In part 1, I argued that reason, conceived of as logos, is that on which law is grounded, not the personal will of rulers. Law partakes of reason which gives it meaning. Thus, reason precedes and conditions the exercise of will. The passions are variable and whereas the law ought to provide a stable standard, they are likely to distort rather than support the law. Law should rule, and not man. Indeed, in a democratic society all citizens are equal and for a ruler to be placed above the law would be to contradict the nature of that society. Indeed, the equality of persons itself requires that law and not individuals should have ultimate rule, for all are subject to reason. In what follows, I hope to consider more of Aristotle’s discussion of this topic and develop my prior reflections more fully. If you have not read part 1, I encourage you to do so.
Aristotle continues his discussion by drawing an analogy from physicians and athletic trainers. Trainers when being trained and, more particularly, physicians when ill, do not use their own judgment. They do not make determinations about what is needed to, for the one, improve their skills, and, for the other, remedy their ailment. Instead, the trainer has recourse to another trainer, and the physician seeks the services of another physician to aid them here. This is “on the grounds that they cannot judge truly themselves because they are judging in their own case under the influence of their own feelings”.[1] This reasoning analogically shows at least one of the reasons for the legal rule nemo iudex in causa sua.[2]Thus, in adjudication, where justice is sought, there must be a neutral standard; “and law is a neutral standard”.[3]
There is a distinction that should be made here, between adjudication and the law itself. Adjudication requires a neutral standard, as we have said, because when judging in one’s own case, it is difficult to distinguish one’s own interests with which the passions are intermingled, from the truth. Distinctly, law itself, in its nature, is a neutral standard because it is detached from immediate mutability, of which the passions are a part, and inasmuch as it is a general standard removed from immediate circumstances and requiring application to them (where adjudication has its, related, proper place). Neutrality in adjudication may therefore be seen to be related to the inherent neutrality, conceptually considered, of law for both require detachment from the mutability of the passions. Particular laws may be said to be more or less ‘law-like’, that is, conforming to the nature of law, so far as they are rational and dispassionate.
So, law is not only a neutral standard but also a rational standard for it is that by which actions are to be interpreted, when we censure or praise them in relation to the State and the good of the community so far as law prescribes rules in that regard. So, to refer to our discussion in part 1, the law, being rational and detached from mutability, partakes of logos, and presides over human affairs. In the Nicomachean Ethics[4] Aristotle states that a polity is greater, and more complete in the sense of self-sufficient, and in this sense more godlike (though the wording is not ideal)[5] than a single person though both have the same earthly end. Yet I submit that within the formal organization of the polity itself, it is law which is the most godlike as the enduring embodiment of reason standing in dispassionate judgment over all citizens. In this regard, I think that it is not vain that in most if not all English-speaking countries we refer to the most senior judicial officers by the title of ‘Justice’ for it is ultimate Justice which is reflected by the law they apply; in applying the law, its officers embody it, and thus remotely reflect abiding Justice itself. It is persons such as these who are those who I think Aristotle might have in mind when he said that they are trained by the law in its own spirit, being best fitted to “decide and settle” those difficult questions for which legislation might be wanting.[6] On this theoretical basis, I think we may justify the statement of the House of Lords in Re Spectrum Plus Ltd [2005][7] which claims for the judicial power in the United Kingdom a minor portion of legislative power in its control of the common-law.
Aristotle continues his argument regarding monarchy, arguing against the concentration of power in a single individual is not wise, on lines broadly like that of the wisdom of the masses, though differing in detail. He says, in effect, that a multiplicity of wise counsellors and officers helps uphold a single crown.[8] Even in a constitution where power is concentrated in a single person, Aristotle says that the discretionary power should be limited to “certain issues on which the law is not competent to pronounce; for no one disputes the fact that law will be the best ruler and judge on which it is competent”.[9] Here it is necessary that we consider the intersection of rational discretion with rational law.
Irrespective of the form it takes, be it monarchy, aristocracy, democracy, and their corruptions of tyranny, oligarchy and ochlocracy, or formalities (e.g., written or unwritten, customary or deductively constructed etc.), a constitution is a certain rationally intelligible order of government over a society for the good of that society. As such, the good, and so implicitly also the sovereign good, is the final or overarching consideration whereby the State and society’s order and wellbeing are judged. We may say that whereas we have said that law is godlike because it is enduring and rational, this is derivative as its final end is that of the good proximately and the sovereign good remotely.
