Plato, Aristotle, Nietzsche

Introduction

Through the historical trajectory of the philosophy of law and justice, beginning with Plato’s Crito, continuing through Aristotle’s Politics, and culminating, for our purposes, in the thought of Friedrich Nietzsche, we can see a question emerge concerning the validity of the idea of ‘natural law’ as a philosophical theory. By the time of Nietzsche, the philosophical propositions that had undergirded the philosophy of natural law had begun to falter—specifically, the belief in an Order and Reason scaffolding the apparent chaos of the changeable, phenomenal world—and, with his critique, finally proved untenable. There is nothing natural to natural law, nothing unchanging to which law might be anchored and through which law might be authorized. All law is convention. Far from being a simply modern rejection of the ancients and the divine, in Nietzsche we see exposed a metaphysical contradiction at the heart of the philosophy of natural law, a contradiction that Nietzsche, as a student of philosophy and of history, had inherited. Indeed, Nietzsche’s philosophy is not a radical break with the philosophy of natural law, but instead draws out the implications of the theory to their troubling conclusions. In Nietzsche we see that to ground law and politics in some unchanging metaphysic, as we see in the ancients, is to fundamentally misunderstand the nature of politics as a discipline, which is to say, to miss the contingency and necessity of human reality from which law and politics springs.

I. Obligation and Ideality in Plato’s Crito

In Plato’s Crito, the disconnect between ideal reality—the realm of reason and justice, as he conceives it—and material necessity is profound. Plato, not naively, constructs his dramatic dialogue around this gap, and in fact uses it to make his argument. To begin, Socrates’ response to Crito’s “eagerness” is to remind his friend of the sort of man he is, one “who listens to nothing within [him] but the argument that on reflection seems best to [him].”¹ Socrates will be led by reason alone, and not by fear or self-interest. To define “best” we need look no further than the next page of the text: the best is that which contributes to the end of “the good life,” not simply living, and “the good life, the beautiful life, and the just life are the same.”² So the best is that which is good, beautiful, and just, which for Plato always go together and are always mutually defined. Socrates’ initial insistence that he will only listen to the argument that “seems best” means that he will only listen to the argument that is committed to the good, the just, and the beautiful.

Now, to define these terms is a challenge. Plato provides no definition here, and has Socrates instead invoke his and Crito’s past conversations. Crito remembers the meanings of the good, the just, and the beautiful, and remembers that they are mutually independent, but the Crito does not give us the definition which its eponymous figure recalls. If we maintain our focus on the Crito alone, we must accept this equation, and infer what we can from the surrounding dialogue. We know that Socrates’ adheres to the best argument, because to do otherwise would be to “harm and corrupt that part of ourselves that is improved by just actions and destroyed by unjust actions.”³ The good life is what matters, not simply living; if to follow the argument that is not best causes one to commit injustice, then, necessarily, one is not pursuing the good life. The good life is the beautiful and the just life. The extension of this argument follows: “One should never do wrong in return, nor mistreat any man, no matter how one has been mistreated by him.”⁴ Injustice is wronging or mistreating another, even if that other has wronged or mistreated oneself. Again, Socrates does not define wrong or mistreatment, but this, we will see, is purposeful. Plato constructs the argument in such a way as to draw Crito, and we his readers, into the swirl of terms and the assumptions we attach to them. The challenge we encounter in defining the good, the just, and the beautiful, along with their negatives, injustice and wrong, is deliberate, and serves to make Plato’s negotiation of the gap between the ideal and the material all the more potent.

Regardless, a preliminary definition will do: justice is to do no wrong to nor mistreat another; such is the good and beautiful life. For now, we must content ourselves with this negative and circular framework for our understanding. Having established this groundwork (and again, it should be noted, on the basis of prior argument and past conversation), Socrates enters into the famous speech of the Laws which proves so disconcerting to modern readers. Socrates imagines that he and Crito are confronted by “the laws and the state” as they are making their escape, and that they accuse him of trying to “destroy” them, “the laws, and indeed the whole city,” through his resistance.⁵ “Or do you think it possible,” they continue, “for a city not to be destroyed if the verdicts of its courts have no force but are nullified and set at naught by private individuals?”⁶ If Socrates were to follow the course of action proposed by Crito, according to the Laws he would be nullifying their validity. Their authority would be without force. The Laws take the argument a step further, claiming that such a nullification would be “retaliation” on Socrates’ part, an assertion by him of some “right” over and against the Laws, with the end of their destruction.⁷ We can see, then, that the “wrong” or “mistreatment” which Socrates refers to in prefacing this argument of the Laws need not be what we might typically understand as wrong. We might interpret “wrong” as committing some harm, doing some violence or damage—simply escaping would not seem to do any of this. What’s more, Socrates’ repudiation of retribution—one must not do wrong to another, even if another has done wrong to you—would seem to justify his escape from the Laws which seek such a retributive violence against him. This, Crito argues: “Your present situation makes clear that the majority can inflict not the least but pretty well the greatest evils if one is slandered among them.”⁸ The retributive violence of the Laws is an evil inflicted upon Socrates by the many. Socrates’ situation is not the result of any injustice on his part, but the slander of the people. Following this line of reasoning—that 1) retribution is unjust, and 2) Socrates was not convicted justly—it would seem that Socrates’ escape would be the just course of action. But Socrates does not agree. He appears to differ somehow on the second point. Though seeking to do violence to him, and not for any real crime—no actual wrong, or mistreatment, or other injustice committed on his part—the Laws still hold some authority over Socrates.

