
to a conclusion, drawing together the two argumentative strands: “for the
virtue of a virtuous citizen should belong to each of the citizens (since
it is in this way that the state is necessarily the best), but the virtue of a
good man cannot [ˆd…naton] belong to all citizens since necessarily not
all of them are good men in a virtuous state” (1277a2“6). The argument
concerning the relation between good citizen and good human being
seems to shift from the result that the two are not necessarily identical to the
result that they are necessarily not identical. The excellence of the human
being seems as such both elusive (even unimaginable) and irreducible
with regard to the excellence pertaining to a political function. Once
again, this signals the elusiveness and irreducibility of justice with regard
to any and every juridical system. However, before considering at further
length the relation between justice and law, we must “ most succinctly “
attend to the second main sense of the word “justice.”

4.1.2. Justice as Fairness
Justice may be understood in a more “speci¬c” sense. Justice narrowly con-
strued “has the same name, for its de¬nition falls within the same genus”
(1130a34“b1). While, qua “taken as a whole” (1130a34), justice gathers
the work of all the virtues, qua speci¬c virtue it concerns acquisitions,
regulates grasping. In this sense, it indicates what is fair in exchanges.
Distinguishing the two corresponding kinds of injustice, Aristotle says:
“the narrow one is concerned with honor or property or safety or some-
thing (if we had a single name) which includes all these and has as its aim
the pleasure which comes from gain, while the other [the wide one] is
concerned with all the things with which someone virtuous is concerned”
(1130b2“5). Again, the just as the fair is related to the just as the lawful
as a part to the whole (1130b12“13).
Justice as that which is fair indicates balance in relating to one another,
in giving and taking: giving or taking neither too much nor too little. It
expresses a kind of mean, of harmony or measure in exchanges. More
precisely still, as we shall see, it entails reciprocity proportional to indi-
vidual worth. These are the features involved in Aristotle™s discussion of
the distributive and corrective functions of justice thus understood:


One kind of justice in the narrow sense [kat‡ m”rov], and of what is just accord-
ing to this justice, concerns itself with the distributions [dianoma±v] of honors or
property or the other things that are to be shared by the members of the polis
On Justice 153

(for it is these who may be so related that some of them possess a fair share and
others an unfair share). Another kind is that whose aim is to correct [the wrongs]
[diorqwtik»n] done in exchanges [sunall†gmasi], and it has two parts; for of
exchanges some are voluntary but others involuntary. (1130b30“1131a3)

As distribution, dianom¯, justice regulates (nomos) the space of interac-
e
tion, the space in between (dia); it structures transmission and reception
in the exchanges among community members, thus constituting, in a
manner of speaking, the nervous system of the communal organism.
As correction, justice attempts to make right, orthos, various manners of
wrong-doing; it seeks to repair what was broken through unbalanced or
violating interactions, to heal what was wounded, by punishing the perpe-
trators and compensating those who were damaged. If it is impossible to
restore the situation prior to the injustice, if signs and scars are bound to
remain, corrective justice nevertheless seeks to re-establish some kind of
order, so that the organism may plausibly live on. In this twofold modal-
ity, justice is disclosed as that which holds the polis together, which keeps
the organism of the polis alive, uni¬ed, and functioning effectively. While
distribution entails sharing in advantages and responsibilities (whether
material or otherwise) in the right proportion and, hence, establishes
normal interaction, correction means making unjust interactions just,
bringing them back to sustainability.23 It is worth following Aristotle™s
catalogue of the exchanges, voluntary as well as involuntary, that do or
may require correction:
Voluntary exchanges are such things as sale, purchase, loan, security, use of prop-
erty loaned, deposit, and hiring; and they are said to be voluntary, since they are
initiated voluntarily. Of involuntary exchanges, (a) some are clandestine, such
as theft, adultery, poisoning, procuring, enticing slaves away from their masters,
assassination, and false witness, but (b) others are violent, such as assault, impris-
onment, murder, seizure, injury, defamation, and besmirching. (1131a3“9)

Assumed in this context is the measurability of the various matters to
be distributed or corrected, along with the calculability of the relative
worth of those involved in the distribution or correction. Enjoying gains
or undergoing losses, even in cases such as the in¬‚iction of emotional
pain or taking someone™s life, is taken to be a reckonable matter, and
so is the assessment of one™s character in terms of merit, standing, and
entitlement. In other words, Aristotle is presuming, and thereby positing,
the convertibility of quality into quantity, for the sake of equalization, that

23 See G. Koumakis, “Die ˜korrigierende™ Gerechtigkeit bei Aristoteles,” Dodone 14, no.3
(1985): 21“31.
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
154

is, of establishing equality not based on number (each human being as
one) but on worth:

the just is necessarily a mean [m”son], and fair [­son], and in relation to something,
and for certain persons. . . . The just, then, necessarily depends on at least four
things; for the persons to whom it happens are two, and the things are distributed
into two [parts]. And it is the same equality that is with respect to the persons and
with respect to the things, for as the latter are related, so are the former, for if
the former are not equal, they will not have equal parts. Again, this is clear from
what happens with respect to merit. (1131a16“25)

We notice here, once more, Aristotle™s reluctance to consider human
beings in terms of numerical equality, that is, of presuming homoge-
neous rights simply in virtue of being a human being, of counting as
one. On the contrary, he suggests, in each case human beings must be
subjected to an axiological assessment. Only thus may interactions be
regulated in a fair way. The rule cannot be the mechanical reciprocation
of whatever one receives or undergoes: “To take an example, if a mag-
istrate [ˆrcŸn ›cwn] strikes another, he should not be struck in return,
but if someone strikes a magistrate [Šrconta], he should not only be
struck in return, but also be punished” (1132b28“30). This is so even
in light of the dif¬culties involved in such a quanti¬cation “ dif¬culties
whose rami¬cations we will consider only most tangentially, as they clearly
exceed the scope of this study. Let us simply notice Aristotle™s own obser-
vation that “all agree that what is just in distribution should be according
to merit [ˆx©an] of some sort, but not everyone means the same merit”
(1131a25“7). The agreement that merit should ¬gure in the evaluation of
a given situation does not at all imply the self-evidence of what this would
mean. The issue of merit, thus, is bound to be variously contended in
the political arena: “democrats assert that this is freedom, oligarchs that
it is wealth, others that it is high lineage, and aristocrats that it is virtue”
(1131a27“9).24 Yet regardless of the problems involved in practicing this
kind of calculus, it is maintained that “what is just, then, is something

24 See L. Guidi, “Sulla giustizia distributiva,” Studium (1940): 349“99; William Mathie, “Polit-
ical and Distributive Justice in the Political Science of Aristotle,” Review of Politics 49
(1987): 59“84; William Mathie, “Justice and the Question of Regimes in Ancient and
Modern Political Philosophy,” Canadian Journal of Political Science 9 (1976): 449“63; and
D. Keyt, “Distributive Justice in Aristotle™s Ethics and Politics,” Topoi 4 (1985): 23“45. The
latter article appears in a conspicuously revised version under the title “Aristotle™s Theory
of Distributive Justice,” in D. Keyt and Fred D. Miller, Jr., eds., A Companion to Aristotle™s
Politics (Oxford: Blackwell, 1991), 238“78. See also D. McKerlie, “Aristotle™s Theory of
Justice,” Southern Journal of Philosophy 39 (2001).
On Justice 155

in a proportion of some sort [ˆn†log»n ti], for a proportion [ˆnalog©a]
is a property not merely of numbers with units as elements [monadiko“
ˆriqmo“], but of numbers as a whole; for it is an equality of ratios [«s»thv
–stª l»gwn], and it is in at least four terms” (1131a29“32). According
to that which is just, one should give and receive in proportion to one™s
value.
Thus, even if complicated by the assumption that not all human beings
may carry equal weight and worth, the practice of justice (whether of
granting or reestablishing justice) is presented as a matter of reckon-
ing. Although no numerical reciprocity is assumed between two people
interacting, it is nevertheless the case that a common ground is posited
underlying the interaction, a shared continuum involving the commensu-
rability of the experiences on both sides of an exchange. Even the abysmal
discontinuity between the victim and the perpetrator of a crime seems
to leave open the possibility of being overcome, of adequate reparation.
In turn, the hypothesis of calculability and commensurability across the
most profound differences presupposes the logic of the marketplace, the
possibility of evaluating anything in terms of quantity. Both the attribution
of value and that of price operate according to this logic. Everything can
be brought back to a basic unit of exchange, so that exchange may be con-
trolled and kept ¬‚uid, current. This is precisely what currency does. In this
way, thanks to justice as fairness and the legal administration thereof, the
human gathering comes to acquire a stabilizing homogeneity: it becomes
a polis. Polis bespeaks the communal fabric into which differences and dis-
aggregating drives, however radical, are woven together. Thanks to justice
thus understood, ¬ssures within the community may be mended. Justice
is revealed as a principle of cohesion.
Aristotle makes the connection between the administration of justice
and mercantile operations explicit:

