This is the 3rd lecture of [[James Orr]]'s [[PA Philosophy of Law]] course on [[Peterson Academy]]. > [!note] Notes organised by thinker: Plato > Aristotle > Cicero > Aquinas --- ## 0. The thesis running through all four thinkers Law, normativity, or whatever law is trying to describe or enforce **exists in nature** — wired into the fabric of reality. Not there because a city-state, a parliament, a president, or a tyrant says so. > **The principles underpinning law are discovered, not invented. Discovered, not constructed.** The laws we actually pass must conform to what has been discovered; they are not inventing justice out of nothing. --- ## 1. Framing test case: human rights law **The contrast that makes the problem visible.** A British citizen has rights conferred by the UK's constitutional framework. A Romanian in London is subject to UK law because he is in that jurisdiction. In both cases the law is *particular*: it emanates from a particular political authority and governs a particular political domain. **Human rights break that pattern.** Which parliament are we talking about? Which humans — just all of them? Which court assesses the treatment of any human being anywhere, in any jurisdiction, under any local law? **From the positivist point of view this is very strange:** free-floating subjects of a law that isn't really a law, transcending the actual laws of actual nations. **The lecture's claim:** human rights law has a natural philosophical justification in **natural law** that it simply does not have in positive law. Rights-based thinking about justice sits far more comfortably in the natural law tradition. **But note the tension inside the modern settlement.** Treating every human being as freighted with special dignity and normative force is *already theological language* — yet many human rights instruments repudiate or stay agnostic about that motivation. The attraction of rights for the drafters of the **UDHR (1948)** was precisely that they deliver universality *without* requiring agreement about where human dignity comes from. One big happy human family, brothers and sisters — but who is the father of the family? Don't ask. Some believe in him, some don't, some think they executed him. What gets agreed is a set of universal laws upholding human dignity that override democratically accountable parliaments, congresses, courts, presidents, and monarchs. --- ## 2. Plato (c. 429 – c. 347 BC) ### Formative context [[Plato]] is left psychologically broken — *traumatised* is not too strong — by the persecution, trial, and enforced suicide of Socrates in **399 BC**. He grew up through the **Peloponnesian War (431–404 BC)**, and was about fifteen when Athens launched the **Sicilian Expedition**: tens of thousands of men and hundreds of triremes, resources Athens didn't really have, and within two years the entire fleet and army wiped out. Somehow Athens kept going. **The upshot for his politics:** Plato blames democracy and democratic mechanisms both for Athens' conduct in the war and for the treatment of Socrates. A society that puts the justest and wisest man ever to have lived through that is dysfunctional and **structurally inadequate**, not merely unlucky. ### *Republic* (c. 370s BC) The Mount Everest of political philosophy — the views are extraordinary, even if the air is thin and you had to do impossible things to reach the top. **Core commitment:** absolute primacy on reason, truth-seeking, and pursuing the good through thinking, careful reflection, debate, and contemplation. **Philosopher rulers.** Their authority to rule arises **not from the power to pass laws but from wisdom attained** — you have done the training, the reflection, the mental work, and that is what earns you the right to tell other citizens what to do. (Plato is explicit that this is open to women: philosopher queens as readily as philosopher kings.) ### The key claim for natural law: **wisdom outranks law** Laws are not the same as wisdom, and it is better to have wisdom than perfect laws. | Why wisdom is better | Why law is nonetheless indispensable | |---|---| | Rigid laws cannot accommodate exceptions | Wise people are rare | | Laws must be general and universal, so cases arise where application is unjust or disproportionate | Everyone is fallible, finite, fragile; you cannot train them all | | Wisdom can respond to the particular case | Law "is what it is" — no expensive education required | | | Law prevents arbitrary dictatorial rule — **provided the ruler is always subject to it** | ### The training programme (and the objection it invites) Take babies or promising toddlers from their families into state care; raise them in military-style barrack dormitories; ten years of mathematics and geometry (essential, for Plato); extensive one-to-one tutorials with Socrates and people like him; ready to attempt ruling by their twenties. **No family life, no friends** — loyalty can be owed to nothing but the state. A monastic existence, and not much fun. ### *The Laws* (350s BC) Written late, after the disastrous trip to **Syracuse** to tutor the son of the tyrant Dionysius — from which Plato returns with rather less faith in authoritarian rule. Three shifts from the *Republic*: 1. **Law becomes more central**, and its power matters more independently of its content. 