The Laws, speaking through Socrates, claim that he has no “right to retaliation” against them.⁹ They assert that: “your country is to be honored more than your mother, your father and all your ancestors, that it is more to be revered and more sacred, and that it counts for more among the gods and sensible men, that you must worship it, yield to it and placate its anger more than your father’s.”¹⁰ For Socrates to assert some individual right, to claim that the Laws are unjust in their conviction, would be just as unjust, just as unvirtuous, as if Socrates were to strike his slanderous accuser. He is given the option to “persuade” or “obey” the Laws, but to baldly defy them and flee would be a great injustice. Will “you say that you are right to do so,” they ask of Socrates, “you who truly care for virtue?”¹¹ Considered as retaliation, Socrates’ flight from the Laws would therefore indicate that he cares more for living than for the good life and would thus discredit his entire philosophical project. Socrates is bound by his own reason to adhere to, what appears to us as, an unjust verdict.

At this juncture, then, our understanding turns on the Laws’ notion of retaliation. There seems to be a slippage between Socrates’ definition of the just and the Laws’ definition of the just but, without any positive content available to us, pinpointing the disconnect is not possible. With retaliation, however, the Laws give us more material. Socrates has no right to refuse the justice of the Laws, and must honour them more than he does his own parents, because, as the Laws tell him, “We have given you birth, nurtured you, educated you, we have given you and all other citizens a share of all the good things we could.”¹² Socrates did not make his own life, but was given the very conditions of existence through which he was able to think about and pursue the good life at all. He, like “every Athenian,” was given “the opportunity, once arrived at voting age and having observed the affairs of the city and us the laws ... [to] take his possessions and go wherever he please[d].”¹³ If Socrates thought the laws of Athens unjust, he could have left. By staying, however, by taking advantage of the good things offered by the Athenian state, he (implicitly or otherwise) agreed to be ruled. By staying Socrates came “to an agreement with [the Laws] to obey [their] instructions.”¹⁴ Regardless of his philosophical convictions, regardless of what reason might dictate, Socrates is bound by his agreement to obey the Laws. The following points that they make only drive the nail deeper. By the end of the dialogue, there is little room for disagreement: “Be persuaded by us who have brought you up, Socrates. Do not value either your children or your life or anything else more than goodness, in order that when you arrive in Hades you may have all this as your defense before the rulers there.”¹⁵ There will be no resolution apart from death in this life. Indeed, Socrates may be vindicated in Hades, but according to both the law and reason, Socrates must die. As he says to Crito, the “echo of these words resounds in me, and makes it impossible to hear anything else.”¹⁶ Socrates, the great defender of the good and the just, appears to go to his death upholding an unjust ruling. The contradiction is glaring.

I argue that Plato presents this contradiction knowingly. In the Crito we find a counter-work to the Republic, a picture of ‘reality’ as opposed to ‘ideality.’ Where in the Republic the ideal city is directed in every way to the good, the just, and the beautiful, and Plato takes great pains to make his understanding of these terms clear, in the Crito we see how law plays out in a real city. The good, the just, and the beautiful receive nothing more than a circular definition because these are terms of convention, of agreement. The “good things” which are given by the state to its citizens are good because people agree to obey in exchange for them. The “good” is what is valued, in practice, over the threat of punishment. The agreement is in this sense a wager that the individual will not fall on the wrong side of the law, and so will be able to reap its benefits without fear of harm. The good can be, to some degree, equated with goods—that is, with life, and nurture, and education.¹⁷ The good that Socrates’ and Plato’s philosophies are directed toward is secondary in the everyday life of the citizen, and Socrates, whether intentionally or not, has bought into that lower good, and all of its attendant legal consequences.

Thus, he who advocated that we should not “follow the opinion of the many and fear it,”¹⁸ but rather follow the opinion of the expert, the good man (who, in matters of justice, would be the philosopher, i.e., him), must at last accept their ruling. The freedom that Socrates has is a freedom within the strictures of law. He is bound by both agreement and by reason to obey, even if in what he obeys an injustice will be committed against him.¹⁹ His freedom is in not privileged over rule of law and talk of “rights” is quickly quashed. Being a free man, a free citizen, does not entail absolute freedom. Furthermore, in portraying the Laws as superior to one’s parents and the gods, Socrates places himself squarely in a position of submission. Though he is given the opportunity to persuade them, he does so from a position of inequality. He does not get to contribute to their final decision. So, in all of this, his virtue, his practice of living according to the “best” reasons, leads him to his tragic end. The virtuous choice is to submit to the unvirtuous, the just to the unjust, the right to the wrong, all for the sake of the preservation of the agreement. The ideal is sacrificed on the altar of contingency.

Whether Socrates (and Plato) actually support such a view is widely debated. Ann Congleton, whose paper “Two Kinds of Lawlessness” (1974) has been influential on this issue, talks about the gap between the ideal law and the material law in terms of a “higher and a lower lawlessness.” ²⁰ The lower lawlessness is that advocated by Crito, an outright rebellion against the material reality of the law. The higher lawlessness is that of Socrates who, in his concession to the material reality of the law, the demand for blood, for retribution, is in fact free from the law, because he puts no stock in material reality and its consequences whatsoever. His submission is a sort of gamble in hopes that his sacrifice will point others toward the higher law(lessness)²¹ that he practices. Paul Diduch (2014) has argued that the speech of the Laws is a rhetorical move by Socrates employed to persuade Crito to agree with his own opinion, though Crito has a much less “sophisticated understanding” of the good and of virtue.²² Eugene Garver (2012) argues that the rhetoric Socrates employs is not only for the purpose of persuading Crito but the Laws themselves, a task in which he ultimately fails; what the Crito shows, instead, is that “Philosophy and politics ... can only meet in silence.”²³ Geoffrey Steadman (2006) takes a historical approach, arguing that the Crito is not about philosophy and politics at all, but is a depiction of an actual Athenian legal procedure, the “graphê paranomôn,” by which a citizen could “indict[]” an “illegal proposal[]” and, if successful, “repeal” it.²⁴ Regardless, the scholarly dispute is wide-reaching. What is most significant for our inquiry is the challenge that this disconnect between the ideal law and the material law poses, the impinging of necessity upon reason and the good, and the plight of the philosopher seeking an eternal truth in the chaotic realm of politics. In the Crito, we see Plato engage with this realm of particularity and change in an attempt to grapple with the practical application of his philosophy, a mode of engagement with the world that is typical of his chief student, Aristotle, and of Aristotle’s political philosophy especially.

