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Table of Contents
- PHILOSOPHY OF LAW AND ECONOMICS
- READINGS
- Order and conflict
- The Lawful and the Legal
- Law and society
- Natural law and human action
- Trade and the division of labour
- 'Ethics' and 'economics'
- FURTHER READINGS
- DEMOCRACY
- Plato, The Republic Book VIII
- Aristotle on democracy
- Bastiat on the right to vote
- JUSTICE
- Aristotle on Justice
- Plato on justice
Order and conflict
The problem at the centre of political and social philosophy can be stated in a few words: how is it possible, that many people, all of them with their needs and desires, their opinions about what is or should be the case, about what is good or useful or beautiful, right or wrong, can live and work together? In short: why is there order and peace, and not just chaos and war? Very few people would wish to deny, that in terms of human welfare and well-being the advantages of peace and order are overwhelming. On the other hand, these advantages are not so overwhelming and not so evenly distributed as to make war and conflict impossible. There is no guarantee that all warlike actions are at all times and for everybody less advantageous than any peaceful action. This being so, there is no a priori reason for anyone to suppose that at least some others are not plotting against him, or that it would not be beneficial for him to treat at least some others as enemies. But this is to say, that almost everybody is a potential enemy for almost everybody: war is a virtually universal condition.
Many thinkers (the pessimists) have concluded, that universal war is far more likely, because in war, in its extreme form, "it is each man for himself": war does not seem to make many demands in terms of social skills-in this sense it seems to be the original or primitive condition, "the natural condition of mankind" (Thomas Hobbes, 1588-1679). Against this, other thinkers (the optimists) have pointed out that a person comes into the world as a helpless child and can hardly be expected to reach adolescence or adulthood if "each man for himself" were the only rule he should ever learn. The optimists believe that peace is the natural condition. Consequently, the first see peace as what should be explained, the others see war as the deviation from the normal or natural state of affairs.
The pessimists no less than the optimists regard peace and order as "good" and "beneficial", and war, conflict and chaos as "bad" and "dangerous". However, because the pessimists see war as a universal and natural condition, they can only think of peace as a local and artificial phenomenon. Peace has to be made. They tend to be political particularists, intent on creating well-guarded islands of peace in what they regard as a sea of war. For them, civilisation originates behind the walls of the citadel, where the insiders find protection against the outsiders, and a common power is supposed to protect each citizen against every other. The pessimists place their hope in well-designed political units-fortified cities, in ancient times; states, in modern times. Thus, their primary concern is with the organisation of such political units-the needs of the political organisation are paramount, all other concerns are of secondary importance. This must be so, because there is no order, no law outside the political organisation, at least not as far as human affairs are concerned-war is not order, but disorder. Law or order must be created and imposed by the political organisation. This is the essence of the political views of the pessimists: law is the product of the state; consequently, justice-i.e. respect for law-is first of all respect for political authority. Moreover, since law is to be imposed by political authority, that authority should be powerful enough to do so. The balance of power should always tilt towards the side of the authorities.
A further implication of the pessimistic attitude is, that ordinary people are not to be trusted. Natural man is basically a dangerous creature that must at least be strictly controlled, and preferably reformed or even replaced with a new type of human being-a New Man, with a different nature that makes him fit for life in the artificial world of political organisation. In other words, natural man should be made into a citizen, a creature that lives by the laws of the political organisation, rather than by the laws of nature. This immediately raises the question, who should be in charge of this process of controlling, reforming or changing human nature? That charge can obviously not be entrusted to ordinary people, so it must be entrusted to extraordinary people, unless there is supposed to be some super-human agency-which some call God, and others Evolution-that can be trusted to do the trick.
