Autor: Strauss, Leo

Buch: Natural Right and History

Titel: Natural Right and History

Stichwort: Naturrecht: Aristoteles (Unterschied zu Plato); synderesis; Averroes; Marsilius von Padua: Naturrecht = konventionelles Recht

Kurzinhalt: A right which necessarily transcends political society, he gives us to understand, cannot be the right natural to man, who is by nature a political animal ... Aristotle says explicitly that all right--hence also all natural right--is changeable ...

Textausschnitt: 156a To turn now to the Aristotelian natural right teaching, we have to note first that the only thematic treatment of natural right which is certainly by Aristotle and which certainly expresses Aristotle's own view covers barely one page of the Nicomachean Ethics. In addition, the passage is singularly elusive; it is not illumined by a single example of what is by nature right. This much, however, can safely be said: according to Aristotle, there is no fundamental disproportion between natural right and the requirements of political society, or there is no essential need for the dilution of natural right. In this, as well as in many other respects, Aristotle opposes the divine madness of Plato and, by anticipation, the paradoxes of the Stoics, in the spirit of his unrivaled sobriety. A right which necessarily transcends political society, he gives us to understand, cannot be the right natural to man, who is by nature a political animal. Plato never discusses any subject--be it the city or the heavens or numbers--without keeping in view the elementary Socratic question, "What is the right way of life?" And the simply right way of life proves to be the philosophic life. Plato eventually defines natural right with direct reference to the fact that the only life which is simply just is the life of the philosopher. Aristotle, on the other hand, treats each of the various levels of beings, and hence especially every level of human life, on its own terms. When he discusses justice, he discusses justice as everyone knows it and as it is understood in political life, and he refuses to be drawn into the dialectical whirlpool that carries us far beyond justice in the ordinary sense of the term toward the philosophic life. Not that he denies the ultimate right of that dialectical process or the tension between the requirements of philosophy and those of the city; he knows that the simply best regime belongs to an entirely different epoch than fully developed philosophy. But he implies that the intermediate stages of that process, while not absolutely consistent, are sufficiently consistent for all practical purposes. It is true that those stages can exist only in a twilight, but this is a sufficient reason for the analyst--and especially for the analyst whose primary concern is with guiding human actions--to leave them in that twilight. In the twilight which is essential to human life as merely human, the justice which may be available in the cities appears to be perfect justice and unquestionably good; there is no need for the dilution of natural right. Aristotle says, then, simply that natural right is a part of political right. This does not mean that there is no natural right outside the city or prior to the city. To say nothing of the relations between parents and children, the relation of justice that obtains between two complete strangers who meet on a desert island is not one of political justice and is nevertheless determined by nature. What Aristotle suggests is that the most fully developed form of natural right is that which obtains among fellow-citizens; only among fellow-citizens do the relations which are the subject matter of right or justice reach their greatest density and, indeed, their full growth. (Fs)

157a The second assertion regarding natural right which Aristotle makes--an assertion much more surprising than the first--is that all natural right is changeable. According to Thomas Aquinas, this statement must be understood with a qualification: the principles of natural right, the axioms from which the more specific rules of natural right are derived, are universally valid and immutable; what are mutable are only the more specific rules (e.g., the rule to return deposits). The Thomistic interpretation is connected with the view that there is a habitus of practical principles, a habitus which he calls "conscience" or, more precisely, synderesis. The very terms show that this view is alien to Aristotle; it is of Patristic origin. In addition, Aristotle says explicitly that all right--hence also all natural right--is changeable; he does not qualify that statement in any way. There exists an alternative medieval interpretation of Aristotle's doctrine, namely, the Averroistic view or, more adequately stated, the view characteristic of the falasifa (i.e., of the Islamic Aristotelians) as well as of the Jewish Aristotelians. This view was set forth within the Christian world by Marsilius of Padua and presumably by other Christian or Latin Averroists. According to Averroes, Aristotle understands by natural right "legal natural right." Or, as Marsilius puts it, natural right is only quasi-natural; actually, it depends on human institution or convention; but it is distinguished from merely positive right by the fact that it is based on ubiquitous convention. In all civil societies the same broad rules of what constitutes justice necessarily grow up. They specify the minimum requirements of society; they correspond roughly to the Second Table of the Decalogue but include the command of divine worship. In spite of the fact that they seem to be evidently necessary and are universally recognized, they are conventional for this reason: Civil society is incompatible with any immutable rules, however basic; for in certain conditions the disregard of these rules may be needed for the preservation of society; but, for pedagogic reasons, society must present as universally valid certain rules which are generally valid. Since the rules in question obtain normally, all social teachings proclaim these rules and not the rare exceptions. The effectiveness of the general rules depends on their being taught without qualifications, without ifs and buts. But the omission of the qualifications which makes the rules more effective, makes them at the same time untrue. The unqualified rules are not natural right but conventional right.1 (Fs) (notabene)

Kommentar (24/06/08): Cf. Voegelin, Anamnesis VEAN_32_6

160a There is a meaning of justice which is not exhausted by the principles of commutative and distributive justice in particular. Prior to being the commutatively and distributively just, the just is the common good. The common good consists normally in what is required by commutative and distributive justice or by other moral principles of this kind or in what is compatible with these requirements. But the common good also comprises, of course, the mere existence, the mere survival, the mere independence, of the political community in question. Let us call an extreme situation a situation in which the very existence or independence of a society is at stake. In extreme situations there may be conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law. A decent society will not go to war except for a just cause. But what it will do during a war will depend to a certain extent on what the enemy--possibly an absolutely unscrupulous and savage enemy--forces it to do. There are no limits which can be defined in advance, there are no assignable limits to what might become just reprisals. But war casts its shadow on peace. The most just society cannot survive without "intelligence," i.e., espionage. Espionage is impossible without a suspension of certain rules of natural right. But societies are not only threatened from without. Considerations which apply to foreign enemies may well apply to subversive elements within society. Let us leave these sad exigencies covered with the veil with which they are justly covered. It suffices to repeat that in extreme situations the normally valid rules of natural right are justly changed, or changed in accordance with natural right; the exceptions are as just as the rules. And Aristotle seems to suggest that there is not a single rule, however basic, which is not subject to exception. One could say that in all cases the common good must be preferred to the private good and that this rule suffers no exception. But this rule does not say more than that justice must be observed, and we are anxious to know what it is that is required by justice or the common good. By saying that in extreme situations the public safety is the highest law, one implies that the public safety is not the highest law in normal situations; in normal situations the highest laws are the common rules of justice. Justice has two different principles or sets of principles: the requirements of public safety, or what is necessary in extreme situations to preserve the mere existence or independence of society, on the one hand, and the rules of justice in the more precise sense, on the other. And there is no principle which defines clearly in what type of cases the public safety, and in what type of cases the precise rules of justice, have priority. For it is not possible to define precisely what constitutes an extreme situation in contradistinction to a normal situation. Every dangerous external or internal enemy is inventive to the extent that he is capable of transforming what, on the basis of previous experience, could reasonably be regarded as a normal situation into an extreme situation. Natural right must be mutable in order to be able to cope with the inventiveness of wickedness. What cannot be decided in advance by universal rules, what can be decided in the critical moment by the most competent and most conscientious statesman on the spot, can be made visible as just, in retrospect, to all; the objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.1 (Fs)