II. Freedom and Contingency in Aristotle’s Politics

To reformulate our initial concern through the lens of our discussion of Plato, by way of an introduction to Aristotle’s philosophy, we can say that Plato’s ontology—in which the highest order of reality is Reason (Logos; the One), and the realm of the Forms, which are Ideal—is deeply challenged by the contingencies of material reality. His metaphysical ground does not hold against the obligations of physical and political reality. Socrates, who believes in an eternal truth of law according to reason, ultimately must submit to law according to necessity. Whether the Crito is in fact intended as a critique, or whether it is an acquiescence to an unjust order on Plato’s part, is beside the point: Socrates submits. The truth of the good, the just, and the beautiful is met with the force of law and is overcome.

Approaching Aristotle, then, we encounter the same problem. Though Aristotle’s materialism differs greatly from Plato’s rationalism,²⁵ their ontological commitments remain the same. For Aristotle, “every social organization is directed at some good purpose,” at some ideal, and the “state or political community, which is the highest of all ... aims at ... the highest good.”²⁶ Like Plato, he is concerned with the good. Like Plato, he is also concerned with impediments to the good, the realities that might prevent one from attaining it. But unlike Plato, we approach the gap between the good and the actual in Aristotle from a bottom-up perspective, and so we see the ontological commitments of his philosophy from a different perspective as well. We must think the law and the good differently if we are to think with Aristole.

Upon making his prefatory remarks about the ends of the social organization, Aristotle proceeds to study the “compound” of the organization by way of “analy[sis] into [its] simple elements.”²⁷ He is looking for a “scientific result,”²⁸ rather than a reasoned idea. The origin of the social organization is, for Aristotle, the family, and more specifically, “the union of male and female,” those “who cannot exist without each other.”²⁹ From this primary relation Aristotle extends his study to the master-slave relation and the father-child relation.³⁰ These three dichotomies constitute the household, which is the foundation of the Aristotelian society. He then builds upward and outward, from family to village to state, but considers all the while the necessary grounding of the whole in the biological (which is to say, natural) relation of male and female. From this analysis, Aristotle is able to make a statement about the nature of human beings as a species. Given the necessary basis of social organization in the family, and the ubiquity of extra-familial organizations, Aristotle concludes that “man is more of a political animal than bees or any other gregarious animals.” There are no societies of wolves or birds, no culture among the animals—their nomos is equivalent to or limited by their bios. The human nomos, on the contrary, is political by nature, extending outward from the bios of the family to encompass those who are not related by blood. Furthermore, “Nature,” Aristotle claims, “makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech”—society is the natural outcome of speech, that uniquely human faculty.³¹ As such, Aristotle can say that the “social instinct is implanted in all men by nature.”³² Society is the natural end, or telos, of speaking and reasoning creatures.

If society is the natural end of the human creature, then its perfection should be the aim of those concerned with the good. The impediment to the perfection of society is the ambivalent position between “good and evil” that, like speech, is unique to the human creature.³³ Man “when perfected,” Aristotle argues, “is the best of animals, but, when separated from law and justice, he is the worst of all.”³⁴ With his capacity for reason, man is capable of greater goods and greater ills than any other creature. In the pursuit of perfection, then, “law and justice” are of the utmost importance, because it is justice that is “the bond of men in states.”³⁵ Aristotle builds to the same point as Plato, from the opposite direction. From an examination of the parts he arrives at the whole, and so too, at what is best—that men should pursue justice, because it will bring about the good life. Socrates, in reverse, considers what is best by reason, and so arrives at what he should do in the particular. Aristotle and Plato simply begin at different points of the hermeneutic circle, but given their conclusions, and the terms employed in their arguments, we can see that they do in fact share the same ontology. For our consideration here, we can say with regard to Aristotle that this is a distinctly teleological sense of being, a teleology which, in the pursuit of the final and best end, faces the same impediments as Plato and Socrates in the Crito—that is, the contingency and necessity of a changeable world.

So, is Aristotle’s political project more successful than Plato’s, or is it just retreading the same terrain in a different light? In the structure of Aristotle’s Politics (working from the part to the hole), we have a productive advancement of Plato’s thought, an elucidation of the simple pieces that contribute to a complex problem that is not provided in a dramatic text like the Crito. Through his “scientific” analysis we can draw more thorough conclusions about the disconnect or gap between the ideal law and the material law.