The optimists, on the other hand, see peace as the natural condition of mankind, and war as the local or temporary breakdown of normal relations-i.e. as violations of the natural order or the natural law. Their problem is not to make peace, but to preserve it. Thus, the optimists accept that there is a natural law, and that justice is first and foremost respect for natural law. The implication is, that every human endeavour, whether individual or collective, organised or not, is subject to the same standard of justice, which is natural law-and this holds in particular for political organisations, even those who are explicitly set up to keep peace. On this view, then, peace-keeping itself is not a valid excuse for interfering with normal intercourse; it should be conducted with respect for the natural order of human affairs. Politics is not the source of law, but a means of securing it. It is not the art of ruling, but of fostering respect for natural law. Because natural law is inherent in the human condition, it is the same everywhere and independent of the particular mores, conventions, and cultures that may have developed in various places. Thus, justice, as the respect for natural law, is the same everywhere and for all human beings. As for the pessimists, the city is the heart of civilisation. However, the city is not, for the optimists, the fortified citadel, the walls of which serve to separate the citizens, i.e. those who are under the control of the city's rulers, from the non-citizens, who are not under their control. Rather, it is the open city, which anybody can enter and leave at will, to meet and trade with residents and non-residents alike. It is basically a market place, a centre of commerce, rather than a centre of rule.
Texts
The locus classicus of the pessimist's point of view is Hobbes' description of what he called 'the natural condition of mankind' as a condition of a universal war of all against all. It is to be found in chapter 13 of his still widely read and discussed Leviathan (1651). Thomas Hobbes (1588-1679) completed this book shortly after the English Civil War had ended with the execution of the Catholic Stuart King, Charles I.
On the natural condition of mankind as concerning their felicity and misery
NATURE hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination or by confederacy with others that are in the same danger with himself.
And as to the faculties of the mind, setting aside the arts grounded upon words, and especially that skill of proceeding upon general and infallible rules, called science, which very few have and but in few things, as being not a native faculty born with us, nor attained, as prudence, while we look after somewhat else, I find yet a greater equality amongst men than that of strength. For prudence is but experience, which equal time equally bestows on all men in those things they equally apply themselves unto. That which may perhaps make such equality incredible is but a vain conceit of ones own wisdom, which almost all men think they have in a greater degree than the vulgar; that is, than all men but themselves, and a few others, whom by fame, or for concurring with themselves, they approve. For such is the nature of men that howsoever they may acknowledge many others to be more witty, or more eloquent or more learned, yet they will hardly believe there be many so wise as themselves; for they see their own wit at hand, and other mens at a distance. But this proveth rather that men are in that point equal, than unequal. For there is not ordinarily a greater sign of the equal distribution of anything than that every man is contented with his share.
From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end (which is principally their own conservation, and sometimes their delectation only) endeavour to destroy or subdue one another. And from hence it comes to pass that where an invader hath no more to fear than another mans single power, if one plant, sow, build, or possess a convenient seat, others may probably be expected to come prepared with forces united to dispossess and deprive him, not only of the fruit of his labour, but also of his life or liberty. And the invader again is in the like danger of another.
And from this diffidence of one another, there is no way for any man to secure himself so reasonable as anticipation; that is, by force, or wiles, to master the persons of all men he can so long till he see no other power great enough to endanger him: and this is no more than his own conservation requireth, and is generally allowed. Also, because there be some that, taking pleasure in contemplating their own power in the acts of conquest, which they pursue farther than their security requires, if others, that otherwise would be glad to be at ease within modest bounds, should not by invasion increase their power, they would not be able, long time, by standing only on their defence, to subsist. And by consequence, such augmentation of dominion over men being necessary to a mans conservation, it ought to be allowed him.
Again, men have no pleasure (but on the contrary a great deal of grief) in keeping company where there is no power able to overawe them all. For every man looketh that his companion should value him at the same rate he sets upon himself, and upon all signs of contempt or undervaluing naturally endeavours, as far as he dares (which amongst them that have no common power to keep them in quiet is far enough to make them destroy each other), to extort a greater value from his contemners, by damage; and from others, by the example.
So that in the nature of man, we find three principal causes of quarrel. First, competition; secondly, diffidence; thirdly, glory.