In view of this, all things should have a price on them; for in this way an exchange
[ˆllagž] is always [possible], and if so, also an association [of human beings]. A
coin [n»misma], then, like a measure [m”tron], by making [things] commensurate
[s…mmetra], equalizes [«s†zei] [them]; for neither would an association of human
beings be without exchange, nor exchange without equalization, nor equalization
without commensurability. (1133b15“19)

The coin, nomisma, is the rule, nomos, common to all, that into which
everything can be converted, by reference to which everything can be
counted, measured, and regulated. The coin or exchange unit, then,
grants the appropriate circulation (and, accordingly, transformation) of
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
156

energy and resources within the body politic.25 Accordingly, exchange in
all its guises and community emerge as coextensive. Once again, Aristotle
insists on justice as the computation and observation of proportion in
transactions, and on its concomitant role in animating the polis, making
it cohere, uni¬ed and alive:

in associations for exchange, that which is reciprocally just and holds [human
beings] together [sun”cei] is not the one according to equality but the one accord-
ing to proportion [kat¬ ˆnalog©an]; for it is by an action that is reciprocally propor-
tional [ˆntipoie±n g‡r ˆn†logon] that a polis continues to hold together [summ”nei].
For what [human beings] seek is either to return something bad “ otherwise they
consider their position as one of slavery “ or that which is good [t¼ e”], failing
which there can be no give-and-take [met†dosiv]; and it is by give-and-take that
[human beings] hold together [summ”nousin]. (1132b32“1133a3)

However, this line of re¬‚ection concludes with a certain overcoming
of the mercantile logic that contemplates the reducibility of all mat-
ters exchanged to a price, of all people involved to a quanti¬able rele-
vance, and of all exchanges to proportionally equalized giving and taking.
Immediately after stating that it is by give-and-take, by returning what is
owed and receiving back what was given, that human relations are insti-
tuted and stabilized, Aristotle adds: “And it is in view of this that [human
beings] set up the temple of the Graces [Car©twn] in prominent places
[–mpodÜn], so that [human beings] may give back [ˆntap»dosiv], for a
proper mark of grace is this: to return a service to one who has shown
grace, and later to take the initiative in showing grace” (1133a3“6). In the
most comprehensive sense, then, justice does not simply name returning
what was received. Beyond the mere re-balancing of a debt by paying
it back, justice, and hence the strength and constancy of a communal
bond, bespeaks the availability to giving more, to giving spontaneously,
graciously, without owing or being forced to do so. Above and beyond
making even uneven exchanges and honoring what is due in transactions,
justice names the gratuitous initiative of solidarity, the acknowledgment
of a togetherness that far exceeds all calculation. The occurrences of
grace thus understood hinder the mechanical reproduction of calcula-
ble exchange; indeed, they constitute irruptions into it and interruptions
of it.

25 See Gianfranco Lotito, “Aristotele su moneta scambio bisogni,” Materiali e discussioni per
l™analisi dei testi classici 4, 5, and 6 (1980“1): 125“80, 27“85, and 9“69, respectively.
On Justice 157

4.2. “What Is Just without Quali¬cation”
4.2.1. Political Justice between Law and Nature
Before returning to the central discussion of unquali¬ed justice and
its irreducibility to law, we must attend to a remarkable terminological
proliferation introduced in Nicomachean Ethics Epsilon 6“7 (1134a17“
1135a15).26 This segment proves to be exceptionally dense and worth
examining closely.
After considering the phenomenon of justice in its distributive and
corrective functions, Aristotle recalls the main task at hand:

We have stated previously how reciprocity is related to what is just; but it must not
escape us that what is sought is the just without quali¬cation and the politically just
[kaª t¼ ‰pl¤v d©kaion kaª t¼ politik¼n d©kaion]. This is among those who share a life
in common oriented toward self-suf¬ciency and who are free and equal, whether
according to proportion [kat¬ ˆnalog©an] or according to number. So what applies
to those who do not possess these prerogatives is not what is politically just but
only what is just in a quali¬ed way or in virtue of some likeness [kaq ¬ ¾moi»thta];
for what is just [without quali¬cation] belongs to those who come under the law
also, and the law applies to situations where there may be injustice, for a verdict
is a judgment [d©kh kr©siv] of what is just or unjust. (1134a25“32)

The categories of what is just “without quali¬cation” and what is just “polit-
ically” are announced, yet left undeveloped in the thrust of the discussion.
It is, subsequently, unclear whether they are simply juxtaposed or, on the
contrary, indicated in their synonymity. What can and should be empha-
sized is that the pair of unquali¬ed (simple, absolute) and political justice
does not lend itself to being superimposed to the previously considered
pair of complete (comprehensive) and partial (particular) justice. Polit-
ical justice regards the citizens of a polis, those who are equal, free, and
pursuing a self-suf¬cient life “ those who “by nature live according to law”
(1134b15). Political justice, thus, articulates itself in virtue of and as a body
of laws and norms. Therefore, if presents the same problems diagnosed
earlier about legality. Legality or, broadly speaking, normativity is clearly
irreducible to a narrow understanding of justice as fairness, whether dis-
tributive or corrective. This is especially perspicuous in passages such as
1129b12“25, 1130b2“5, and 1130b23“5, stating that the laws prescribe

26 It has been argued that 1134a24“1135a8 may be the insertion, into the lecture notes
constituting the Nicomachean Ethics, of a page from an earlier exoteric text by Aristotle,
possibly the dialogue Per` dikaiosun¯s. See, e.g., Gianfrancesco Zanetti, La nozione di giustizia
± ´e
in Aristotele (Bologna: Il Mulino, 1993), 32“5.
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
158

the practice of the virtues, a certain way of living, and do not merely reg-
ulate exchanges. At the same time, as pointed out above, legality may not
simply coincide with justice in the comprehensive sense as such. Thus,
political justice, in its legal or normative expression, both exceeds the
narrower sense of justice and falls short of justice in its complete sense.
Rather than corresponding to partial and complete justice, the juxtapo-
sition of political and absolute justice brings to the fore, yet again, the
simultaneous association and irreducibility of legality and justice as such.
Rather than in terms of part to whole, political justice (legality) appears
to be related to justice as such in terms of asymptotic approximation, of a
striving toward perfection, completion, and accomplishment that would
bespeak the identity of law and justice.
If, on the one hand, the relation between political and absolute justice
may not be a matter of pure disjunction, the hypothesis of their simple
conjunction or synonymity appears to be problematic as well. This is so
for reasons that exceed the mentioned irreducibility of justice to law.
The hypothesis of the co-extensiveness of what is just simply (hapl¯s) and
o
the politically just (the just pertaining to those whose relations are struc-
tured by the law) presents problems because political justice, indeed, the
category of the political thus construed, is not all-inclusive. As pointed
out above, political justice embraces the lives and interactions of citi-
zens. Consequently, it does not include those who fail to reach the status
of free male adulthood, particularly women, children, and slaves “ and,
hence, the domains of the familial and the economic. Indeed, vertical
relations and, in general, matters pertaining to the family seem not to
be a part of political justice. And yet, in the very context in which Aris-
totle observes such an exclusion, thus intimating the limited domain of
political justice, the identity of political and “simple” justice seems to be
af¬rmed:

What is just for a master [despotik¼n] or a father [patrik¼n], on the other hand, is
not the same [as what is just for citizens] but is similar [‚moion] to it; for there can
be no unquali¬ed injustice [ˆdik©a pr¼v t‡ aËto“ ‰pl¤v] toward what belongs
to oneself since a man™s possession or child (till it reaches the age when it becomes
separate) is like a part of himself. . . . Hence what is just or unjust [for a mas-
ter or a father] is not political; for the politically just or unjust was stated to
be according to law [kat‡ n»mon] and to be among those who by nature live
according to law [–n o³v –pef…kei e²nai n»mov], and these were stated to be equal
in ruling and being ruled. Hence, what is just is toward one™s wife more than
toward one™s children or possessions, for this is what is just in a household
[t¼ o«konomik¼n d©kaion]; but this, too, is distinct from what is politically just.
(1134b9“18)
On Justice 159