Aristotle tells us that “some should rule and others be ruled,” and that this is “not only necessary, but advantageous.”³⁶ In the communal pursuit of the highest good, it is good that those who are, by nature, more just and more noble should rule. This, in Aristotle’s system, we can derive from the ‘natural’ leadership of the husband over the wife, the master over the slave, and the father over the child. The first term in each of these relations rules because he (and it is always he in Aristotle) is fitted by nature to do so. Aristotle sees the same division of ruler and ruled in the constitution of the human being—the “soul rules the body,” and the “intellect rules the appetites.”³⁷ And yet, as we saw above, man as the reasoning animal is capable of both “good and evil,” and his pursuit of the good is not always perfect. Aristotle is aware of the debate about what, precisely, is natural: some would argue that “superior power is only found when there is superior excellence of some kind,” and so “power seems to imply virtue”; others argue that such rule is only “the rule of the stronger,” and no virtue is implied.³⁸ Regardless, what is wrong or unjust for Aristotle is the “abuse” of authority, which is “injurious to both” ruler and ruled. The “interests” of “part and whole, of body and soul, are the same.”³⁹ Thus, rule is natural, and is best for society—even if the potential for abuse exists. Those who are superior by nature rule over those who are inferior, because together they constitute a whole akin to a human person. For the superior not to rule would be as absurd, to Aristotle, as the soul not ruling over the body, or the father not ruling over his children.

But in Aristotle’s acknowledgment of this potential for abuse of the law and authority, we are given an opening as readers that is not afforded by the resounding words of the Laws at the end of the Crito. If Aristotle’s aim is to “consider what form of political community is best of all,” then we “must therefore examine not only constitutions that actually exist in well-governed states, but also any theoretical forms which are held in esteem; this way, what is good and useful may be brought to light.”⁴⁰ Aristotle is always scientific, taking great pains to consider what is actual, but he measures the actual against the ideal and so is able to use the slippage between them to deepen our understanding. Indeed, Clifford Angell Bates Jr. argues that, despite the strong background of ontology and metaphysis in Aristotle, which has been much discussed with regard to the Politics, the emphasis on actual constitutions, on the “politeia,” is of continued significance to us today.⁴¹ Aristotle, unlike Plato, engages with the material of politics as a reality, not a shadow of the ideal, and so is able to fruitfully engage with the dialectic between the two. As Bates argues, the “political community exists in an ontological state of contingency, as something that comes to be and passes away ... [because] praxis is a condition of contingency and temporality, any attempt to understand such a thing must seek to know it on its own terms, without imposing an outside or alien framework on it.”⁴² Politeia, or we might say simply, the law or laws, is a mediation between the material and the ideal, participating in both, but entirely neither. We must consider “constitutions that actually exist” and “theoretical forms” in order to talk about the politeia—the constitution or laws—that mediate between the two.⁴³

The necessity of law arises from the form of the state: the “nature of a state is to be a plurality.”⁴⁴ Where the individual and the household, being the most basic elements of society, each exist as a “unity,” the state exists as a multiplicity of unities—it must always be reckoned with in the plural, and indeed, it gains its strength from its plurality. A diversity of “kinds” gives a diversity of capacities.⁴⁵ Aristotle goes so far as to say the “elements out of which a real unity is to be formed must differ in kind.”⁴⁶ So the reality of the state is always such that it is composed of multiple heterogeneous parts. Though men can be said to be ontologically similar, in the domain of political praxis they must be treated as qualitatively different and organized in such a way that their differences are most encouraged and utilized. Aristotle expects difference, and the contingency that difference entails, and his discussion flows from this proposition.

In addition to the difference between men, Aristotle posits the changeability of men, and considers “whether it is or is not beneficial to make any change in the laws of a country” so as to account for change in the country’s constituents.⁴⁷ Here we see, perhaps, one of the greatest departures from Plato, the acknowledgment that a law in practice may not be good for all people. Aristotle concludes, in answer to his question, that

Even when laws have been written down, they ought not always to remain unaltered. As in other sciences, so in politics, it is impossible that all things should be precisely set down in writing; for enactments must be universal, but actions are concerned with particulars. Hence we infer that sometimes and in certain cases laws may be changed.⁴⁸

Aristotle identifies a danger in change, however: “the habit of lightly changing the laws is an evil,” likely to produce “errors,” and conducive to “disobedience.”⁴⁹ The danger, here, is given by the nature of the law, and the force behind it that lends it authority. As Aristotle goes on to write, the “law has no power to command obedience except that of habit, which can only be given by time.”⁵⁰ The law commands by habit; the citizen learns to obey over time. So we see here, even with his counterpoint, that Aristotle is chiefly concerned with the law in the world of praxis and particularity, the world of change over time. Though he seeks to discover the highest good and end of the state—that is, the ideal principal toward which the state tends—his inquiry is thoroughly based in the material realm. In fact, we might say that the material is measured against the ideal, and that the law, the practice and institution of politeia, is the medium of transformation by which the material is progressively shaped into the form of the ideal. The rule of law is better than “the will of man, which is a very unsafe rule,”⁵¹ but Aristotle recognizes that law, no matter how ideal, must still be enacted and obeyed by willing humans. Further, we can say that the medium of transformation that is the law exists within and between humans, though it appeals to an authority that is posited as exterior to them. Herein lies the slippage that both Plato and Aristotle deal with, but which in Aristotle is presented more clearly for interrogation. The ideal is not unreal to him, but it is always manifested through the material—ideal ends are attained through material means.