The first maketh men invade for gain; the second, for safety; and the third, for reputation. The first use violence, to make themselves masters of other mens persons, wives, children, and cattle; the second, to defend them; the third, for trifles, as a word, a smile, a different opinion, and any other sign of undervalue, either direct in their persons or by reflection in their kindred, their friends, their nation, their profession, or their name.
Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is peace.
Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.
It may seem strange to some man that has not well weighed these things that Nature should thus dissociate and render men apt to invade and destroy one another: and he may therefore, not trusting to this inference, made from the passions, desire perhaps to have the same confirmed by experience. Let him therefore consider with himself: when taking a journey, he arms himself and seeks to go well accompanied; when going to sleep, he locks his doors; when even in his house he locks his chests; and this when he knows there be laws and public officers, armed, to revenge all injuries shall be done him; what opinion he has of his fellow subjects, when he rides armed; of his fellow citizens, when he locks his doors; and of his children, and servants, when he locks his chests. Does he not there as much accuse mankind by his actions as I do by my words? But neither of us accuse mans nature in it. The desires, and other passions of man, are in themselves no sin. No more are the actions that proceed from those passions till they know a law that forbids them; which till laws be made they cannot know, nor can any law be made till they have agreed upon the person that shall make it.
It may peradventure be thought there was never such a time nor condition of war as this; and I believe it was never generally so, over all the world: but there are many places where they live so now. For the savage people in many places of America, except the government of small families, the concord whereof dependeth on natural lust, have no government at all, and live at this day in that brutish manner, as I said before. Howsoever, it may be perceived what manner of life there would be, where there were no common power to fear, by the manner of life which men that have formerly lived under a peaceful government use to degenerate into a civil war.
But though there had never been any time wherein particular men were in a condition of war one against another, yet in all times kings and persons of sovereign authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators, having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbours, which is a posture of war. But because they uphold thereby the industry of their subjects, there does not follow from it that misery which accompanies the liberty of particular men.
To this war of every man against every man, this also is consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where there is no common power, there is no law; where no law, no injustice. Force and fraud are in war the two cardinal virtues. Justice and injustice are none of the faculties neither of the body nor mind. If they were, they might be in a man that were alone in the world, as well as his senses and passions. They are qualities that relate to men in society, not in solitude. It is consequent also to the same condition that there be no propriety, no dominion, no mine and thine distinct; but only that to be every mans that he can get, and for so long as he can keep it. And thus much for the ill condition which man by mere nature is actually placed in;...
In chapter 14, Hobbes goes on to translate his description of the natural condition of mankind into a theory of natural rights.
Of the first and second natural laws, and of contracts
THE right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto.
By liberty is understood, according to the proper signification of the word, the absence of external impediments; which impediments may oft take away part of a mans power to do what he would, but cannot hinder him from using the power left him according as his judgement and reason shall dictate to him.
A law of nature, lex naturalis, is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved. For though they that speak of this subject use to confound jus and lex, right and law, yet they ought to be distinguished, because right consisteth in liberty to do, or to forbear; whereas law determineth and bindeth to one of them: so that law and right differ as much as obligation and liberty, which in one and the same matter are inconsistent.
And because the condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies; it followeth that in such a condition every man has a right to every thing, even to one anothers body. And therefore, as long as this natural right of every man to every thing endureth, there can be no security to any man, how strong or wise soever he be, of living out the time which nature ordinarily alloweth men to live. And consequently it is a precept, or general rule of reason: that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war. The first branch of which rule containeth the first and fundamental law of nature, which is: to seek peace and follow it. The second, the sum of the right of nature, which is: by all means we can to defend ourselves.
From this fundamental law of nature, by which men are commanded to endeavour peace, is derived this second law: that a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men as he would allow other men against himself. For as long as every man holdeth this right, of doing anything he liketh; so long are all men in the condition of war. But if other men will not lay down their right, as well as he, then there is no reason for anyone to divest himself of his: for that were to expose himself to prey, which no man is bound to, rather than to dispose himself to peace.