Here, what is just in hierarchical relations (the “economic just”) is shown
to lie outside the politically just as well as the simply (unquali¬edly) just,
as though in order to intimate their identity. In addition to this dif¬-
culty, we should note that even these domains said to be excluded from
unquali¬ed justice and/or political justice, that is, from the ¬eld of legal-
ity, are regulated by laws. For even the relations among those who are
unequal (those cases in which the condition of inequality is normatively
inscribed, i.e., not brought about by an unjust deed, accidentally) are reg-
ulated by law. To be sure, here the function of the law is not so much the
preservation of reciprocity or the re-establishment of numerical equality,
but, rather, guarding the inequalities prescribed and instituted. Indeed,
even within the household, the oikos, Aristotle recognizes nomos at work,
whether understood as customary structures or laws. The justice pertain-
ing to this domain he calls oikonomik¯. Following these remarks, we may
e
conclude that, as a whole, legality is irreducible to political justice con-
strued as the regulation of the interactions among citizens.
In the ¬nal analysis, what remains most perplexing in these passages
is precisely the suggestion of the coinciding of legality and political (let
alone unquali¬ed) justice. In the ¬rst place, as was just emphasized, legal-
ity seems to exceed the domain of norms regulating citizenry. Second,
and on altogether Aristotelian grounds, the political itself would seem to
exceed the legal. For the polis (not this or that politeia, not a polis in its
unique genesis or constitution, but the polis as such) is by nature, and this
means that it is irreducible to convention, to the dimension of the nomikos,
of customary as well as formal or juridical norms. Convention is always
this “ singular and historically determined. This is so even if convention
simultaneously tends to understand and impose itself as general, abstract,
even “natural” “ if it must at all command authoritatively. Its authoritative
command seems structurally to rest on the surreptitious denial, indeed,
the betrayal of singularity, above all its own. The somehow arbitrary, ¬nite
character of the legal or conventional is often covered over or forgotten:
it is in this way that convention preserves and enforces itself.
In line with these concerns regarding the irreducibility of polis to nomos,
Aristotle introduces yet another speci¬cation, effectively interrupting or
qualifying the identity of political and legal justice. The category of the
natural is brought into the discussion:


That which is politically just may be natural [fusik»n] or legal. It is natural if it
has the same power [d…namin] everywhere and is not subject to what one thinks of
it [t doke±n] or not; it is legal if originally it makes no difference whether it takes
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
160

one form or another but, after a form is posited, it does make a difference, e.g.,
the speci¬cation that a prisoner™s ransom shall be one mina, or that a goat shall be
sacri¬ced and not two sheep, and in addition, all laws passed for individual cases,
like that concerning a sacri¬ce in honor of Brasydas or any particular decree.
(1134b18“24)

The “naturally” just is that which is common to all, despite differences
in language, formation, and articulation. The virtually arbitrary comes
to supplement nature there where nature provides no clear direction.
In this sense, then, political justice is the work of integration of natural
and conventional motifs. Just as (1) logos comes to be for the most part
through teaching but is irreducible to it, so (2) the politically just involves
both a natural and a legal or conventional dimension. The former is
“mostly” acquired through participation in the community of dialogos, in
the exercise and practice of logos. The latter is “mostly” acquired through
participation in the community of practices and subtending legislative-
normative structures. Both exhibit a certain excess vis-` -vis any speci¬c
a
discourse or context (this particular dialogue, this particular set of prac-
tices). But, of course, logos and justice do not merely enjoy structurally
parallel developments: for the explication of justice, in fact, the institu-
tion of justice as such is crucially a matter of logos, of the spoken practices
and psychological powers signi¬ed by this single word.
Because structure is essential to communal practices, customary forma-
tions, once established, require the relative stability approximating that
of nature. Aristotle is eager to underline, however, that the acknowledg-
ment of the twofold character of political justice, indeed, of the political
as such, entails by no means the contrast between natural immobility
and conventional instability. On the contrary, the politically just is said to
involve both natural and customary dimensions despite its evident overall
variability, ¬‚uctuation in formulation, and so on. Indeed, with regard to
things pertaining to justice and, broadly speaking, to ¯thos, nature appears
e
to be no less subject to change than human customs:

There are some who think that all kinds of justice are such as these [i.e., legal],
in view of the fact that what is by nature is unchangeable and has the same power
everywhere, like ¬re, which burns here as well as in Persia, but that things which
are just are observed to be subject to change. Such is not the case, however,
although there is a sense in which this is true. Perhaps among the gods, at least,
this is not the case at all, but among us there is something that is just by nature,
even though all of what is just is subject to change. Nevertheless, some of what is just is
by nature, some not by nature. Now of things which can be otherwise, what kind
are by nature and what kind are not by nature but by law or convention, if indeed
On Justice 161

they are alike in being both subject to change, is clear from the examples that
follow; and the same distinction applies to the other cases. The right hand is by
nature stronger, although it is possible for everyone to become ambidextrous. As
for the things that are just by convention or expediency, they are like standard
measures; for measures of wine or of corn are not everywhere equal but larger on
wholesale and smaller in retail markets. Similarly, what is just according to human
beings and not by nature is not the same everywhere, since forms of government,
too, are not all the same; nevertheless, there is only one form of government
which is by nature the best everywhere. (1134b25“1135a5; emphasis added)


Nature presents a distinctive plasticity: it can be modi¬ed through
repeated practice, replaced by another, a “second” nature. Even more
remarkably, though the naturally just has “the same power everywhere,”
it manifests itself in different ways, at different times and places, if it is true
that “all of what is just is subject to change.” The “same power” takes place
and form (becomes actual, enacted) in irreducible ways. This means that,
while something named the “naturally just” is liminally intuited as “the
same everywhere,” it actually qua identical has no place anywhere “ just
as the “one form of government which is the best everywhere,” the excel-
lence in political constitution that is said to be unique and self-identical,
is nowhere to be found.
The just by nature, then, is not unchangeable “ or, minimally, it is
not recognized as such. Again, the point here is manifestly not whether
or not “natural laws” (as distinct from natural phenomena) would be
immutable. Indeed, the very distinction between phenomenon and
underlying “law” or cause can hardly be posited, given the elusiveness
and unintelligibility of the “same everywhere.” Rather, at stake is showing
that even that which is, in the realm of ethics, by nature, is not changeless,
not uniformly manifest, not manifest in one form. Indeed, there may be
nothing changeless in ethical matters “ neither that which is by nature
nor, a fortiori, that which is legal or conventional.
Thus, the reference to nature here should not be read as a turn to a
sanctioning ground, as a “naturalizing” move that would found the system
of legal justice and cast laws in their immobility, ¬xity, and absoluteness.
This move amounts, at most, to inserting laws into the context of nature,
which involves motion and transformation “ introducing laws into the
motility or dynamism of nature. Aristotle refuses to choose between the
two dichotomous conceptions of nature, as either (1) the random, indif-
ferent, and unfair, against which human laws would provide the necessary
protection, or (2) the static horizon grounding all self-enforcement and
any authority claiming to carry the sanction and necessitating force of
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
162

the natural. In this connection, we observe Aristotle™s desire to transcend
both super¬cial relativism and jus naturae in its dogmatic essentialism. At
the very least, we recognize his desire to reach beyond facile arbitrariness
as well as his inability simply to identify immutable, natural foundations for
ethical-legal matters.27 In its unfolding, this meditation discloses, articu-
lates, and keeps open a space between these extremes. The meditation
on justice results in an attempt at doing justice to human experience, to
the mobility yet composure of life.

4.2.2. The Aporia of Justice
We ¬nally return to the perplexing equation of justice, as a whole and
as such, with law. Left unquali¬ed, such an equation would attribute
unlimited power to the lawgivers and judges. This scenario reminds us of
Plato™s Republic 1, in which Thrasymachus argues that justice is what the
rulers (those in power, determining, if not making, the laws) decide it to
be. The sophist maintains, in other words, the purely arbitrary status of
justice: it is the laws furthering the advantage of those who make them,
of the stronger, the rulers themselves.
We saw that the politically just can be analyzed into a natural and a legal
aspect. The natural may be understood as that within which any singular
legal construct is nestled, and by which it is necessitated. It indicates the
necessity of the polis and the order it names, and hence the necessarily
political character of human beings, due to the lack of self-suf¬ciency
distinguishing them from gods and beasts. Such a “natural ground” of
the just, however, allows for inde¬nitely many legal interpretations, that
is, contemplates the legal precisely in its formal multiplicity. Just as logos,
justice is indeed said (spoken, articulated, enacted) in many ways: it both
comes to be in many ways and is irreducible to any of them. Thus, the
transcendence of justice with regard to the texts and contexts of legality
will at once signify the transcendence of logos with regard to any human
instantiation thereof, that is, the transcendence of logos with regard to
itself.