So, then, the teleological structure of Aristotle’s political philosophy is necessarily beholden to the contingencies of human existence. In a sense, man is fated (by nature) to be free to pursue good or evil, justice or injustice, the highest good or his own self-interest. Though it can be said that all forms of (good) social organization, whether royalty, aristocracy, or polity,⁵² tend toward the “common good of all,”⁵³ there are always “difficulties about these forms of government” that must be examined, for “anyone making a philosophical—not merely a practical—study of the various sciences ... should set forth the truth in every particular.”⁵⁴ Why, if “all men cling to justice of some kind,”⁵⁵ is justice so often not attained? The answer Aristotle proposes speaks directly to the slippage between ideal and material that we have been considering: “Men judge erroneously when they fail to consider justice relatively to particular persons ... [they] are speaking of a limited and partial justice, but imagine themselves to be speaking of absolute justice.”⁵⁶ Men seek the good, but determining whether the good striven for is “partial” or “absolute” is a constant challenge. Man is fated to be free by reason of his finitude, a paradoxical fettering of his reason to the particularity and partiality of his position in relation to the ideal or absolute. The human creature can choose—whether that choice is free or determined, he cannot say. This indeterminacy is at the root of the disconnect, the gap, the slippage between material and ideal, when it comes to the justice in which Aristotle is interested.

Aristotle claims that there “are three things which make men good and virtuous; these are nature, habit, and rational principle.”⁵⁷ If we accept Aristotle’s teleological ontology, and so accept that all things tend to the end which they contain as potency within themselves, then we should say that virtue and goodness, which are made or produced by nature, habit, and reason, are inevitable. Excluding external barriers, the human creature should naturally tend toward the good (especially since humans are rational by nature). And yet, as we have already seen, Aristotle clearly does not think that this happens naturally, or if naturally, it does not happen easily. There appears to be much resistance to the ‘natural’ generation of goodness and virtue from the very creatures said to be most naturally inclined to, and indeed, the only creatures capable of, goodness. Having analyzed the various constitutional forms in existence, the move to discuss the “perfect state”⁵⁸ seems a failure before it has even begun. As with Plato, however, I will argue that Aristotle is not naïve in his pursuit of perfection and that, despite his ontological commitments, he is keenly aware (even more so than Plato) of the exigencies of everyday life.

Aristotle’s perfect state should be determinable by the “science” of government, which has both to consider “what government is absolutely the best” and also “what kind of government is adapted to particular states.”⁵⁹ The state and the government are not one but exist in relation with each other. The perfect state, then, is that in which the government is perfectly fitted to the citizens who constitute the polis. With regard to the state, Aristotle cites his Nicomachean Ethics to remind his readers of what the state should be aimed toward: the “happy life.”⁶⁰ For Aristotle, the “happy life is the life according to virtue lived without impediment, and ... virtue is the mean.”⁶¹ It follows, then, that “the life which is in a mean, and in a mean attainable by every one, must be the best.”⁶² As we have remarked already, however, Aristotle recognizes that the state is necessarily made up of a plurality, and so the pursuit of the happy life, the life lived according to the virtuous mean, and attainable by every one, can prove a challenge. To this end, it is better that a state be “composed, as far as possible, of equals and similars; and these are generally the middle classes.”⁶³ In such a society the mean will be most readily available to the largest number of people, because the poor and the rich (who have greater impediments to the virtuous life than the middle class—respectively, necessity and avarice) will be very few in proportion. The “best form of a state,” therefore, is that in which the “most desirable” form of life is attainable by the most people.⁶⁴ A large middle class is important because, for Aristotle, the best form of life is that in which the necessary “external goods” and “goods of the body” are met sufficiently—i.e., insofar as the individual might make use of them—and the “goods of the soul” are emphasized.⁶⁵ The “goods of the soul” are what make the happy and good life, because “the quantity of happiness anyone has is equal to how much he has of virtue and wisdom, and of virtuous and wise action.”⁶⁶ The happy life is the virtuous life, and the virtuous life is the just life, so the form of government that is most just, and therefore encourages the greatest virtue in its citizens, will be the happiest and most just state. It would be perfection.

But again, we see that Aristotle arrives at this conclusion by his reasoning, while in practice—naturally, habitually—the human creature tends in the opposite direction. It would seem that humanity, by nature, is not guaranteed to attain virtue. Habit is little help either, influenced as it is by the changeable desires of people. Reason is the only sure path for the attaining of virtue, but reason of the sort that Aristotle propounds is not readily available to the many of the state. The perfect regime, it would seem, is out of reach, a perpetual ideal never to be realized in materiality. We find ourselves once more at the impasse reached by Socrates in Plato’s Crito. Ideality must submit to obligation. Reason must submit to contingency. The free man is not free, because his desires too easily corrupt the institutions that seek the perfection of his virtue. He must submit to an absolute principle, an abstract, depersonalized manifestation of rationality, so that, when buffeted by the storms of existence and the passions of his heart, the law will still stand. He who does not submit is either “a beast or a god: he is no part of a state.”⁶⁷ The human creature, the political animal, naturally disposed to political life, must accept the rule of law—even if its absolute ruling does not fit his particular circumstances; even if his reason dictates otherwise—because to do otherwise would be to undermine the authority that is the necessarily imperfect realization of the perfect regime that the rational man seeks. So, then, we can conclude that the perfect state, the object of Aristotle’s study, is an impossibility, rendered so by the naturally changeable desires of men, and the impracticability of applying absolute reasoning to habitual and contingent human relations. Through his scientific inquiry, Aristotle is able to elucidate these two realities which in Plato’s Crito are never fully elaborated. Socrates’ obligation and acquiescence to the arbitrary justice of the Laws is the willing abnegation of freedom by a rational man who sees in the imperfect a kernel of the perfection which he desires, which can never be attained, but which can be drawn ever closer by the mediation of the law.