To put this in different words, the rational criterion whereby the health of a constitution is judged is whether it is conducive to the wellbeing of the society and whether it is supportive of the ultimate good of the persons in it, in supporting their actualisation of their human potential. The sovereign good and, derivatively, the good stand over and above the society as that whereby its suitability for human beings it is judged; they too, then, stand in a higher relationship with the polity, and are more perfectly called godlike for they are higher than it. Just as the law is that rational criterion to which all the citizenry is subject, it is the good proximately and the sovereign good remotely to which the law is subject. As such, the good of the society is that by which the law is made rationally intelligible and the context wherein it must be understood, such that a law which is not good for its society cannot be participating fully in the definition of law. Being a rational criterion, the good of the society participates in reason, in logos, and itself is understood within the overall scheme of the rational intelligibility of the universe.[10] For no society and its laws exist in a vacuum of only human beings, but within the context of the rest of the animal, vegetative and inanimate world; the rational intelligible order of the universe is the final logos to which the law is subject and made valid. Law is first and foremost sovereign reason, ordering the human world in the context and in the light of the rationally intelligible world.
This is also the context wherein I think we may best understand what Aristotle is saying when he directly contrasts discretion with law and gives each their proper place, as we saw above. It is on two grounds that he seems to assign them their legitimacy, first, on their rationality, second, on the ground of the level of generality as to which such decisions are made.
It is a given that both law and discretion are an act of the will, and for the sake of argument we may concede even that they are acts of sovereign will. They are similar also in that any legitimate actions of law or discretionary exercise are rational. Likewise, in each rationality precedes will in that the intellect is the formal cause of the will, and thus reason precedes and conditions properly human acts of the will, which any acts of the State must be, for a State is simply a modality whereby humans express themselves via organization. It is from the level of generality however that these acts of rational will, law and discretion, gain the divergences from one another in their natures. They are both rational acts ordered towards the rational ordering of society. However, law is more analogous to a major premise in an argument rather than a conclusion, in that it provides a common ground for consolidated social action.[11] Discretion may only apply where general statements may not be made, and as such is more analogous, I think, to a minor premise in an argument. Law stands in a relationship superior to discretion and conditions it, so that, in a modern common-law polity, we might say that discretion is not lawless though it may be broad and include matters beyond judicial cognizance. This area must be broad enough to meet the needs for which it exists, for, to quote Aristotle, “matters which belong to the sphere of deliberation […] it is not possible to lay down a law”.[12] For indeed if law is to action as a major premise is to a conclusion, then when simply a minor premise is involved, a major premise cannot substitute for it. There is ambiguity in Aristotle which may be used to argue that my view here wrongly states that discretion is as a minor premise, and I accept that such ambiguity does exist. Yet I think my view is nevertheless sound conceptually, for discretion necessarily exists in the wider matrix of law, and it is legitimate only so far as a constitution (which is law, or, where convention is involved, closer to law than simple discretion) renders it so.
Indeed, it is confusion as to the fact that there is a real basis for distinction between matters within or without the scope of law which often leads to their juxtaposition. So it is that questions such as, “Is the rule of the best law preferable to that of the best man?”[13] are posed. In truth, they are strictly the reflection of an intellectual mistake. For law and discretion are, as acts of rational will existing at different levels of generality, in their natures not opposed. It is perhaps a combination of errors in reasoning and observation abuse of practical procedures which lead to the error that their natures are in tension one with another.
The rule of law is not opposed to discretion, but simply prefers that where matters are discretionary, they “ought to be judged by many men rather than one”.[14] I do not think that this inherently contradicts the necessity writers such as Blackstone[15] and Madison[16] have outlined for ‘unanimity, strength and despatch’ in the executive department. For when one considers that powers may be held in a single pair of hands, but advice on their exercise given by a multiplicity of experienced counsellors, such as in a cabinet, this tension is much reduced.[17] Indeed, I think it is entirely eliminated at least when we consider the idea as formulated in Aristotle, who, for example, quotes the prayer of Agamemnon in the Illiad: “Would that I had ten men for my counsellors like unto Nestor”.[18] It is difficult to see power more legally concentrated than in the hands of an absolute ruler. If it is so in a much greater case as this, then surely in the case of a much lesser legal concentration of power in a modern democratic executive, it is true that the rule of law and discretionary judgement may exist side-by-side, in complementarity.