27 Already Max Salomon diagnosed the problems involved in reading a theory of jus naturale
into the Aristotelian text. By this author, see Der Begriff der Gerechtigkeit bei Aristoteles (Leiden:
Sijthoff, 1937; rpt., New York: Arno, 1979), 55; “Le droit naturel chez Aristote,” Archives
de philosophie du droit et de sociologie juridique 7, nos. 3“4 (1937): 120“7; and “Der Begriff des
Naturrechts in der ˜Grossen Ethik,™” Archiv f¨ r Rechts- und Sozialphilosophie 41 (1954“5):
u
422“35. See also Bernard Yack, “Natural Right and Aristotle™s Understanding of Justice,”
Political Theory 18, no 2 (May 1990): 216“37, and P. Destr´ e, “Aristote et la question du
e
droit naturel (Eth. Nic., V, 10, 1134b18“1135a5),” Phronesis 45, no.3 (August 2000).
On Justice 163

It was intimated above that it is not simply because of the variety of gov-
ernments or constitutions and the elusiveness of the “best” form thereof,
that the authority of laws can consistently be diagnosed as discrepant
with respect to justice itself. Actually, even the falling short of govern-
ments vis-` -vis the rule of the best may hardly be anything “simple,” an
a
unfortunate contingency. Rather, in their inevitability such shortcomings
may reveal an essential trait of the political as such (of the coming into
being of human togetherness) and, at the same time, the ¬‚eeting char-
acter of that which would abide, “the same everywhere.” But aside from
these considerations, we must now show that it is the law as such, as a
written text, which appears intrinsically, essentially, and necessarily un¬t
to coincide with justice. For even in the “perfect” or “best” polis, Aristo-
tle suggests, the laws would have a problematic status. It is the genetic
and operative horizon of legality (how laws are given and subsequently
enforced, i.e., read and interpreted) that presents dif¬culties. As we shall
see, the coming into being and functioning of the law has to do with
the work of legislator and judge alike, that is, with the ¬gures of the
one who institutes the law and the one who, in virtue of his or her liv-
ing presence, re-enacts the law, enlivens it and brings it to life, to the
speci¬c circumstances of life. Such operations prove to be eminently
questionable.
The examination of the discrepancy between law and justice is forced
by a perceived inability of the law to do justice to action, to discern its
in¬nite richness and singularity. Aristotle notes that “if one gave a judg-
ment in ignorance,” that is, being unable to contemplate the details of
an action, “neither does he act unjustly according to what is legally just
nor is his judgment unjust (though his judgment is unjust in a certain
sense, for what is legally just is distinct from what is just in the ¬rst sense)”
(1136b32“5). In other words, if one would evaluate a circumstance with-
out grasping its particular features, one would in so doing adhere to the
legally just. It does, indeed, pertain to legality to predispose judgment
in ignorance of the particulars. Such an approach to the assessment of
circumstances, however, cannot but be unsatisfactory, whether in strictly
judiciary contexts or in the process of evaluation and judgment involved
in all deliberation. For, while not unjust according to the legal text, judg-
ment “in ignorance” of the particulars is hardly just vis-` -vis the circum-
a
stance considered. It amounts to a somewhat mechanical application of
the established rule. This is why the law as “universal” statement needs to
be supplemented and perfected, indeed, corrected there where it cannot
by de¬nition be adequate.
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
164

The discussion of the equitable and equity, epieikeia, belongs in this
set of concerns.28 It does indeed appear that, in its function as a correc-
tive of law, equity more closely approximates justice, although it is not
unquali¬edly the same as justice (1137a34“5). The thrust of the re¬‚ec-
tion indicates that just action or evaluation stems from a source irre-
ducible to law: even there where legislation does not reach, when facing
unlegislated details or circumstances not legally contemplated, one is not
without guidance. As such a guidance, equity surpasses legal directions,
transcends them “ indeed, it works in their absence, supplementing their
limitations:
the equitable is just although it is better than one sort of what is just, and it is
better than what is just not by coming under another genus. So the just and
the equitable are the same, and though both of them are good [spouda©oin],
the equitable is superior [kre±tton]. What causes the problem [ˆpor©an] is the
fact that the equitable is just not according to law but as something which is a
correction [–pan»rqwma] of what is legally just. (1137b8“13)

The privileged relationship of law to justice is, thus, called into question
due to some intrinsic limitation inherent in law as such. Aristotle seems
to show law at once in its necessity and impossibility or, at least, in its necessary
insuf¬ciency vis-` -vis singularity. It could also be said that it is the concrete
a
situation that is inherently ¬‚awed because of its over¬‚owing, irreducible
particularity, but this would hardly make a difference. For the problem
or ¬‚aw at stake here is the inability of the law to contain, contemplate,
and include the practical manifold:
The cause [of the equitable being better than, or a correction of, the legally just]
is the fact that all laws are according to the whole [in statement] but about some
things there is no speaking correctly according to the whole. So in cases in which
it is necessary to speak according to the whole but not possible to do so correctly, the
law grasps what is mostly or in the majority of cases correct, without ignoring that
there is error in so doing [t¼ ‰martan»menon]. And in doing this, it is nonetheless
correct, for the error lies neither in the statement of the law nor in the lawgiver,
but in the nature of the matter at stake; for right away the matter [Ìlh] of actions
[which are performed] is of such a nature. (1137b13“20; emphasis added)

The problem or ¬‚aw at stake is, then, the discrepancy between the uni-
versality of the law and the subject matter to be legally regulated. The
impossibility in principle to close the gap between universality of statement and
materiality of action is the ¬‚aw. This should be underlined: the law™s limit
does not or does not simply lie in its falling short of the universal, that

28 See Giulio Maria Chiodi, Equit` . La categoria regolativa del diritto (Naples: Guida, 1989).
a
On Justice 165

is, in its partiality or particularity. Rather, precisely because of its claimed
universality, the law falls short of the overabundance of the practical and
the material. The universal statement proves to be limited, one-sided, as
it were, vis-` -vis life in its open, in(de)¬nite character. Consequently, jus-
a
tice comes to be illuminated not as the universal that all concrete legal
formulations would fail to capture, but, rather, as that which eludes the
universal, or at least universal formulation. Just like singularity in its teem-
ing multiplicity, justice transcends the universal. In turn, the written law
that is the fruit of political/dialectical negotiation owes its authority and
enforceability qua universal precisely to the oblivion surrounding its own
historicity and all too contextual character. The law is the instrument for
the assessment of particular circumstances, which operates in virtue of
the denial of its own circumstances. So much so, indeed, that the law even
claims not to ignore its own ignorance and error, and re-inscribes them
within the predictable. Legality or convention is always singular, contex-
tual. Yet to the extent that it must be general, abstract, in order to have
any normative power at all, legality constitutes the betrayal of singularity.
Aristotle draws the consequences of these considerations and suggests
that, precisely because perceived as not fully just, or even possibly unjust,
by de¬nition the law is subjected to ongoing revision. There belongs to
law an in¬nite process of rewriting, a process that is never over. For the law
(this writing, this logos) entails perfectibility, and therefore contestation,
transgression, and re-determination. These de¬ne the law as such. Justice
seems to exceed such a dialectical arena and ongoing debate. It names
that for the love of which the in¬nite debate takes place:
So when the law makes a universal statement [about something] but a case arises
which does not come under that universal statement, then it is right to correct
the omission made by the legislator when he left some error in his unquali¬ed
statement; for the legislator himself would have made that correction had he
been present, or he would have legislated accordingly if he had known. Thus
the equitable is just; and it is better than a certain kind of what is just, not the
unquali¬ed just but that which has error because it is stated in an unquali¬ed
manner. And this is the nature of the equitable, namely, a correction of the law
insofar as the law errs because it is [or must be] stated universally. And the reason
why not all things come under the law is this, that it is impossible to lay down a
law for some things, and so a decree is needed. For of that which is inde¬nite, the
rule too is inde¬nite, like the leaden rule [kanÛn] used in Lesbian construction;
for the rule here is not rigid but adapts itself to the shape of the stone, and so
does the decree when applied to its subject matter [pr†gmata]. (1137b20“33)

Stating its pronouncements in an unquali¬ed manner, the law is always
exposed to the possibility of missing the unquali¬ed. Suggested here is a
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
166

certain ineffability of the unquali¬ed, of justice in the unquali¬ed sense:
indeed, it is in its unquali¬ed mode that a statement errs. Again, the impo-
tence or inability of the law before actions not exactly corresponding to
universal typologies is not a contingent, unfortunate incident. It de¬nes
the law essentially and as such. In the Politics, Aristotle reformulates this
point in light of the discussion of rule of law:

no other thing than the laws, when rightly laid down, should be the authority
[kur©ouv], and the ruler [Šrconta], whether he be one or whether there be many,
should have authority over matters about which laws cannot be stated with pre-
cision, because it is not easy for laws, which are stated according to the whole, to
clarify every particular. What is not yet clear, however, is what such laws which are
rightly laid down should be. . . . (1282b2“8)