III. Abandoning Ontology: From the Ancients to Nietzsche

We have seen that Plato and Aristotle’s ontological commitments lead them to the gap or disconnect between ideality and materiality which, under the pressures of contingency and necessity, requires them to compromise their visions of law. The perfect state cannot be realized in the world of actuality. Though we have demonstrated that Plato and Aristotle are not naïve in their political philosophies, and that they recognize the numerous challenges posed by the realities of political existence to an absolute idea of virtue and goodness, the impasse remains. The freedom of the citizen is a limited freedom and, in Socrates’ case, leads to his imprisonment and execution. If we commit ourselves, with Plato and Aristotle, to an ontology grounded in a world of ends beyond the materially existent, our political praxis will always involve a resignation or fatalism that makes counter-arguments for realpolitik and raison d’État too acceptable, too readily available. Violence will continue to be committed in the name of the law and justice, though violence is by no means good, virtuous, or just. The Socratic ontological framework upheld by Plato and Aristotle is simply not fitted to the practice of just and virtuous politics. Presumptions of natural goodness and natural rationality are not supported by the evidence.

Humans are creatures of appetite and habit before they are creatures of reason, but this is not to say that they are appetitive and habitual in their essence, for indeed, reason is also something of which humans are capable. A new political praxis must begin with existence, considering the contingencies and everyday necessities of real people, living real lives, before it can set about realizing the ideals that it posits. Reason, goodness, virtue—these are taught, not innate; historical, not eternal. This assertion of a “historically effected”⁶⁸ politics should not be understood as an argument for relativity, but rather an awareness of particularity and plurality, of the uniquely human freedom played out over time, which is not confined or determined by the law, but uses its limit or horizon to generate meaning and belonging. To make this idea clear, the remaining pages of this paper will consider two questions: 1) how love and mercy, as championed by the Gospels, and contra to the ancients, might be practiced in and through the law, and 2) how the death of metaphysics and ontology in the work of Friedrich Nietzsche opens philosophy to new forms of being in the world, and specifically, new forms of political being.

What most disturbs me when considering certain political or judicial texts is the ease with which injustice and violence are justified in the name of an ideal. It is this sense of the wrong being made right that is so troubling, that in Plato’s dialogue gets Crito out of bed so early and prompts his frantic petition of escape, that in the Politics leads Aristotle to constantly question the reality and efficacy of the system with which he is concerned. Neither Plato nor Aristotle, I argue, try to justify the injustice that is perpetrated by the law; both the Crito and the Politics set about disentangling the networks of powers and persons and reasons that can make injustice possible. But neither starts from a position that will allow them to go beyond the systems and structures that condition their politico-legal perspectives. Their horizons of reason, order, and hierarchy are determinative, even fatalistic. A contrary idea of law as a mode of social meaning-making, one that sees the person as a person, one founded in interpersonal relation and responsibility, is simply unimaginable. Now, it must be granted that my projection of such an idea of law comes from within my own horizon, and that someone who somehow encountered it centuries from now could just as easily find it be to strange, or even disturbing, as they could find it to be agreeable. Regardless, from my position and to the best of my knowledge, law as meaning-making, relation, and responsibility seems better (in a variation on Socrates’ idiom) to me than the violence that a fatalistic, rigid, absolute system perpetrates and claims to be right.

The necessity of a historical view can here be seen. I find it reasonable to think that, were I an ancient Greek, I would adhere to a similarly deterministic understanding of the world as Plato and Aristotle and would consider my modern doppelganger’s understanding of law to be absurd and impracticable. What’s more, given the demographics of the day, the ancient Greek version of me would likely be a labourer, or even a slave, and not afforded the luxury of these present philosophical musings. So, when I write today of a law that unites rather than divides, that relates rather than distances, that forges commitments rather than enemies, I write from a context that cannot be extricated from the history upon which it is built. The theory is entangled with its background.

In Plato’s Crito, the background makes available no such theory. Though a theory of justice according to the good and the beautiful and the virtuous⁶⁹ is elaborated through Socrates’ and Crito’s discussion, when it is put into practice, brought to bear on Socrates’ situation, it cannot maintain its integrity. At best, Socrates makes a subtle critique of the system; at worst, Socrates affirms the impracticability of his vision. Socrates hold that “one must never do wrong” and that one must not, “when wronged, inflict wrong in return, as the majority believe.”⁷⁰ The law of vengeance, eye for an eye, blood for blood (or lex talionis as it would later come to be formalized) is not acceptable for Socrates. Further, for Socrates “the most important thing is not life, but the good life,”⁷¹ a point which we have already remarked on above. So, if it is the good life that matters, and doing wrong or violence to another so as to maintain one’s life will harm one’s soul, and thus prevent one from living the good life, then one must not do wrong or violence to preserve one’s life. Socrates is clearly against the view of the “majority.” But if Socrates appeals to the city, claims that the city “wronged” him, and that “its decision was not right,”⁷² the Laws will overrule him. In the Socratic system, the individual and the state are not on “equal footing.”⁷³ Socrates is necessarily subordinate to the Laws. If they do violence to him—a wrong in his philosophical system—he cannot retaliate, for they are above him and owe him nothing. The individual is totally beholden to the law, and the law can do with him what it will. Socrates’ ideals remain ideals; the law of love and mercy presented in the Gospels is here nowhere to be found. The mutuality and covenantal meaning of Gospel love and charity has no place in the Socratic framework. The nearest figure is obligation, but that only uni-directional, the individual being obligated to the state. Though full of philosophical arguments for the good, Socrates ultimately acquiesces to an unjust and repressive regime.