This is that law of the gospel: Whatsoever you require that others should do to you, that do ye to them. And that law of all men, quod tibi fieri non vis, alteri ne feceris.-That there is a natural order of human affairs, and therefore also a natural principle of justice-the fundamental thesis of the optimists-is expounded in the second chapter of John Locke's famous Second Treatise of Government (1690). Locke (1632-1704) wrote this book after the restoration of the Stuart kings in 1660, while he was in exile in Holland. It was finished by 1688, the year of the Glorious Revolution, when the last Stuart king, James II, had to flea, and the new king, William III, formerly the Stadtholder of Holland, had to accept a Bill of Rights (1689). In this Treatise, Locke formulated his theory of natural human rights and his proposals for limiting the powers of the state by means of the institutionalisation of the principles of legality, representation and the separation of powers. These provided much of the inspiration for the programmes of constitutional reform that agitated political thought in the eighteenth century
Of Political Power
3. Political power, then, I take to be a right of making laws, with penalties of death, and consequently all less penalties for the regulating and preserving of property, and of employing the force of the community in the execution of such laws, and in the defence of the commonwealth from foreign injury, and all this only for the public good.
Of the State of Nature
4. To understand political power aright, and derive it from its original, we must consider what estate all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.
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6. But though this be a state of liberty, yet it is not a state of licence; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions; for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign Master, sent into the world by His order and about His business; they are His property, whose workmanship they are made to last during His, not one another's pleasure. And, being furnished with like faculties, sharing all in one community of Nature, there cannot be supposed any such subordination among us that may authorise us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for ours. Every one as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind, and not unless it be to do justice on an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.
7. And that all men may be restrained from invading others' rights, and from doing hurt to one another, and the law of Nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of Nature is in that state put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree as may hinder its violation. For the law of Nature would, as all other laws that concern men in this world, be in vain if there were nobody that in the state of Nature had a power to execute that law, and thereby preserve the innocent and restrain offenders; and if any one in the state of Nature may punish another for any evil he has done, every one may do so. For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.
8. And thus, in the state of Nature, one man comes by a power over another, but yet no absolute or arbitrary power to use a criminal, when he has got him in his hands, according to the passionate heats or boundless extravagancy of his own will, but only to retribute to him so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint. For these two are the only reasons why one man may lawfully do harm to another, which is that we call punishment. In transgressing the law of Nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men for their mutual security, and so he becomes dangerous to mankind; the tie which is to secure them from injury and violence being slighted and broken by him, which being a trespass against the whole species, and the peace and safety of it, provided for by the law of Nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and, by his example, others from doing the like mischief. And in this case, and upon this ground, every man hath a right to punish the offender, and be executioner of the law of Nature.
9. I doubt not but this will seem a very strange doctrine to some men; but before they condemn it, I desire them to resolve me by what right any prince or state can put to death or punish an alien for any crime he commits in their country? It is certain their laws, by virtue of any sanction they receive from the promulgated will of the legislature, reach not a stranger. They speak not to him, nor, if they did, is he bound to hearken to them. The legislative authority by which they are in force over the subjects of that commonwealth hath no power over him. Those who have the supreme power of making laws in England, France, or Holland are, to an Indian, but like the rest of the world- men without authority. And therefore, if by the law of Nature every man hath not a power to punish offences against it, as he soberly judges the case to require, I see not how the magistrates of any community can punish an alien of another country, since, in reference to him, they can have no more power than what every man naturally may have over another.
10. Besides the crime which consists in violating the laws, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature and to be a noxious creature, there is commonly injury done, and some person or other, some other man, receives damage by his transgression; in which case, he who hath received any damage has (besides the right of punishment common to him, with other men) a particular right to seek reparation from him that hath done it. And any other person who finds it just may also join with him that is injured, and assist him in recovering from the offender so much as may make satisfaction for the harm he hath suffered.