When error is detected in the enforcement of the universal legal state-
ment, the appropriate adjustments must be made. Law enforcement is
anything but the automatic application of a universal on the particular.
Rather, it is a matter of bringing the law to bear on the singular circum-
stance in such a way that the law is made alive again, recovered in its
animating intent, as though the founding insight of the legislator would
shine through again. Bringing law to bear on life means bringing law to
life again. In this sense, the intervention of the judge, of the one in power,
or of anyone called to evaluate a situation, constitutes the repetition of
the law-giving act. In every enlivening conjunction of legal text and prac-
tical circumstances, in every legal consideration infusing the law with the
intelligence that gave it origin, the founding act is re-enacted.
Thus, on the one hand, “we do not allow a human being to rule, but
the law,” because a human being tends to be greedy and self-interested or
“to become a tyrant,” while the ruler who refers to the law “is a guardian
of what is just” and “a preserver of what is fair” (1134a35“b3). And yet, on
the other hand, the law will always have involved more than preservation:
it will have demanded mindful assistance so that the vision it harbors may
be awakened and released. In thus being stirred up, its vision encounters
previously unforeseen particulars and is thereby perfected, prolonged
beyond itself. Without such a contribution on part of the human being,
the legal text, very much in accord with certain Platonic pronouncements
(Phaedrus 278b“d), is dead letter, a universal formulation disconnected
from this life. It is in this operation, whereby a law is conceived together
with a particular situation to be assessed, that we catch a glimpse of justice.
It is not the law that is justice, but the work of judgment, the incessant
On Justice 167

assessment of practical con¬gurations that rests on the intimate under-
standing of them. In other words: the assessment of life taking place in
life. This is why Aristotle says that “to go to a judge is to go to what is just,
for a judge tends to be something which is just and ensouled [d©kaion
›myucon]” (1132a21“2). Again, in the Politics we are told that, while the
rule of law may be preferred because “passion does not belong in law,
whereas it necessarily resides in every human soul,” still “it might be
said, conversely, that deliberation concerning particulars is more beau-
tiful” (1286a19“22). Ultimately, it is that which undergoes passions, the
human soul, that can deliberate otherwise than universally, that can intel-
ligently discern and evaluate each singular event: “It is clear, then, that
this [the best human being] must be a lawgiver and that laws must be laid
down, but that these laws should have no authority insofar as they deviate
[from equity], although in the rest of cases they should be authoritative”
(1286a23“4). Preserving the law means keeping it in line with life, lest it
go astray.
Speaking of the irreducibility of justice to law, then, means pointing
to a certain injustice (failure, error) of law and to justice as constant
revision and rewriting of the law, as the questioning of what presents
itself as above questioning if it has to have any authority at all. Justice
emerges, then, as the work of a certain deconstruction, as Derrida has also
suggested. Among other things, the aporia of justice makes it possible to
catch a further glimpse of the difference between legal and natural justice.
As we saw, the legal and the natural cannot be contrasted in terms of
mutability and constancy, respectively. For both move and change. Their
difference may perhaps be sought in the contrast between universality
(abstractness) and singularity. Nature may indeed name the whole, yet
not in the mode of universalitas. Once again, the logos speaking from
out of an intimacy with justice (with life, phusis, the phusis of praxis) is,
unlike the legal text, that articulation open to its own disarticulation and
overcoming.


4.3. The Place of Justice
From the foregoing discussion emerged a certain elusiveness or, literally,
ineffability of justice as such. In its positivity, logos seems essentially inad-
equate to capture it, which means that justice does not properly belong
in the order of eidetic or conceptual simplicity that logos aims at ¬xating.
Aristotle returns to this point in the context of a remark on the difference
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
168

between (1) being just or unjust and (2) sporadically performing a just
or unjust act:
Human beings think that it is in their power to act unjustly, and hence that it
is easy to be just also. But such is not the case; for to lie with one™s neighbor™s
wife or strike someone in the vicinity or deliver money into someone™s hand is
easy and in our power, but to do these by being disposed in a certain way [Þdª
›contav] is neither easy nor in our power. Likewise, human beings think that one
does not need to be wise [sof¼n] to know [gn¤nai] what is just and what is unjust,
since it is not hard to understand [xuni”nai] what the laws state [l”gousin]. It is
not these [the laws or what they state], however, that are just, except accidentally
[kat‡ sumbebhk»v], but the manner in which just things are done or distributed,
and to do just things in a certain manner is a greater task [›rgon] than to know
[e«d”nai] what produces health “ although even here it is easy to know that honey
and wine and hellebore and cautery and surgery heal, but to know how to use
these, and for whom, and when, etc., in bringing about health, is as much a task
as being a doctor. (1137a5“17)

Aristotle opens this re¬‚ection by gesturing toward the dif¬culty of his
earlier statement, in Book Gamma, regarding the voluntary character of
the virtues and, hence, the relative responsibility of adult human beings
vis-` vis how they act and who they have become (1114a19ff.). Once a
a
certain order of the soul is established through habituation and one holds
and comports (ekhei ) oneself in a certain manner, it is no small task, if
indeed at all feasible, to recon¬gure oneself. This is why, while performing
an occasional just act may be possible for someone unjust, truly to act
justly, that is, to become just, to reorient one™s whole being from injustice to
justice (or, for that matter, vice versa), represents an altogether different
challenge. However, what is here decisive to the present discussion is
the statement that the laws, or their pronouncements, are just only in
a secondary sense, according to an attribute. Primarily, justice is not to
be found in the laws or in their content (the prescribed actions). These
are not the locus of justice, where justice strictly speaking can be found.
Rather, justice is to be found in the how of certain actions “ not in the
prescription thereof, not even in the bare performance of them, but in
the psychological structure in which certain actions are rooted and out
of which, as though effortlessly and of their of accord, they ¬‚ow.
What is at stake in justice, then, is not a merely formal knowledge
of what might be just, but the capacity for carrying out a certain action
in alignment with a certain preparation and predisposition to justice.
This, quite crucially, entails the ability not simply to apply an abstract
knowledge of justice, but to assess, to judge, in every single case, what the
best, that is, just, course of action may be. This much is revealed by the
On Justice 169

comparison with the art of healing, which is altogether irreducible to the
abstract knowledge of that which heals. It appears, consequently, that it is
in action, in life itself, that justice properly understood resides. In¬nitely
receding before the advancing of the law, ultimately inaccessible to legal
statements, justice is a matter of aliveness, lives in action “ in a certain
manner or quality of action or life.
Equally to be underlined is the suggestion that wisdom, sophia, may
not be merely a matter of understanding laws, of formal comprehension.
Just as it is not the same to be just and to perform a just act, so it is not
the same to know (gign¯skein) what is just and to understand (xunienai )
o
the statements of the laws. Wisdom is associated with the former, with the
ability to discern the just from the unjust, and is a matter of knowledge,
gn¯sis, in the broadest sense. Being wise, even more than genuinely being
o
a doctor, means possessing a ¬rm knowledge, on the basis of habitual
practice and experience, of how to respond to the unique demands of any
single circumstance. A formulaic cognition of what the laws command
will never constitute an adequate basis for such a skilled and opportune
response. Indeed, if abstract knowledge were suf¬cient to propel one
toward a certain behavior, one would be in the position of determining
oneself to act in such and such way at will. However, habitual formation is a
much more stable ground of practical determination. Aristotle reiterates
this point, as though to insist on its relevance:

For that very reason, too, human beings think that it is in the power of someone
just to act unjustly . . . since the just one is not less but even more able to do each
of these unjust things; for he is able to lie with a woman or to strike someone, and
a brave man can throw away his shield and turn to ¬‚ight in this or that direction.
Yet, to act in a cowardly way or unjustly is not simply to do these things, except
accidentally [kat‡ sumbebhk»v], but to do so by being disposed in a certain manner
[Þdª ›conta], just as to practice medicine or to heal is not just to use or not use
a knife, not just to give or not to give medicine, but to do so in such-and-such a
manner [ˆll‡ t¼ Þdª]. (1137a17“25)

Situating justice, the exercise of virtue as a whole, in action means empha-
sizing that the pursuit of the good as such is a matter of practice, irre-
ducible to mere intellectual contemplation. Identifying justice with a cer-
tain how of action, rooted in practical formation, means understanding
that the orientation to the good will never simply have been a matter of
rational grasp “ that, rather, the turn to the good rests on one™s ethical
constitution and the rational clari¬cation (and concomitant systematic
development) of such a turn will necessarily have been successive to it. As
we shall see, it is the appropriate (i.e., excellent) kind of habituation that
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
170

makes the end in view right beforehand, which originarily discloses the
good to be pursued. In lack of such a desirable formation, speculation
will be deprived of meaning, that is, super¬cial, disconnected from life.
After all, Aristotle had already anticipated in Book Alpha that “in none
of human deeds [›rgwn] is there so much stability [bebai»thv] as in the
activities [–nerge©av] according to virtue, which appear to be more endur-
ing [monimÛterai] than the sciences themselves” (1100b12“15). The next
chapter, focusing on Aristotle™s discussion of the intellectual virtues, will
provide ample opportunity to deepen these outcomes.