Readers find no charity, no mutuality, no covenant in Aristotle’s Politics, either. The law and the state are “directed at some good purpose,”⁷⁴ and yet this purpose is constantly thwarted by men who “wish to enjoy themselves and to gratify pressing desires for things beyond the necessities of life.”⁷⁵ Men make poor judges, resorting to a form of justice concerned only with the “prevention of crime and the encouragement of trade,” and not with “noble actions”—not to mention that so-called justice that serves the interests of the ruler alone, and not those of all.⁷⁶ This is not to ascribe blame to Aristotle; indeed, his political philosophy is more practical and more nuanced than that which we find in Plato’s Crito. The failure of the law is not the product of careless thought on Aristotle’s part. Rather, the failure of the law, with which Aristotle spends a great amount of time grappling, appears to be an inevitability given the nature of the persons with whom he is concerned. Certainly, the “state is a creation of nature” and “man is by nature a political animal,”⁷⁷ but the rationality that is required for the practice of goodness and justice is not so given as the nature and habit that condition the behaviour of humans, and beyond which reason must extend if the justice Aristotle desires is to be made manifest.

The disconnect arises from Aristotle’s ontological commitment to a certain brand of reason, that of the rule of the soul over the body, which Aristotle refers to as “despotical.”⁷⁸ Similarly to Socrates and the Laws, there is no equality between the soul and the body, between reason and interest. The body is valued less than the soul and, in Aristotle’s hierarchy, is akin to those lesser beings who by nature must be ruled: slaves, women, and children. The bodily is denigrated, and so too the lesser halves of the dichotomies of rule that Aristotle establishes. In order to maintain the ontological primacy of Reason and Ideal and Soul, his philosophy must enforce a sharp break in continuity between these dichotomous pairs, perpetuating the rigid framework that continuously subjugates the lesser to the greater in the name of some supposed good. The problems in such a system arise because, in reality, there is no such break, but rather a continuum of relation, a tension between indeterminate poles, a constant sliding of position which, rather than being a threatening instability, is in fact the generative movement that produces meaning between persons. Rather than the uni-directional rule of the law over the individual, as seen in the Crito, or in Aristotle’s hierarchies—master over slave, husband over wife, parent over child—there exists a mutual conditionedness that is always already at work. Such a mutuality is not to say that the parties are qualitatively or even quantitatively equal, but that they are, despite—or perhaps because of—their differences, dependent on, committed to, and responsible for each other. Only in such mutuality can there be love and mercy, which seeks the becoming and growth of all who are involved, not the perpetuation of a hierarchy in the name of a stultifying order. Such a law of order is grounded on a violence that maintains distinctions and divisions, that treats differences as threats that must be quelled by any means and set in their rightful places, submissive and broken. So long as the law is predicated on the ontological commitment to ‘natures’ that corresponds to ‘places’ or ‘positions’ in a social system, it will not attain to the justice that Aristotle idealizes. What’s more, so long as the law is committed to such a vision of reality, for us to think law differently, to imagine not just some imagined ‘best’ but a tangible ‘better’—which, I suggest, would be a law of love and mercy—will be impossible.

In Nietzsche, we see such a different thinking of the law. In part five of Beyond Good and Evil, “A Natural History of Morals,” Nietzsche claims that there “are moralities which are intended to justify their creators before other people.”⁷⁹ He immediately goes on to list others—including the Christian morality which leads one to “want[] to nail himself to the cross and humiliate himself”⁸⁰—but this first assertion encapsulates those that follows. Moralities justify their creators. Put otherwise, moralities are “sign languages of the feelings.”⁸¹ Herein lies the first reversal significant to us. Wherein Aristotle ‘moralities’ are aligned with the ideal and the absolute, in Nietzsche moralities are manifestations of the particular and the personal—indeed, of that most personal of realms, that of feeling. As such, for Nietzsche, “Every morality is ... part of tyranny against “nature,” also against “reason.””⁸² Moralities are against nature and reason, not aligned with them. This is a startling change from the ancients. Nietzsche continues that this tyranny is “not yet an objection” to nature or reason, for “To object, we would have to decree, once again, on the basis of some morality or other, that all forms of tyranny and irrationality are not permitted.”⁸³ There is a confusion, or perhaps an outright collapse of the Aristotelian hierarchy; in fact, Nietzsche’s reframing of the law unveils the confusion that troubles the Aristotelian hierarchy from within, the mutual conditionedness of the body and soul that can only be hidden, never destroyed. From the Nietzschean frame, then, the law is not taken from the realm of the ideal and brought into the world of the material and particular, but rather the particular is elevated to the realm of the ideal and adhered to by a “lengthy compulsion”—that is, by habit.⁸⁴ Habit, that bodily ordering of nature, in contradistinction to the intellectual ordering of nature by reason, is just as important to the functioning of the law. Feeling cannot be ignored, and with feeling, charity and mercy enter the scene.

The change occurs, for Nietzsche, with the Jews and after them the Christians. A lengthy quotation will frame Nietzsche’s point for our discussion:

As long as the utility which rules in moral value judgments is merely the utility of the herd, as long as our gaze is directed only at the preservation of the community and what is precisely and conclusively immoral is sought in what appears dangerous to the survival of the community, there can be no “morality of loving one’s neighbour.” Assuming there existed in society already a constant small habit of consideration, compassion, fairness, kindness, and mutual assistance, assuming that in this condition of society all these drives were already active which later were described with honorable names as “virtues” and which finally were almost synonymous with the idea “morality”: at that time they are not at all yet in the realm of moral value judgments—they are still outside morality. For example, a compassionate action in the best Roman period was called neither good nor evil, neither moral nor immoral. And even if it was praised, this praise brought with it at best still a kind of reluctant disdain, as soon as it was compared with any other action which served the demands of the totality [...]⁸⁵

The morality that ruled in the Roman period did not value “compassionate action,” nor “mutual assistance”—these were “still outside morality.”⁸⁶ Love is not a moral imperative, but a sort of side-effect of nature. Mutuality and charity do not come into consideration when survival is in question. In a pre- or non-Christian morality, the ““love of one’s neighbour” is always something of minor importance, partly conventional, arbitrary, and apparent in relation to the fear of one’s neighbour.”⁸⁷ It is this fear—of violence, of difference—that grounds this form of morality, and that authorizes the use of violence to uphold it. The “strong and dangerous desires,” including the “desire for mastery,” had to be “inculcated and cultivated ... because people constantly needed them for the dangers to the totality, against the enemy of that totality.”⁸⁸ Within the community, these “strong and dangerous” desires must be repressed, and so the “love of one’s neighbour” must be coopted to this end, for the maintenance of the integrity of the totality, but Nietzsche still sees this love as something other than the “morality of the herd,”⁸⁹ which he despises. His argument is complex, here, but in short Nietzsche sees the “mediocrity” and “equality” of the “democratic movement” as an application of the law of love to a system built out of fear.

In On the Genealogy of Morals,⁹⁰ however, we see Nietzsche draw out this complexity, treating the Judaeo-Christian law with respect to its historical development, and eventual integration into the fear-based law of the herd. With the Jews, and the Christians who followed, the “aristocratic value equations (good = noble = powerful = beautiful = fortunate = loved by god)” are inverted. As Nietzsche writes, “only those who suffer are good; the poor, the powerless, the low are the only good people; the suffering, those in need, the sick, the ugly are also the only pious people; only they are blessed by God; for them alone there is salvation.”⁹¹ The “privileged and powerful” are no longer morally superior, fitted by nature to rule.⁹² This is what Nietzsche refers to as the “slave revolt in morality” which could not have been possible from an ancient perspective. Where before history was ruled by the powerful, and justice was determined by their “feelings” alone (so rationalizing rule by might), history under the influence of the Judaeo-Christian law becomes a history of the powerless, the overcoming of injustice through the refusal of power, and the extension of charity to the other, the stranger. The law of the powerless is a “disastrous initiative,” and the “most spiritual revenge” against injustice.⁹³ It is a revenge that proclaims love. In this too, then, history is transformed. Not only does the agency of history shift from the powerful to the powerless, from the violent to the peaceful, transforming justice by which it is authorized from might to mercy, but history is opened up to the possibility of change and of freedom.

Wherein Plato and Aristotle we have seen that freedom is an impossibility, and so the possibilities of change for the better and the willing choice of virtue greatly limited, if not obliterated, the law of love which Nietzsche explores flows from openness. When the law is charity, relation, and responsibility, not fear and security, the law no longer divides and determines, but unites and generates. The law for Plato and Aristotle perpetuates violence, in the interest of the powerful, so that what little good the state has may be preserved; the law of the Hebraic God opens itself to violence, bearing the burden of debt, so that its adherents in turn need not be ruled by fear, but welcome the other into a meaningful union of commitment and compassion. This is the “stroke of genius of Christianity—God’s sacrifice of himself for the guilt of human beings, God paying himself back with himself.”⁹⁴ The cycle of bloodshed is ended; the wheel of history is broken. In stepping beyond the ontological commitments of the Socratic world-view, in digging to the roots of the Judaeo-Christian tradition, Nietzsche presents his readers with a different form of law, and through it, a different form of living. The law is no longer a law of death, a law of power and violence, but a law of life.

Works Cited

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Bates, Jr., Clifford Angell. “The Centrality of Politeia for Aristotle’s Politics: Aristotle’s Continuing Significance for Social and Political Science.” Social Science Information 53, no. 1 (2014): 139-159.

Congleton, Ann. “Two Kinds of Lawlessness.” Political Theory 2, no. 4 (1974): 432-446.

Diduch, Paul J. “Reason and the Rhetoric of Legal Obligation in Plato’s Crito.” Polis 31, no. 1 (2014): 1-27.

Gadamer, Hans-Georg. Truth and Method, translation revised by Joel Weinsheimer and Donald G. Marshall. London, UK: Bloomsbury Academic, 2013.

Garver, Eugene. “Plato’s Crito on the Nature of Persuasion and Obedience.” Polis 29, no. 1 (2012): 1-20.

Nietzsche, Friedrich. Beyond Good and Evil. In The Broadview Anthology of Social and Political Thought: Volume One: From Plato to Nietzsche, edited by Andrew Bailey, et al., 1063-1075. Toronto, ON: Broadview Press, 2008.

________. On the Genealogy of Morals. In The Broadview Anthology of Social and Political Thought: Volume One: From Plato to Nietzsche, edited by Andrew Bailey, et al., 1075-1095. Toronto, ON: Broadview Press, 2008.

Plato. Apology. In The Broadview Anthology of Social and Political Thought: Volume One: From Plato to Nietzsche, edited by Andrew Bailey, et al., 17-29. Toronto, ON: Broadview Press, 2008.

________. Crito. In The Broadview Anthology of Social and Political Thought: Volume One: From Plato to Nietzsche, edited by Andrew Bailey, et al., 29-35. Toronto, ON: Broadview Press, 2008.

Raphael. The School of Athens, c. 1511. https://upload.wikimedia.org/wikipedia/commons/c/c3/Raphael_School_of_Athens.jpg (accessed February 2, 2017).

Steadman, Geoffrey D. “The Unity of Plato’s Crito.” The Classical Journal 101, no. 4 (2006): 361-382.

Notes