11. From these two distinct rights (the one of punishing the crime, for restraint and preventing the like offence, which right of punishing is in everybody, the other of taking reparation, which belongs only to the injured party) comes it to pass that the magistrate, who by being magistrate hath the common right of punishing put into his hands, can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man for the damage he has received. That he who hath suffered the damage has a right to demand in his own name, and he alone can remit. The damnified person has this power of appropriating to himself the goods or service of the offender by right of self-preservation, as every man has a power to punish the crime to prevent its being committed again, by the right he has of preserving all mankind, and doing all reasonable things he can in order to that end. And thus it is that every man in the state of Nature has a power to kill a murderer, both to deter others from doing the like injury (which no reparation can compensate) by the example of the punishment that attends it from everybody, and also to secure men from the attempts of a criminal who, having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts with whom men can have no society nor security. And upon this is grounded that great law of nature, "Whoso sheddeth man's blood, by man shall his blood be shed." And Cain was so fully convinced that every one had a right to destroy such a criminal, that, after the murder of his brother, he cries out, "Every one that findeth me shall slay me," so plain was it writ in the hearts of all mankind.
12. By the same reason may a man in the state of Nature punish the lesser breaches of that law, it will, perhaps, be demanded, with death? I answer: Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. Every offence that can be committed in the state of Nature may, in the state of Nature, be also punished equally, and as far forth, as it may, in a commonwealth. For though it would be beside my present purpose to enter here into the particulars of the law of Nature, or its measures of punishment, yet it is certain there is such a law, and that too as intelligible and plain to a rational creature and a studier of that law as the positive laws of commonwealths, nay, possibly plainer; as much as reason is easier to be understood than the fancies and intricate contrivances of men, following contrary and hidden interests put into words; for truly so are a great part of the municipal laws of countries, which are only so far right as they are founded on the law of Nature, by which they are to be regulated and interpreted.
13. To this strange doctrine- viz., That in the state of Nature every one has the executive power of the law of Nature- I doubt not but it will be objected that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends; and, on the other side, ill-nature, passion, and revenge will carry them too far in punishing others, and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant that civil government is the proper remedy for the inconveniences of the state of Nature, which must certainly be great where men may be judges in their own case, since it is easy to be imagined that he who was so unjust as to do his brother an injury will scarce be so just as to condemn himself for it. But I shall desire those who make this objection to remember that absolute monarchs are but men; and if government is to be the remedy of those evils which necessarily follow from men being judges in their own cases, and the state of Nature is therefore not to be endured, I desire to know what kind of government that is, and how much better it is than the state of Nature, where one man commanding a multitude has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases without the least question or control of those who execute his pleasure? and in whatsoever he doth, whether led by reason, mistake, or passion, must be submitted to? which men in the state of Nature are not bound to do one to another. And if he that judges, judges amiss in his own or any other case, he is answerable for it to the rest of mankind.
14. It is often asked as a mighty objection, where are, or ever were, there any men in such a state of Nature? To which it may suffice as an answer at present, that since all princes and rulers of "independent" governments all through the world are in a state of Nature, it is plain the world never was, nor never will be, without numbers of men in that state. I have named all governors of "independent" communities, whether they are, or are not, in league with others; for it is not every compact that puts an end to the state of Nature between men, but only this one of agreeing together mutually to enter into one community, and make one body politic; other promises and compacts men may make one with another, and yet still be in the state of Nature. The promises and bargains for truck, etc., between the two men in Soldania, or between a Swiss and an Indian, in the woods of America, are binding to them, though they are perfectly in a state of Nature in reference to one another for truth, and keeping of faith belongs to men as men, and not as members of society.
In the next chapter, Locke explicitly addresses the Hobbesian vision of the natural condition of mankind as a universal war. Against Hobbes' claim, that in war there is no distinction between justice and injustice, Locke maintains that even in war the distinction between aggression and defence can be made-i.e. the distinction between those who are guilty and those who are innocent of warlike actions.
Of the State of War
16. The state of war is a state of enmity and destruction; and therefore declaring by word or action, not a passionate and hasty, but sedate, settled design upon another man's life puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just I should have a right to destroy that which threatens me with destruction; for by the fundamental law of Nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred, and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion, because they are not under the ties of the common law of reason, have no other rule but that of force and violence, and so may be treated as a beast of prey, those dangerous and noxious creatures that will be sure to destroy him whenever he falls into their power.