2. **A divine imprint on the laws** appears, which the *Republic* lacks. 3. **Reason is distributed through the laws themselves.** The reason residing in a body of law is probably *greater* than the reason that could reside in any single human mind. **Law as society's brain** — a collective web of understanding that embodies reason, of which the statute is the codified version. ### Worked example: compulsory schooling — two justifications - **Pragmatic/coordinating:** you have to put children somewhere. It sets the rhythm of society and prevents a good deal of mischief and petty crime. - **Plato's moral justification:** you send your children to school because it is your duty to ensure their **moral formation** — the right kind of character, training in virtue, the education of the soul. **The modern contrast:** in a pluralist society with competing conceptions of the good, we prefer agnosticism — whatever *you* think it is to be a good person, here is the behaviour we expect, but it is not for the school to impose a detailed vision. For Plato and Aristotle, education is obviously of mind *and* soul *and* character. **We are much more allergic to this today.** ### Plato's position in summary Justice is rational, intelligible, and something you can argue your way to. Law crystallises it for a particular community — reflecting the cosmic order of goodness and justice into that community — and has a moral purpose: inculcating virtue and promoting flourishing. ### Objections 1. **Anti-democratic.** Squarely attacks the view that society should do whatever the voting majority decides. 2. **Totalitarian risk.** Depriving families of their children from the age of two for enforced state boot camp is not something modern sensibilities can tolerate. 3. **The regress objection — the sharpest one.** What *is* the good? What is justice? Do the classes with Socrates ever actually end? Sometimes he gives an answer, then pulls it back, then loses an argument. **If we have no secure grasp of the good, how can we prescribe it for everybody?** --- ## 3. Aristotle (d. 322 BC) **Biographical note:** he was Plato's successor in the history of philosophy but *not* at the Academy, which went to Speusippus, a relative of Plato's — an early example of nepotism. Aristotle leaves Athens in a huff and in the 340s goes off to tutor Alexander the Great, "as Alexander is reaching the peak of his genocidal imperialist expansion." ### The core distinction: *physis* vs. *nomos* | ***Physis*** — nature | ***Nomos*** — convention | |---|---| | A rule of justice is **natural** if it has the same validity everywhere and does not depend on anyone accepting it | A law is **conventional** if it could have been expressed in any form, but once chosen must remain fixed | **A point about language doing philosophical work:** *nomos* is the Greek word for *both* convention and law. So the idea that a law just is something conventionally generated by a parliament or a king is **already baked into the Greek vocabulary** — a case of language pushing one view over another. **Examples of conventional law:** drive on the left or the right; tax rates; weights and measures. The lecture's illustration is **the metre**, allegedly fixed by the length of a desk in a Paris bureau: nothing in the world more closely approximates a metre than that object, so it becomes the standard. It could have been a different desk — but once the decision is taken it is fixed, and it then has all the clarity and coordinating power good laws should have. *(See errata: the actual history is different; the philosophical point stands.)* ### Carpentry, not geometry (*Nicomachean Ethics* I) Faced with a moral dilemma, there is no point pretending to be a **geometer** — seeking exactly the right precise principles, perfect inferences, and a perfect conclusion. Human scenarios are messier than that. It is more like the **carpenter** looking for a right angle: he needs it square enough for the chair to stand. 89.9999° or 90.0001° — he doesn't care. It'll do. > **This is Aristotle's central correction of Plato.** Plato seems to think you can get perfect access to justice and morality and then reach the right answer immediately. Aristotle: judgment is messier, and **the rules of right and wrong are variable.