5. the virtues of the intellect
The previous investigation regarding justice has cast light on the limits of
language as well as purely rational determination, logos, and on the exu-
berance of life in its sensible and practical dimensions.29 This does not
simplistically mean that, because things pertaining to human comport-
ment are mutable and ¬‚uctuating, there can be neither purely contempla-
tive grasp nor geometrically precise exposition of them, while, regarding
other ¬elds of inquiry, such a grasp and exposition would remain viable
and retain their primacy. Rather, it means that the speculative endeavor
cannot not be inscribed within essentially and basically practical condi-
tions. Nor does this entail that that which pertains to life and experience
enjoys a priority merely in the order of becoming or of knowing, that is,
a genetic priority that would only recon¬rm the priority of the “meta-
physical,” as it were, in the order of being. Quite on the contrary, while
the phenomenon of life and ethical formation is to be acknowledged
in its priority vis-` -vis subsequent speculative articulations, the awareness
a
of such an ethical ground seems to come last in the order of knowing.
Indeed, the ethical condition is as such made explicit only in the properly
ethical re¬‚ection, which fully elaborates motifs incipiently raised in the
inquiries on “logic” and “¬rst philosophy.” In other words, ethics clari-
¬es and further develops the insight regarding ground and conditions
already announced in the “metaphysical” discussions but left underde-
veloped in those contexts. It is in this sense that the re¬‚ection on ethics
may be seen as ¬rst in the order of being and, hence, as ¬rst philosophy.

29 A seminal version of this section appeared under the title “The Nature of Reason and the
Sublimity of First Philosophy: Toward a Recon¬guration of Aristotelian Interpretation,”
Epoch´ 7, no 2 (Spring 2003): 223“49.
e
The Virtues of the Intellect 171

The analysis of Book Zeta will set a number of issues already noted thus
far into sharper relief. In this sense, it constitutes a culminating moment
in the present discussion. Reading this segment of the Ethics will provide
an opportunity to observe more closely the relation between the “part”
of the soul said to pertain to character and its formation and that other
“part” said to be the seat of logos. Thus, it will allow us to articulate a
more re¬ned understanding of the relation between comportment and
reason, that is, to deepen the question of the difference between agree-
ing with logos (self-actualization or self-activation according to logos) and
“having” (ekhein, hexis) logos. If it were to turn out that the two are not
ultimately distinct and self-contained, that their relation has the form of
a certain interpenetration, then we would have to call into question the
very possibility of rational autonomy, pure agency, unquali¬ed freedom,
and emancipation from body, animality, nature. Again, at stake is the rela-
tion of logos to body and animality, to the life that bears, carries it “ that
“has” it.
We saw how the ethical virtues belong to the desiring “part,” while the
intellectual ones belong to the thinking “part.” Yet we also saw that both are
a matter of practice and time. To actualize oneself according to logos entails
habituation. But having logos, too, is “mostly” (Aristotle says) a matter of
habituation, more speci¬cally of learning (Nicomachean Ethics 1103a15).
Both, then, entail experience, which belongs in the world and time, that
is, is embodied and lived. “Having” logos seems to be less a matter of mere
possession or property than a matter, again, of habit (hexis), of coming to
have “ as Aristotle intimates in the Metaphysics, in his remark on thinking
as a habit handed down to us (993b14). Now, in Book Zeta Aristotle is
focusing especially on the virtues of the intellect, on the “part” of the
soul that in itself has logos, that is the seat, domain, or proper dwelling of
logos. Logos is that thanks to which we grasp the mean, the middle point
characterizing virtuous action, which leads to and itself is happiness. But
is logos an autonomous principle, unaffected and affecting the rest of
the soul? Or is thinking always of this world, of the body, in such a way
as never to be free from this binding exchange? May thinking and its
disourse entail a dimension of passivity and affection, too?
In connection to this line of questioning, which problematizes the
viability of a clear-cut separation and hierarchical relation between the
“parts” of the soul, this investigation will encourage us to wonder about
the relation among the excellences internal, as it were, to reason, that
is, to wonder about the structure of the allegedly rational “part.” In
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
172

particular, we will be compelled to articulate an understanding of phron¯sis
e
and sophia (and, concomitantly, of praxis and the¯ria) in their belonging
o
together. At stake in doing so is the possibility of overcoming the tradi-
tional opposition of these terms, an opposition preserved even by those
thinkers who have emphasized the practical over against the theoretical
simply by inverting the order of the hierarchy.30
That Aristotle may undeniably accord a certain primacy to sophia may
not amount to a privileging of the “theoretical” understood in terms
of abstraction, that is, in terms of disembodied perception transcending
conditions human and otherwise. For if, as will be suggested below, sophia
at once embraces and is informed by phron¯sis, their differing is not a mat-
e
ter of opposition, let alone of separation. And if the theoretical is always
informed by a set of practices, by the modality of one™s comportment
to phenomena, then encountering phenomena, the world, nature in its
measureless, even transcendent, disclosure is always a matter of ¯thos.e
To give to the analysis of Book Zeta the centrality and prominence it
deserves, it will be opportune to recapitulate, in their main delineations,
a few issues already encountered in our reading of earlier moments in
the ethical discussion. They will provide the broad framework wherein
the examination of the intellectual virtues unfolds. Such an examination
vertically delves into the heretofore unanalyzed “having” of logos “ into
the belonging of logos in and to life. Let us, then, begin again.


5.1. The “Most Authoritative and Architectonic” of the “Sciences
or Faculties”
The Nicomachean Ethics opens with the statement, “Every art [t”cnh] and
every inquiry [m”qodov], and similarly every action [prŽx©v] and every
intention [proa©resiv] seems [doke±] to aim at some good [ˆgaqo“ tin¼v];
hence it was well said that the good is that at which all things aim”
(1094a1“3). The whole range of human activity, of modes of human
self-manifestation, appears to “aim at a certain good.” Nothing is left out
that would not relate to, stretch out toward, or strive for the good. At
the same time, again, we should notice the dialectical tenor of this initial
statement setting the tone for the rest of the inquiry. This opening is

30 For a recent contribution along these lines, see Christopher P. Long, “The Ontological
Reappropriation of Phron¯sis,” Continental Philosophy Review 35 (2002): 35“60. By the same
e
author, see also “The Ethical Culmination of Aristotle™s Metaphysics,” Epoch´ 8, no. 1 (Fall
e
2003): 53“72, and The Ethics of Ontology: Rethinking the Aristotelian Legacy (Albany: SUNY
Press, 2004).
The Virtues of the Intellect 173

based on consensus (sensus communis, koin¯ aisth¯sis), on common (i.e.,
e e
shared, agreed on) views. Though not assumed a-critically and, in fact,
necessitating thorough questioning and elucidation, nevertheless such a
doxic ground discloses the encompassing domain of the inquiry and pre-
scribes its course.31 The investigation ensuing can be seen as an attempt
at thoughtfully engaging the shared perception (often unthematic, even
unconscious) of the centrality of the good in human undertakings “ in
other words, at deepening the re¬‚ection concerning the pursuit of eudai-
monia, the pursuit that eudaimonia (understood as thriving, attunement,
or harmonious relation to the daimonic, to what exceeds one) itself is.32
Ethics, Aristotle observes in these preliminary remarks, is the study
of the good as ultimate ¬nality, as that which sustains and structures all
doing. Ethics pursues a knowledge, a gn¯sis of the good, the agathon that
o
culminates in to ariston: the best, as it were, highest good. As such a study,
ethics (that is to say, already, politics) presents itself in its “most authori-
tative and architectonic” character. Ethics-politics is indeed such a most
comprehensive “science or faculty,” epist¯m¯ or dunamis (1094a19ff.).33
ee
First in the order of being, ethics is, indeed, last in the order of knowl-
edge, most encompassing “ for it entails humans™ self-re¬‚exivity about
their own endeavors, their coming back full circle to re¬‚ect on their own
undertakings, most remarkably on their own re¬‚ective exercises (e.g.,
scienti¬c investigations of phusis and “beyond,” logical or rhetorical anal-
yses, or the study of the soul).
It is at this point that Aristotle introduces, albeit in an abbreviated
fashion, the psychological account that will remain a point of reference
throughout the Ethics. For the activity of the human psukh¯, its unfold-
e
ing into action, its giving itself (according to its being) in and as ¯those
is precisely what is at stake in the ethical inquiry. Indeed, it seems that,