17. And hence it is that he who attempts to get another man into his absolute power does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life. For I have reason to conclude that he who would get me into his power without my consent would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power unless it be to compel me by force to that which is against the right of my freedom- i.e. make me a slave. To be free from such force is the only security of my preservation, and reason bids me look on him as an enemy to my preservation who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me thereby puts himself into a state of war with me. He that in the state of Nature would take away the freedom that belongs to any one in that state must necessarily be supposed to have a design to take away everything else, that freedom being the foundation of all the rest; as he that in the state of society would take away the freedom belonging to those of that society or commonwealth must be supposed to design to take away from them everything else, and so be looked on as in a state of war.
18. This makes it lawful for a man to kill a thief who has not in the least hurt him, nor declared any design upon his life, any farther than by the use of force, so to get him in his power as to take away his money, or what he pleases, from him; because using force, where he has no right to get me into his power, let his pretence be what it will, I have no reason to suppose that he who would take away my liberty would not, when he had me in his power, take away everything else.
And, therefore, it is lawful for me to treat him as one who has put himself into a state of war with me- i.e., kill him if I can; for to that hazard does he justly expose himself whoever introduces a state of war, and is aggressor in it.
19. And here we have the plain difference between the state of Nature and the state of war, which however some men have confounded, are as far distant as a state of peace, goodwill, mutual assistance, and preservation; and a state of enmity, malice, violence and mutual destruction are one from another. Men living together according to reason without a common superior on earth, with authority to judge between them, is properly the state of Nature. But force, or a declared design of force upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war; and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow-subject. Thus, a thief whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat, because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which if lost is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority puts all men in a state of Nature; force without right upon a man's person makes a state of war both where there is, and is not, a common judge.
20. But when the actual force is over, the state of war ceases between those that are in society and are equally on both sides subject to the judge; and, therefore, in such controversies, where the question is put, "Who shall be judge?" it cannot be meant who shall decide the controversy; every one knows what Jephtha here tells us, that "the Lord the Judge" shall judge. Where there is no judge on earth the appeal lies to God in Heaven. That question then cannot mean who shall judge, whether another hath put himself in a state of war with me, and whether I may, as Jephtha did, appeal to Heaven in it? Of that I myself can only judge in my own conscience, as I will answer it at the great day to the Supreme Judge of all men.The causes of conflict and war
One way to get a hold on our basic problem is to look into the conditions under which conflicts of the sort that threaten human society can occur. Taking human beings as they are, we can easily discover four conditions that appear to be individually necessary and collectively sufficient for explaining the possibility of conflict. Stated in the most general way, these are: plurality, diversity, scarcity, and free access to scarce resources. Together they correspond to the following description of the human condition: many people, each of them acting on his or her own judgement, interfere with one another because they have diverse and incompatible plans for the use of the same scarce resources.
- Plurality. This condition refers to the co-existence of many people, each of them capable, and often enough willing and desirous to act on his own initiative. Obviously, if the condition of plurality did not apply, there would be no possibility of interhuman or social conflict in any form. A man alone on an island might have many problems, but none of them would fit the category of political or social conflict. Plurality is a necessary condition for the possibility of social existence, but also of social breakdown.
- Diversity. This condition refers to the fact, that people often hold different opinions on what is or should be the case, the most appropriate response to some particular event, on what is good, right, useful, beautiful, and so on. The mere co-existence of many people could not generate social conflict, if they all agreed on the same answer to every question, on the same proposal for dealing with any particular problem. Diversity too is a necessary condition for social existence and social conflict.