** ### *Phronēsis* — practical wisdom Applying principles of justice always requires judgment. **The borrowed knife:** you lend me your knife and I promise to return it. You then go mad and announce you intend to kill everybody. Natural justice requires that I break the promise. **The principle is universal — keep your promises — but the application is selective**, sensitive to the particulars of the case. ### The institutional descendant: **equity** From the Latin *aequitas*, meaning fairness, or a levelling, a making-equal. A system arising **in England**, not on the continent, and exported to the Anglosphere. Equity is the genius recognition, built into an institution, that **moral judgment is carpentry rather than geometry** — always a little rough. Where strict application of law will not deliver the justice we want, equity corrects for the generality and universality of law. Its features: - It does **not** override law — it makes sure law can fulfil its purpose - It may look to the **intention of the legislator** - It must be consistent with the principles of natural justice - It can correct positive law by appeal to a higher principle - Judges in equity exercise **discretion and wisdom** rather than brute application ### Should the best man rule, or the best laws? Aristotle's conclusion: **on balance, the laws should rule.** **Why:** law is a *distillation of reason* that filters out passion, emotion, partiality, and nepotism. That freedom from all-too-human feelings and inclinations gives law an authority and a strength that even the best kings, rulers, or parliaments could not exhibit **consistently over time**. ### The end of law: the common good Not the whole basket of individual preferences and wants; not the majority over the minority. **The good of the community *as a community*, such that each member can flourish.** Laws should be geared toward that final end. ### Legacy Aquinas; the system of equity and the common law; and the modern theory of **the rule of law** — that authority is vested in law, with equality before it and no special treatment for parts of society. - *Aside worth keeping:* the rule of **law**, not the rule of **lawyers** — the danger that law becomes a cottage industry enriching a particular class, where whatever the just outcome, the lawyers always win. - ***Lex terrae*** **— "the law of the land."** English usage from as early as the 11th–12th century. If it is the law of *the land*, it doesn't matter who is king of the land: the law rises up from the land and holds authority **even over the king**. - **Contrast with France:** the supremacy of the monarch over law, with law effectively embodied in the person of the king — what the king says is law, subject to certain constraints. In English thinking the king instead stands in judgment before God, like any of his subjects. --- ## 4. The Stoics — the invention of universality **The hinge.** Aristotle dies in 322; Alexander had died the year before, in 323, much younger. Suddenly the whole known world speaks Greek and operates with the thought that there may be a world beyond one's own city-state or island of which all human beings are somehow part. New vocabulary: ***politēs tou kosmou***, a **citizen of the cosmos**, as against a citizen merely of the *polis*. **Before this it is just laws for Athenians, laws for Spartans, laws for Persians.** Universalism only really gets going at the end of the fourth and into the third century, once Alexander's conquests have opened the world up. **The name.** The *stoa* was the colonnade of a large building on the edge of the Agora in Athens, beneath the Parthenon (now beautifully restored). A group of philosophers habitually hung about the portico, wandering in circles talking incomprehensibly, and came to be called the colonnade guys — the Stoics. The school is founded in the fourth century and lasts for centuries. *Useful frame:* an ancient philosophical school of this kind functions almost like a religion — followers, principles, a distinctive way of living, a characteristic stance toward politics and the public square. ### The doctrine that matters for law We inhabit a **local political community** with local laws and customs, but there is also a **universal cosmopolis** with its own rules and principles — you might say natural law — which **should override local law where the two conflict**. > **We are citizens of both, but the cosmopolis takes priority over the polis.** **Why this is the decisive innovation:** Stoicism is arguably the first belief system to hold that law and justice apply to human beings *simply in virtue of their being human beings* — in virtue of belonging to the category. **Downstream influence:** international law, Roman law, early Christianity, and modern human rights theory. --- ## 5. Cicero (writing 50s–40s BC) **Standing:** the greatest orator, lawyer, and prose stylist to emerge from the Roman Republic, and a serious man of letters. As a philosopher, substantial and well worth reading, but **derivative** — not at the level of Plato or Aristotle, or anywhere close. **Context: the Republic in its death throes.