Critique of Rights. Christoph Menke

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       1 Athens

      Aristotle examines law’s mode of being from the perspective of the virtues, namely by examining the conduct of the person administering justice. Justice as equality (which we have already considered), and thus the virtue of seeing that each person receives his own, is justice “in the particular sense,” since it is only “a part of universal justice.”³ Here, justice means realizing equality in the distribution within a community and in the dealings of individuals with each other, and therefore giving each his own. Justice in the universal sense is different from this. In its universal sense, it is a special regard not merely for equality, but for doing what one is supposed to: doing what is right. Laws [Gesetzen], however, stipulate what the right thing to do is. Justice in general, or “universal justice,” is thus the virtue of obeying laws – the virtue of the “lawful.”

      Aristotle also says that the universal justice of lawfulness is “perfect virtue,”⁴ since it is doing what is right. To exercise the virtue of lawfulness, and therefore to fulfill the requirements of law [Recht], simply means to enact the virtues, because they are precisely what the laws require: doing what is virtuous. As Werner Jaeger summarizes this break with the agonal, heroic definition of the virtues, sealed by Aristotle’s conception of lawfulness, virtue consists “in … [the] voluntary submission to the new authority of the law.”⁵ At the same time, however, Aristotle limits the scope of this concept, by arguing that justice as lawfulness is “perfect virtue, though with a qualification.”⁶ This has two meanings.

      The first meaning is that lawfulness is “perfect virtue … [insofar as] it is displayed toward others.”⁷ The virtue of lawfulness is simply a matter of the relation to other persons. This indeed narrows the domain of lawfulness:

      This is why Justice is often thought to be the chief of the virtues, and more sublime “than the evening or the morning star”; and we have the proverb –

      In Justice is all Virtue found in sum.

And Justice is perfect virtue because it is the practice of perfect virtue; and perfect in a special degree, because its possessor can practice his virtue towards others and not merely by himself.⁸

      The virtue of lawfulness, although (or precisely because) it is not “perfect virtue,” can be viewed as the highest virtue, since it consists in enacting virtue not merely in “one’s own affairs” but “toward others.” Conversely, this is called the virtue of lawfulness, and thus of obeying the law, because its rules simply express how to behave virtuously in our conduct toward others. “Laws are designed to regulate and order relations between human beings: no more and no less.”⁹

      The claim that the virtue of lawfulness is not “perfect virtue,” however, has another, second meaning. This is evident in how it stipulates laws [Gesetzen] and therefore also in what it alone can stipulate:

      the law prescribes … the conduct of a brave man, for example not to desert one’s post, not to run away, not to throw down one’s arms; that of a temperate man, for example not to commit adultery or outrage; that of a gentle man, for example not to strike, not to speak evil; and so with actions exemplifying the rest of the virtues and vices.¹⁰

      Law stipulates virtuous deeds – and therefore does not stipulate the disposition that is virtue. Justice as lawfulness and (perfect) virtue are “the same quality of mind, but their essence is different.” Only “what as displayed in relation to others is Justice, as being simply a disposition of a certain kind is Virtue.”¹¹ The virtue of lawfulness is thus not “perfect virtue” because it can only refer to virtuous deeds, and this is why we can distinguish a virtuous disposition and virtuous deeds within lawfulness. The virtue of lawfulness only includes the capacity for a virtuous disposition, since it also includes the capacity for a sham virtue, the enacting of feigned virtue – the virtue-less accomplishment of virtuous deeds.

      The lawfulness of law [Gesetzlichkeit des Rechts] is defined by its limitation to deeds, and thus defined by its ignoring of disposition. For Aristotle, however, this is a matter simply of the modality of legal rules and their fulfillment, but not of their meaning. It is a matter of their “how,” but not their “why.” The legal rule refers to virtuous deeds, but it aims at disposition. Law [Recht] links deeds and disposition in the same way that education does:

The virtues … we acquire by first having actually practised them, just as we do the arts. We learn an art or craft by doing the things that we shall have to do when we have learnt it: for instance, men become builders by building houses, harpers by playing on the harp. Similarly we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts. This truth is attested by the experience of states: lawgivers make the citizens good by training them in habits of right action – this is the aim of all legislation, and if it fails to do this it is a failure; this is what distinguishes a good form of constitution from a bad one.¹²

      Education signifies habituating ourselves to act in certain ways so as to give rise to a disposition that is realized in these actions, whose deeds are these actions. Actions and deeds therefore precede disposition: “The virtues … we acquire by first having actually practised them.”¹³ Education is a process that leads through actions to capabilities and dispositions. The creation of an interior and one’s own necessarily proceeds through externality:

      Persons in the states mentioned repeat propositions of geometry and verses of Empedocles; students who have just begun a subject reel off its formulae, though they do not yet know their meaning, for knowledge has to become part of the tissue of the mind, and this takes time.¹⁴

      Moral education must proceed through the repetitive performance of deeds in order to create a virtuous disposition, just as a student learns by repeating words, by speaking them as though he would and could speak them – such students “talk in the same way as actors speaking a part.”¹⁵ An external rule and its externally repeated fulfillment in actions where we feign action are required to complete the process of education.

      This is precisely where we can situate the Greek conception of law: law is the sustained moment of externality through which every educational process must proceed. The Greek conception of law is pedagogical: “it will be important for the legislator to study how and by what courses of training good men are to be produced, and what is the end of the best life.”¹⁶ Law is an authority for moral education. On the Greek view, this orients and thus justifies law’s externality, including the violence that it uses and the fear that it provokes. Law has an “educational mission.”¹⁷ Its “lawful” human being is the incipiently virtuous human being.

       2 Rome

      While the telos of Greek law is education in virtue, an essential feature of the Roman conception is to stretch the link between law and virtue so much that the externality of law obtains a positive existence. Roman law also presupposes “moral rules or Roman religious rules,”¹⁸ but it no longer views law [Recht] itself as able to create morals – certainly not all by itself, as Aristotle thought.

Cicero thus describes the difference between the Roman conception of law [Gesetz] and that of the “great philosophers,” and therefore of the Greeks, as follows:

      Philosophers have taken their starting point from law [a lege] …, they think that its name in Greek [nomos] is derived from “giving to each his own” [nemein], while I think that in Latin [lex] it is derived from choosing [legere]. СКАЧАТЬ