Diversity operates on many levels, and is not always clearly visible. Consensus at one level may hide disagreement at another. It may happen that two people agree on a formal definition - e.g. on an abstract statement such as "Man is a rational animal". This does not necessarily mean that they have the same views on what sorts of characteristics a rational animal would have. And even if they agree on the kinds of characteristics they should be looking for, they may still disagree with respect to the question whether these characteristics are present in a particular case. They may have different views on how to establish the presence or absence of one of these characteristics, or different views on whether it is prudent to err on the side of strictness or laxity when applying criteria - e.g. do you want a strict application of the concept of a human being, at the risk of excluding some persons from your conception of humanity, or do you prefer a loose application, at the risk of including non-human things in your conception? On the other hand, people may disagree on a formal definition, while they are mostly in agreement on particular cases. The fact, that people disagree in their abstract "theoretical" opinions, does not necessarily mean that they cannot agree on concrete "practical" decisions.
- Scarcity. Conflict implies the chance of winning and the risk of losing. Thus, conflict implies that the parties to the conflict are not indifferent to all possible outcomes. If nothing mattered to any of them, we should be at a loss to explain where the energy comes from that sustains their conflictual behaviour. Conflict is driven by people's desires to profit if necessary at the expense of others, or by their desires to avoid losses that might result from the actions of others. The underlying cause of profit and loss is scarcity, the fact that there is no guarantee that everybody, or anybody, will be able to satisfy all of his needs and desires. If there were no scarcity, everyone could have everything he wanted, and nobody would suffer as a result of anybody's (another's or his own) attempts to get anything.
Scarcity afflicts even the individual alone on an island. If for no other reason, this is true because life is short, and our capacities for production and consumption are at all times limited. Man is a finite being. No matter how rich his natural environment, the islander would still have to make decisions about what to do first (thereby running the risk of never being able to do or have some of the things he is now postponing), and about how much effort or energy to invest in any particular project. He would have to do some things at the cost of not enjoying the benefits of other things; he would have to avoid some risks at the cost of exposing himself to other risks. This is the intra-personal aspect of scarcity, which defines scarcity as a personal (or psychological) problem of choice. The lonely islander may waste his life and/or his resources (his own physical or mental resources, such as health and sanity, or the resources that are available in his environment) by making the wrong choices.
The implications of intra-personal scarcity for human action are studied, for example, in the fields of ethics and economics. These are essentially "managerial" or "governmental" disciplines: their basic concern is to provide answers to questions such as 'What to do now?', 'How to go about securing this or that goal?', and similar questions relating to the management or government of scarce resources (including an individual's time and energy, his life).
- Free access or publicness. Let us imagine that each person lives in an isolated compartment of the universe. In this imagined world, there could be scarcity of the kind described above, but there could be no social conflict: no person could injure, maim or kill another, and no person could harm another by theft, robbery or fraud. In fact, there could not be social conflict if people were to live in a common world in which all the scarce resources that are relevant for one person-including his or her own physical body and its faculties-were completely irrelevant to all others. If the latter condition were to be fulfilled, no one would have any interest whatsoever in any other, his possessions and actions. Evidently, some degree of publicness of, or free access to, persons or their resources is an additional condition that must be fulfilled, if social conflict is to be possible. Of, course, if there were no scarcity of the intrapersonal sort, free access would not be a problem.
Figure 1
Free access involves scarcity, but exhibits other interpersonal aspects of scarcity than the intrapersonal aspects mentioned above. Where many people co-exist, and goods and services are accessible to many, scarcity implies that occasions may arise where one person's gain is another's loss. In such cases, a person's welfare and well-being, or his life itself, is at risk not only because he himself might make the wrong choices, but also because others might make choices that affect him in some harmful way. Moreover, when this happens, it is no proof that the other makes a "wrong choice". Given the conditions of plurality and diversity, we cannot simply assume that there is an objective basis for judging the rightness or wrongness of choices that is independent of the particular point of view of any of the parties involved in the interaction.