31 Aristotle could hardly emphasize more how the dialectical “ground” of ethics demands an
appropriate methodological approach, admitting neither of generalities nor of abstrac-
tions (1094a19“b27; 1098a22“b9; 1098b10“22; 1104a1“10).
32 In terms of a fundamental orientation toward the question of the good, the concurrence
of the Ethics and Plato™s Republic should be noticed. In both cases, the good (source
of being and becoming in the Republic, that which informs and occurs as eudaimonic
growth in the Ethics) exceeds scienti¬c-theoretical perception. It is neither, in Platonic
terms, an “object” of eidetic contemplation (indeed, it is not, strictly speaking, an eidos)
nor, in Aristotelian parlance, the highest attainment of the “theoretical” life. It grants
knowledge, while remaining irreducible to it, unknown.
33 Notice the inde¬nite terminology designating the ethical discourse. Such discourse is a
kind of knowing, something humans are capable of, something for which they have the
power.
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
174

in the anthropological context, eudaimonia should be understood as the
most excellent (skilled and, in this sense, virtuous) carrying out of the
human task, ergon. But the exquisitely human ergon, far from being lim-
ited to the purely vegetative life or the life of sensation, would consist
in a certain activation (self-enactment, energeia) of the psukh¯ according
e
to reason (logos), or not without it. It is such an enactment that would
distinguish the human from other living beings (once more, we will have
to return to this). The human would be characterized, literally, by a cer-
tain soulfulness, by the fullness and spaciousness of soul not con¬ned to
bodily or sensory functions, embracing while exceeding the functioning
of the organism (which still belongs in soul, is en-souled). The activa-
tion of soul in the plenitude of its properly human power constitutes the
properly human assignment.
The psychological exploration, then, incisively con¬gures the ques-
tion of human endeavor and concomitant excellence. For, says Aristotle,
in the right proportion psychology is an integral part of ethics-politics
(1102a5“26). What thus surfaces is an understanding of the psukh¯ in itse
basically three-fold structure. This initial psychological tripartition into
metabolic life, life of the senses (sensibility), and enactment according
to reason gives rise to a division more precisely re¬‚ecting the relation
of the “parts” to logos. At a basic level, Aristotle says, the psukh¯ can be
e
seen partly as having logos, partly as a-logon. But, in turn, each of these
two “parts” presents a further division, that is, can be taken in two senses.
Let this well-known (indeed, “exoteric,” 1102a28ff.) analysis be recalled
in outline.34
The nutritive part of the soul, common to all living, is said to be purely
non-rational. The part (“nature,” 1102b14) of the soul where appetites
and, in general, desire (epithumiai, orexis) reside in a way can be said
to be irrational and driven by sensibility, but in another way seems to
participate (metekhein) in reason, for it is able to subject itself to reason
even though it does not possess it as its own. It has the capacity for the
recognition of reason as such, and this acknowledgment seems to exert a
certain compelling power over it. According to the well-known image of

34 Morion (meaning “piece,” “portion,” “constituent,” “member,” “part” in the broadest
sense) is the term Aristotle mostly employs (although not without exception, e.g.,
1102b14) to refer to the partitions of the soul. Aristotle also stipulates that, “at present,”
it is a matter of indifference whether the rational and non-rational components of the
soul be understood as separable (analogously to parts of a divisible whole) or as aspects
or modes of the same, i.e., “by nature inseparable” and appearing to be two only “to logos”
(1102a30“4).
The Virtues of the Intellect 175

¬lial piety, this part is said to be capable of following reason “like a child
listening to a father” (1103a3; also 1102b30ff.). The desirous part, then,
is in one sense irrational and in another rational. Consequently, the part
of the soul that has reason can also be viewed in two ways: as that which
has reason in a quali¬ed way, which is somewhat available to the claim of
reason (such would be the desirous, driven element) and as that which
has reason in itself (in which, properly and strictly, reason abides). This
composite articulation of the difference between the rational and the
irrational indicates their dialectical (non-contradictory) relation and, by
the same token, the dialectical relation between what is by nature and
what is not by nature.
It is according to such view of the domains of the soul that the aretai, the
dispositions denoting excellence in various modes of comportment (i.e.,
excellent habits, stable structures of the soul acquired through repeated
practice), are classi¬ed. Aristotle will devote part of Book Gamma and
Book Delta in its entirety to the so-called ethical virtues, virtues pertaining
to character (¯thos), that is, the appetitive (desiring) “region” of the soul.
e
After the discussion of justice, in Book Zeta Aristotle will turn to the
intellectual virtues (aretai diano¯tikai), virtues of (or through) the intellect
e
(nous), that is, of the part of the soul where logos dwells.35 It is on the latter
discussion that we must now focus.


5.2. The Abode of Logos
The inceptive phases of the Ethics have been schematically recalled
because, in the ¬rst place, it seemed opportune to situate the analysis of
the intellectual virtues (of reason tout court) within the broader scope of
the discussion. Second, however, having this framework starkly in view is
crucial because what was initially announced as an unproblematic struc-
tural account of the psukh¯ will, on closer inspection, occasion consid-
e
erable perplexity. Zooming into the domain of reason, with its forma-
tions and excellences, will considerably complicate what at ¬rst seemed a
relatively clear-cut schema. It will reveal the soul in its mobility, aliveness,
and irreducibility to the static, in fact, mathematical partitioning earlier
delineated. Indeed, in the course of this discussion we will ¬nd dif¬culties
analogous to those noticed in the analysis of intention and volition “ dif¬-
culties having to do with an ever ¬‚eeting and elusive distinction between

35 It should be underscored that nous already announces itself as the “environment” of logos,
reason. The two terms are far from coextensive.
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
176

rationality and desire as well as with the alleged hegemony (hierarchical
superiority) of logos.
The Book opens by referring back to previous discussions, the lat-
est of which at 1137a5ff., regarding the manner of excellent action or,
more precisely, excellence as a matter of balance between extremes. The
turn to logos is, thus, introduced speci¬cally by reference to orthos logos,
right reason. Orthos logos names the ability to reckon with the mean, that
is, to envision the most effective, appropriate way of action in order to
achieve the end in view: “Since we have stated earlier that one should
choose the mean and not excess or de¬ciency, and since the mean is
such as right reason [l»gov ¾ ½rq¼v] declares [l”gei] it to be, let us go
over this next” (1138b18“21). Indeed, Aristotle adds, “the mean . . . is in
accordance with right reason [kat‡ t¼n ½rq¼n l»gon]” (1138b23“5). It
is logos that grasps and reveals the mean, that is the way of actualizing
the end (the good, happiness), thus realizing oneself. Consequently, the
task at hand will entail a close consideration of the “having” or posses-
sion of such an endowment and the manners in which it enacts itself
excellently.
Before viewing in detail the taxonomy of the virtues pertaining to
logos, two noteworthy issues concerning the part of the soul “having”
logos should be considered at least in passing. Such issues undermine the
apparently straightforward logic of paternal authoritative speaking and
¬lial obedient listening, by revealing the highly controversial status of
the distinction between the domain of desirous sensibility and that of
reason; so much so that we may begin to wonder whether these “parts”
are indeed clearly separate and relating according to the parental model
or whether, instead, they may entertain a dialogue with one another, a
play of mutual affection making them, if not the same or indiscernible,
at the very least inseparable, involved in a bond of mutual implication.
“Mutual affection” here would indicate the mutual undergoing that binds
and uni¬es the soul. In virtue of such a mutually affective bond, the soul
could be or could become one, not in the sense of simple, but in the
sense of cohesive and in accord with itself “ united in friendship, as it
were. As the consideration of the soul of the continent and incontinent
will make especially clear, nothing less than such an attuned cohesiveness
would be required of the excellent soul.