** Founded around 509 BC after the expulsion of the last king; civil wars from the 70s BC, intensifying through the 40s and 30s, culminating at **Actium in 31 BC**, when Octavian — Julius Caesar's adopted son — defeats Antony and Cleopatra and takes over as ***princeps***. He refuses the titles of king and emperor: he is merely a prince, first among equals, who then somehow keeps getting voted into the top job every year for the rest of his life, as if by magic. **The continuity of the Republic is preserved while the Republic becomes an empire.** Old traditions and laws are being thrown out of the window, and Cicero is visibly wrestling with the resulting questions about morality and justice. **The project:** incorporate the great ideas of the Greek philosophical tradition into the Roman legal tradition. ### *Vera lex* — true law > **"True law is right reason in agreement with nature"** — *ratio* in agreement with *natura*. Its properties: universally applicable, unchanging, everlasting. It is a **sin** to try to amend it or repeal any part of it. The Senate cannot absolve us of it; the people cannot abolish it. There will not be one law at Rome and another at Athens. There is **one eternal, unchangeable law valid for all nations and all times, and one master and ruler — God**, who is the author of law and its enforcing judge. ### Objection: isn't the theism odd for Cicero? Is he not committed to Jupiter and the whole gallery of Roman gods? **Answer: yes and no.** His **Stoicism** lets him appeal to something more like an impersonal deity. The Stoics are not really theists — theirs is not a theistic philosophy. What they hold is that nature is organised by a **rational principle, a *logos* or *ratio*, that simply is there**. The position is simultaneously materialist and thoroughly rationalist. --- ## 6. The Roman legal apparatus ### The threefold division | | | |---|---| | ***Jus naturale*** | Natural law | | ***Jus gentium*** | The law of nations — roughly, international law | | ***Jus civile*** | Civil law, specific to Rome (or Athens, or London, or New York) | **The crucial provision:** if someone is not a Roman citizen and not subject to the *jus civile*, you must still apply the ***jus gentium***. **Principles of justice apply to non-citizens.** ### The consequentialist argument for universality The universality and intelligibility of Roman law had extraordinary catalytic effects, particularly on economic flourishing: - **Standardisation.** Whether you are in Gaul or deep down the Nile, the same rules, the same overarching principles, the same courts. A Roman citizen has the right to be tried in Rome on any offence. - **Clarity in a world that had none.** Previously nobody knew the rules of the neighbouring state, let alone of a tribe half a world away. Everything becomes standardised, accessible, intelligible. - **Enforcement and deterrence.** The mechanisms are clear, and the Romans were famously very good at punishing people — which everybody knew, and acted on. - **Trade.** You can sell goods to someone in Egypt you will never meet, in a world you will never see, and still expect payment — and have mechanisms to enforce it if payment doesn't come. Still primitive, not to be overstated, but the advantages of predictability, clarity, and universality are enormous. ### The modern application: legal stability as an economic good When Chancellors of the Exchequer or Treasury Secretaries redraft budgets and taxes, **changing the rules too much or too fast creates an uncertain climate for risk-taking.** A businessman is already in the business of risk mitigation; what he wants is for the state and the law to minimise every *other* risk so he can focus on the product. If corporation tax may rise next year having jumped last year with no explanation, long-term investment planning over twenty or twenty-five years becomes impossible. > **There is great value in there not being too many laws, and in laws not changing too often.** **The structural problem:** governments trying to fill the treasure chest always have an incentive to add more pages to the tax code — which is why England has the longest one in the world. *(Compare Lectures 1 and 2 on complexity and non-enforcement eroding legal authority: three separate routes to the same conclusion.)