If then, it is the rule of reason in service of the public good which gives acts of the public authority, whether legislative or discretionary, in the sense of the Politics, then our considerations may be aided by asking briefly what the nature of this public good is though I do not think addressing it here would be wise. I accept, of course, that in Western societies such as ours there is a plurality of conceptions of the public good. It is not my aim here to offer a resolution to the disagreements on this question. Nor is it my aim to comment on the lawful modes whereby these differing conceptions are said to compete, in the words of Justice Holmes, as part of the “free trade in ideas”.[19] Indeed, the scope of our present query is limited to considering the nature of sovereign reason in relation to law, and considering the nature of the public good, and the interests and inherent needs of the human beings in a polity would be too long of a digression. I will therefore leave the question for a future piece.
Our argument, I think, would be aided as regards the place of law in a free society if we had considered the public good in relation to sovereign reason. Nevertheless, what we have said thus far goes a long way towards a more complete account of the relation of law, liberty, and reason. We have said that reason, logos, is the ultimate thing when thinking about law and society. For law is dispassionate rational will made to provide general rules so that a society may be rationally ordered. Discretion exists as supportive of law and has its own proper place in the rational ordering of society. It would be contrary to a good constitution for law thus conceived to not be sovereign for that would be to deny that reason ought to govern human affairs. Whereas without reason the meaning of things is not ascertainable, nor their proper relations, nor what ought to be done in a particular circumstance (which is simply to ask what reason requires to be done), it is necessary for a society to be rationally organized for it to be properly conducive to the good of its citizenry. Thus, it is also necessary that all citizens, including a king if power is concentrated in this way, be subject to the law. For law, for rational will, to not have ultimate rule is to place arbitrary will as the final arbiter. This is a kindred reason to that of the equality of citizenship which itself requires the rule of law, for without it the ruler and the members of the polity would be in a relationship like that of a master and a slave, which contradicts citizenship and the inherent equality of persons from which it is derived. Therefore, to coherently say that law is sovereign one must accept first that reason, logos, is sovereign.
[1] Aristotle, Politics, Book III.16 (Trans. Ernest Barker and R.F. Stalley, OUP 2009) 128
[2] Dr Bonham’s Case (1610) 8 Co. Rep 107a, 118a (Coke CJ): “The Censors, cannot be Judges, Ministers, and parties; Judges, to give sentence or judgment; Ministers to make summons; and Parties, to have the moyety of the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem sui rei esse judicem”. I quote from the case report as published in Selected Writings of Sir Edward Coke (ed. Steve Shepherd, vol. 1,Liberty Fund 2003) 275; See the interesting discussion of Adrian Vermeule of this rule in ‘Contra Nemo Iudex in Sua Causa: The Limits of Impartiality’ 122 YLJ 384.
[3] Aristotle (n1)
[4] Aristotle, Nicomachean Ethics, Book I.2
[5] For States exist for the sake of human beings, and thus the ‘godlike’ descriptor used here can be misleading if the reader mistakes it to mean the opposite.
[6] Aristotle (n1)
[7] [2005] 2 AC 680 (Lord Nicholls of Birkenhead)
[8] Aristotle (n1) 129
[9] ibid
[10] By this I think I have implicitly endorsed the way of seeing the world found in Plotinus’s Enneads. It does not contradict what Aristotle says in the Politics. I do not intend to take up the question of Logos in the sense of the Gospel of St John, which itself stands in a sovereign relationship with the created logos. I will simply state here that my argument is meant to be palatable to both unbeliever and Christian alike, and it is not necessary to undertake discussion of the theological Logos. When I say sovereign good, I indicate a finality within the created realm, which itself may be subject to a yet more ultimate finality, and I leave that question unresolved here.
[11] On this see, in general, Yves R. Simon, A General Theory of Authority (University of Notre Dame Press 1991)
[12] Aristotle (n1) 129
[13] ibid
[14] ibid
[15] William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) 250
[16] James Madison, Federalist No. 70 in The Federalist Papers (OUP 2008) 345
[17] I do not propose to enter here into the example of resolutions of Parliament in the United Kingdom being used to approve the Executive’s legislation or the practice of Orders-in-Council. The first is a vexed example which would require an investigation as to the relative limits of discretion and the proper mode of exercising the legislative power. The latter would require an analysis of the procedures of the Privy Council. Such detailed considerations would be tangential to the much more general question I am discussing in the present piece.
[18] Aristotle (n1) 129; Illiad II.372
[19] Abrams v. United States 250 U.S. 616 (1919) 630 (Holmes J., dissenting)
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