5.2.1. Desiring Principle
First of all, in broaching this discussion (1139a18 ff.), Aristotle points
out that it is the chiasmic interpenetration of intellect (at this juncture
The Virtues of the Intellect 177

variously designated as nous, dianoia, bouleusis, logos) and desire that orig-
inates deliberate choice (hence, action, the formation of habits, and ulti-
mately the virtues) and provides the ¬nal cause (end, informing motiva-
tion). This is declared along with the exclusion of sensation, aisth¯sis, as
e
a possible principle of action: “sensation is not a principle of any action,
and this is clear from the fact that brutes have sense but do not partici-
pate in action” (1139a19“20). Action, praxis, is as distinctively human as
the “having” of logos. Quite obviously, then, the ethical re¬‚ection should
be the privileged locus for the analysis (or, in fact, self-analysis) of logos.
Now Aristotle elaborates on the intertwinement of rational and appetitive
motifs:
Now what af¬rmation and denial are to thought [diano©aƒ], pursuit and avoid-
ance are to desire [½r”xei]; so since ethical virtue is a habit through deliberate
choice [™xiv proairetikž], while deliberate choice is desire through deliberation
[Àrexiv bouleutikž], reason [l»gon] should, because of these, be true [ˆlhq¦]
and desire should be right [Àrexin ½rqžn], if indeed deliberate choice is to be
good [spouda©a], and what reason asserts [f†nai] desire should follow [diÛkein].
(1139a21“7)

If the choice directing action, and hence habituation, is to be good, both
desire and intellect must concur at their best: the latter by conveying
the truth and the former in its rightness or correctness, that is, in its
alignment. The contribution of desire, however, is no mere obedience
or adjustment to the orders of the intellect. Indeed, on these conditions
desire would hardly constitute a principle. If, on the one hand, Aristotle
speaks of desire as having to follow reason™s assertions, on the other hand
he speaks of the task of the part of the soul both “practical [praktiko“]
and thinking [dianohtiko“]” as “truth in agreement with right desire” [¡
ˆlžqeia ¾mol»gwv ›cousa t¦ƒ ½r”xei t¦ƒ ½rq¦ƒ] (1139a30“32). In a elucida-
tory attempt, Aristotle restates and ampli¬es:
Now the principle of action is deliberate choice (but as [a source of] motion and
not as that for the sake of which), whereas that of deliberate choice is desire and
reason for the sake of something; hence deliberate choice cannot be without intu-
ition [no“] and thought [diano©av], nor without ethical habit [ qik¦v –stªn ™xewv],
for acting well [eÉprax©a] or its opposite cannot be without thought [diano©av]
and character [¢qouv]. It is not thought [di†noia] as such that can move [any-
thing], but thought which is for the sake of something and is practical, for it is
this that rules productive thought also. (1139a32“b2)

The appetites, as well as the structures of character in which they inhere,
are crucial as moving principles. Alone, thought could not be a principle of
action in the sense of inducing action. It is the envisioning of and striving
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
178

toward the end that initiate the motion, and these pertain to the desiring
domain of character. Thought is here seen as essentially regulative of such
a stretching out, of such a purpose that incites to action “ as if reason were
an auxiliary resource allowing for a more focused apprehension of the end
and a more expedient pursuit of it. In its sharpening function reason would
listen as much as it would speak (legein), would be affected as much as
it would affect. Something blind is here adumbrated, an unexplainable
drive moving to action and involving even reason, such that reason would
apply itself to that which it is not, to that which is already there (as another
principle, beginning), to that which it cannot reduce to itself.
Again, thought appears to be less implicated in the origination of
action than in the how of the action, in its balance and appropriateness.
The truth it contributes regards the way to achieve a certain end lucidly
and effectively. The end, however, is brought into focus through charac-
ter, that is, through that domain of the soul in which the habits (virtuous
or otherwise) come to be established on the basis of the desires. We
shall return to this. For the moment, we should simply underscore two
important consequences of these observations: In the ¬rst place, just as
necessitation and modality of an action can hardly be considered as sepa-
rate, so desire and thought, though discernible from one another, appear
to be at one. Second, while, on the one hand, it can be said that desire
abides by the directions of reason, on the other hand reason makes itself
“similar” to desire, that is, accords itself to desire in order to calculate how
to reach the desired end. In the latter sense, the work of reason appears
to be grafted on the determining ground of desire, that ground that
has determined in advance what is worthy of being pursued as an end.
In the course of the following analysis we will have to verify whether this
dialogical (dialectical) relationship holds only between desire and specif-
ically practical thinking, leaving speculative thinking free from such an
implication, or whether, on the contrary, no thinking can possibly be
emancipated from such a bond with action, habituation, and driving
impulses.
Far from playing a secondary, ancillary role, then, the desires seem to
be inextricably intertwined with rational (at least practical-deliberative)
processes and as constitutively determinant as these. Aristotle concludes:
“But an object of action [is an end without quali¬cation], for a good action
is [such] an end, and this is what we desire. Hence deliberate choice is
either a desiring intellect [½rektik¼v no“v] or a thinking desire [Àrexiv
dianohtikž], and such a principle [ˆrcŸ] is a human being” (1139b4“7).
The Virtues of the Intellect 179

As a coda to these observations, let us simply signal that the author
of Magna moralia will take a considerably more extreme position and
will attribute to the desires an even more fundamental function. In this
treatise it is stated that “virtue . . . is found when reason [l»gov], well con-
ditioned, is in symmetry with the passions [p†qesin] possessing their own
proper excellence, and the passions, in turn, with reason” (1206b10“12).
Far from being a matter of paternal speaking and ¬lial listening, the rela-
tion of reason and desire or passion is said to be a matter of sumph¯nein o
(1206b13), of speaking in harmony and together. But, more decisively
and in deliberate polemic with what “others” say, the author makes the
“unquali¬ed” statement that “reason is not the principle [ˆrcŸ] and
leader [¡gemÛn] of virtue, but rather the passions. For, ¬rst, an irrational
impulse [¾rmŸn Šlogon] toward the beautiful [pr¼v t¼ kal¼n] must (and
does) come to be, then, subsequently, reason must cast its vote and judg-
ment” (1206b18“22). It is in virtue of the “impulses of the passions”
(¾rmaª t¤n paq¤n) that one is moved “toward a beautiful [end]” (pr¼v
t¼ kal¼n) (1206b24). On the contrary, “when from reason the principle
reaches toward the beautiful [pr¼v t‡ kal†], the passions do not [nec-
essarily] follow with their assent, but many times they oppose it. Hence,
when well disposed, passion, more than logos, seems to be the origin pro-
moting virtue [pr¼v tŸn ˆretŸn]” (1206b26“9).

5.2.2. Divisions
The second issue to be noticed is the fact that Aristotle offers two accounts
of the structure and subdivision of the part of the soul that “in” itself “has”
logos (1139a5ff.). According to the ¬rst, the rational part is divided into
a “scienti¬c” (epist¯monikon) and a “deliberative-estimative” (logistikon)
e
component. Shortly thereafter, a varied account follows, according to
which the rational part of the soul consists of three sub-¬elds, the “the-
oretical” (the¯r¯tikon), the “practical” (praktikon), and the “productive”
oe
(poi¯tikon). We wonder, to begin with, (1) whether the two-fold and the
e
three-fold divisions may at all ¬t together. Indeed, one tends to under-
stand the designations “scienti¬c” and “theoretical” as synonyms in this
context, and the terms “productive” and “practical” as bifurcating the
comprehensive heading of the “estimative” (which concerns what admits
of being otherwise). However, Aristotle does not explicitly establish such
a simple equation. The terminological proliferation at this stage seems to
be symptomatic of a less-than-clear delineation of the topography of rea-
son, in fact, of its formidable dif¬culty. Even aside from this, we should
¯
Ethik¯ n Nikomakhei¯ n Alpha to Eta
o o
180

wonder (2) why the practical-productive (estimative) functions would
be situated here, in this domain said to be of reason as distinct from the
desires. For would the operations pertaining to what can be otherwise not
belong in the domain of sensibility and passion? After all, is this not the
reason why belief and opinion are not accorded a legitimate place in the
abode of logos (1139b18)? A concomitant question arises (3) concerning
virtues such as art and prudence, which seem to pertain to the sensible
and variable, yet are classed among the virtues of the intellect. Indeed,
at 1140b26“27 and 1144b14“15 the part of the soul to which phron¯sis e
(along with “shrewdness,” dein»thv) pertains is called doxastikon, “that
which forms opinions.” Given the earlier exclusion of matters related to
doxa from the domain of logos, the schematism here emerges as less than
limpid.
Eventually, we must wonder (4) whether or (in fact) not the theo-
retical or scienti¬c part (if the two terms do indicate the same) may be
free from the involvement in desire marking the practical or deliberative
part. In other words, even conceding the entanglement of “practical rea-
son” in sensibility, would there still remain, in the domain of logos, at its
core, the precinct of science or theoretical exercise, as it were, a citadel
unvanquished, totally intact, not compromised by worldly engagements?
Last but not least, we have to ask (5) how, if at all, each “intellectual”

<<

. 6
( 12)



>>