* --- ## 7. Aquinas — the synthesis Aquinas retrieves Aristotle, Cicero, and Plato and **baptises them** into a theologically inflected account of natural law in relation to divine creation. ### The hierarchy | Level | Source | Reaches | |---|---|---| | ***Aeterna ratio*** — eternal reason | Contained within God | — | | **Divine law** | Revealed through Scripture | Those who have received it | | **Natural law** | Revealed through nature | **Absolutely everyone** | | **Human law** | Ecclesiastical, civil, positive law | Particular communities | **Both divine and natural law are divinely authored:** God inspires the Scriptures and God creates nature. ### The universality claim and its scriptural warrant Natural law applies to everyone, including those who have never read the Old or New Testament. **Romans 2:14–16** says the Gentiles **"have the law written upon their hearts"** — and are therefore *without excuse*. Human beings are subject to natural law and can understand it whether or not they have ever heard the Ten Commandments or the Sermon on the Mount. ### The Aristotelian inheritance With Aristotle, law aims at the **common good** and at common flourishing: it coordinates our individual desires and choices and bends them toward communal flourishing. --- ## 8. The four thinkers against each other | | **Plato** | **Aristotle** | **Stoics / Cicero** | **Aquinas** | |---|---|---|---|---| | What grounds law? | The cosmic order of goodness, accessible to reason | Nature (*physis*), distinguished from convention (*nomos*) | *Logos* / *ratio* organising nature | Eternal reason in the mind of God | | Rule of law or rule of the wise? | **Wisdom outranks law** — though law is a necessary second-best | **Law should rule** — it filters out passion and partiality | — | Law as *ordinatio* of reason | | Precision of moral knowledge | High — you can reason your way to the right answer | **Low — carpentry, not geometry**; requires *phronēsis* | High — one unchanging law for all times | Reason discerns, but fallibly | | Scope | The *polis* | The *polis*, with natural justice valid everywhere | **The cosmopolis — all humans as humans** | All humanity, Gentiles included | | Institutional legacy | Ideal of the philosophically trained ruler | **Equity, common law, the rule of law** | International law, human rights | Medieval jurisprudence, Catholic legal thought | **The single most important development across the sequence** is the move from *polis* to *cosmopolis*: Plato and Aristotle theorise justice for a particular political community, while the Stoics are the first to make justice attach to human beings **just in virtue of being human** — which is what makes Cicero's *vera lex*, Aquinas' universal natural law, and eventually the 1948 Declaration possible at all. --- ## 9. Where this is going: Nuremberg Lecture 4 applies the natural law matrix to the **Nuremberg trials**, which raise every question in the course at once: the relationship between law and morality, and what authority the judges actually had. **The victors' justice objection** — pressed not only by the Nazi defendants but by distinguished lawyers and philosophers of law. The very fact that the victors sit on the bench skews the outcome, however careful they are, and **justice needs to be seen to be done.** Soviet, French, British, and American judges; English and American prosecutors and defence counsel. After six years of the largest war in human history, how can it be a neutral, dispassionate process when the enemy has literally sent its own judges to determine and apply justice? The next lecture looks for natural law solutions while taking the positivist critique seriously. --- ## 10. Vocabulary - ***Physis*** **/** ***nomos*** — nature / convention (*nomos* also means "law") - ***Phronēsis*** — practical or moral wisdom; judgment in applying principle to cases - ***Aequitas*** **/ equity** — fairness, levelling; the English supplementary jurisdiction correcting law's generality - ***Lex terrae*** — the law of the land - ***Politēs tou kosmou*** — citizen of the cosmos; **cosmopolis** vs. **polis** - ***Vera lex*** — true law (Cicero) - ***Logos*** **/** ***ratio*** — the rational principle organising nature (Stoic) - ***Jus naturale*** **/** ***jus gentium*** **/** ***jus civile*** — natural law / law of nations / civil law - ***Aeterna ratio*** — eternal reason (Aquinas) - ***Princeps*** — "first citizen"; Octavian's chosen title --- ### Minor points worth checking before repeating them - **Internal inconsistency on Speusippus.** He is named as Plato's nephew and then, a sentence later, as Plato's son-in-law. Speusippus was Plato's **nephew** — the son of his sister Potone. - **The metre was never a desk.** It was defined in 1793 as one ten-millionth of the quarter meridian from the North Pole to the equator through Paris, later fixed by a platinum prototype bar. The illustration of arbitrary-then-binding convention is sound; the anecdote isn't. - **Cicero was dead by the 30s BC** — proscribed and killed in 43 BC. His philosophical works belong to the 50s and 40s. - **Equity is older than the 16th century.** The Court of Chancery's equitable jurisdiction develops from the 14th–15th centuries, though its systematisation comes later. - The founding date of the Republic is given first as 507 and then as 509 BC; **509 BC** is conventional. --- Back to: [[PA Philosophy of Law]] Previous Lecture: [[The Source of Law]] Next Lecture: