In Aristotle’s discussion of the rule of law, in the context of that form of constitution known as monarchy, he makes the famous pronouncement that, “law is thus ‘reason without desire’”.[1] I suppose many people know this quote not from having read Aristotle directly, but from having heard it in Legally Blonde, with ‘passion’ translating the word rendered here as ‘desire’. At the end of that film Elle, the protagonist, says in her graduation speech, “no offense to Aristotle, but in my three years at Harvard I have come to find that passion is a key ingredient to the study and practice of law and of life”. Be that as it may, Aristotle was not talking about the motivations of a lawyer, but about the nature of the law itself in a constitutional system. What he says goes to the heart of the relationship of law and liberty in a constitution, and the place of reason therein.
I propose here to consider in greater detail what Aristotle says in his discussion of the rule of law in Book III of his Politics, and bring forth what appear to me ideas about reason and the nature of law implicitly undergirding his argument, but not expressly articulated by him. My aim is not merely exegetical or expository, but to use Aristotle to articulate a theoretical framework for understanding the rule of law. In this first part I will consider the first part of his argument in Book III, ch. 16, considering what goes to make a good constitution and the role of law, as a rational ordinance, in ordering the world.
When all the citizens of a polity have a share in its government, it would be prejudicial to the equality of their citizenship for one person among them to be immune from the general law. For in a democracy all citizens, in a manner of speaking, equally partake of government either by, to use Aristotle’s example, rotation of office,[2] or, in modern times, by the ability to seek office and to have an equal vote in selecting public officials. For one of the citizens to be above their law would be to place him above them in a relationship akin to that of a master and his slaves, as indeed tyrants are. However, since this is prejudicial to the common benefit of the polity, for such a relationship implies the self-enrichment of the individual placed above the rest, even where there is a single chief of state, “they should be made ‘law-guardians’ or ‘servants’ of the law”.[3]
For the equality of a democracy is an instance, suited to the character of a people in a given State at a certain point in time, particularising the general truth of the equality of nature of human beings, something Aristotle only partially recognised.[4] Whilst the abilities of some may make them better suited to certain functions within the State, all things being equal, if there is generally a baseline actualisation of the moral and intellectual potentialities of human nature, present in all persons in a polity, there is no reason to deny people their participation in government as citizens. The rule of the law, made by and for the polity, to which all citizens are willingly subject, is, seen in this way, an essential aspect of good government, which is to say, government that serves the actualisation of individual human beings’ potentials. In this sense we may say that all good forms of government are in a sense a res publica, a ‘public thing’. Bede certainly thought so when he contrasted self-interest with the public interest, saying that during the reign of Diocletian, Carausius “put his own interests before those of the Republic”.[5] So, all good forms of government are a res publica because they are under the law made by and for the people, and the officials of the State do not simply belong to the State but belong first to the people of which they are a part, whose law they serve.
Our characterisation of law and a good constitution must be further developed, however. How is it that one comes to the view that “law is […] ‘reason without desire’”?[6] First, Aristotle says that law, so to speak, trains the mind of office-holders in its own spirit and not according to the variable spirits of any given man or groups of men. This is said in the context of uncertain cases, where neither law nor merely untrained judgment can give a definite answer. Legal reasoning, for Aristotle, trains the mind towards exercising clear judgment unclouded by the passions. It thus, as a second point, better equips the office holder to improve the law, when experience shows existing laws to be inadequate, to better serve the polity’s needs at a given time. These points, however, seem to be of second-order importance. The first-order reason Aristotle gives is, unfortunately, enmeshed in these other reasons and appears to be made consequent upon them, but I think that it is separable and stands above them as the overarching reason for the rule of law, derived from its very nature; he says:
“He who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast”.[7]
It is human beings who enact laws, and yet law has a rational character; it is characterised by logos. Which holds precedence? Surely, it is logos, for it is that by which all things are intelligible and mean anything. Reason precedes and makes meaningful acts of the will, even legislative will, and it is thus by reason, by the standard of logos, that the law itself is judged. If this is so for legislative will, it is all the more the case for the passions of legislative actors, for the passions are inherently subjective and variable according to the individual they affect and thereby they pervert the law. But law, being a stable and enduring standard may, in the vocabulary of antiquity, be described as something godlike for that reason, and because it is partakes of logos by rationally ordering the world. I will develop this thought later in my discussion.
For now, it is useful to summarise what I have said. Thus far I have started to argue in favour of a theoretical framework wherein law is grounded in logos, that is reason, and not in the personal will of rulers. For law partakes of reason, and it is this reason which gives it meaning, thus preceding the legislative will itself as a normative standard. The passions as, rather, subjective and variable and liable rather to distort rather than support the law. So, indeed, it is the law that should rule and not changeable man. This is supported by the consideration that human beings are equal, particularly when sharing the equality of citizenship in a democratic society, and for a particular citizen, even if he is the ruler, to be above the general law is to corrode this equality. Government officials ought to serve the law, instead of being in a relationship of domination over the public. In the following parts I hope to explore these ideas, particularly that of the relationship of law and liberty in relation to logos further, continuing it in the context of discussing and developing Aristotle’s views on the topic.
[1] Aristotle, Politics, Book III.16 (Trans. Ernest Barker and R.F. Stalley, OUP 2009) 128
[2] Ibid 127
[3] Ibid
[4] Ibid: “Now there are some who take the view that the sovereignty of one man over all the other members of a city is not even natural in any case when a city is composed of equals. On this view those who are alike by nature are naturally entitled to receive the same justice and enjoy the same status.”
[5] Bede, A History of the English Church and People (trans. Leo Serley-Price, Penguin 1955/1960) 43; Beda, Historiam Ecclesiasticam Gentis Anglorum Lib. I.6: “Quorum tempore Corausius quidam, genere quidem infimus, sed consilio et manu promptus, cum ad obseruanda Oceani litora, quae tunc Franci et Saxones infestabant, positus, plus in perniciem quam in profectum reipublicae ageret, ereptam praedonibus praedam nulla ex parte restituendo dominis, sed sibi soli uindicando”(emphasis added). Literally, Carausius was acting more to the ruin than to the advantage of the Republic.
I do not claim that the form of government after Augustus Caesar was a res publica. My point is much narrower, in saying that the three good constitutional forms we see mentioned particularly in Aristotle and Polybius are res publicae. In this I probably differ from Cicero in his narrower characterisation of a res publica, and I align more with the tradition of the Early Modern English constitutionalists, like Sir John Fortescue in his De laudibus legum Agliae.
[6] Aristotle (n1) 128
[7] ibid
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