One cannot manage that over which one has no control. Publicly accessible goods are by definition not controlled by any one party. There is no such thing as the manager or the governor of publicly accessible resources. We cannot tackle the problem of inter-personal scarcity by placing ourselves mentally in the shoes of the manager or the governor of the resources in question, and then asking ourselves what would be the best thing to do. If we tried, we would merely indicate thereby, that we failed to understand the situation. The following analogy may help to clarify the point. If we found out that the two opponents in a game of chess, or all the players on a soccer-field, took directions from the same man (the same "manager" or "governor"), we should say that their game was "rigged", or that they were merely actors pretending to play. We readily understand that such a man (a movie director, or a crook) faces a different sort of situation than a player or coach in a real match. The one might wonder how to make all the players behave so as to make the pretended match have a desired quality (drama, comedy, beauty, a particular outcome); the other can only control his own part, not the entire real match itself. Playing chess against oneself, or writing a scenario for a simulation of a chess game, is not all like the real thing, because one can never fail to know "one opponent's thinking".
Figure 2
The implications of the interpersonal aspects of scarcity are studied by disciplines such as law, catallactics (what most people misleadingly call 'economics'), and politics (as the study of the processes affecting the distribution of the powers of making and implementing decisions in society). These disciplines are of an entirely different nature than ethics and economics, precisely because they cannot assume the position of a single controlling actor who is in position to make decisions about the most ethical or economic behaviour of "the whole system".
Plurality, diversity, scarcity and free access are individually necessary conditions for the possibility of conflict in human society. This means, that if any of these conditions is not present, there will be no conflict we are likely to recognise as relevant to social life. It follows, that none of these conditions is individually sufficient for an explanation of the possibility of social conflict. They are, however, collectively sufficient. Of course, an explanation of the possibility of conflict is not the same thing as the explanation of the occurrence of any particular conflict. The particular causes of particular conflicts are diverse, and it is for the historian and the social theorist to identify them. We shall not deal with their problems. We are concerned only with the claim, that social conflict is possible if, and only if, the four general conditions listed above are fulfilled.
The analytical frame-work described here can be presented diagrammatically as in the figure reproduced here. A and B represent two persons who have both access to the same scarce resource or means of action M; while each wants to use it for his own purpose (Pa and Pb, respectively).
Conditions of order and peace
Accepting the preceding analysis of the four causes op the possibility of conflict, we can see, that there are four pure strategies for eliminating or reducing the risk of social conflict. Each of these pure strategies concentrates on eliminating or reducing one of the four causes. Thus we have: 1) unity, or the elimination of plurality, 2) consensus, or the elimination of diversity, 3) abundance, or the elimination of scarcity, and 4) natural law, or property and contract, which eliminates free access, without eliminating either plurality or diversity or scarcity.
We can represent these pure strategies as transformations of the "conflict"-diagram:
Unity can then be depicted by placing B under A, because A is supposed to make the decisions for B; consensus by identifying Pa and Pb, because action is supposed to be guided by a common interest; abundance by eliminating M from the picture , because under the condition of abundance the scarcity of means is no longer a problem; and property by splitting M into two halves, Ma and Mb, so that A has exclusive access to Ma, and B to Mb. The figures that result from these operations depict the complete set of "pure strategies" in political philosophy (within the frame-work adopted here).
We should, of course, expect that many theories will be combinations of these pure strategies in various mixes. Theoretically, there are sixteen different combinations to consider, but we shall restrict our preliminary comments to the pure strategies.
Unity
The most drastic strategy for achieving unity is one that seeks to physically eliminate all other persons. It eliminates the possibility of social conflict at the cost of social existence itself. Less drastic is the attempt to force everybody else to submit to the will of one, so that they all end up co-operating in a single collective action, or, at least, acting according to a single coherent plan. This is a powerful political idea that has had, and perhaps still has, a great appeal for many people. It is often expressed as the idea, that in society there should be one leader willing and able to make decisions that are binding for all, or that society should act "as one man".
Unity is traditionally called 'monarchy'-which signifies that every action springs from one source. However, the idea of unity does not imply, that everybody takes orders directly from some king or leader. First, even a king will prefer to issue laws (leges), which are general rules or standing orders, to large classes and groups of his subjects, rather than specific prescriptions to individual persons on what they should do next, and how they should go about it. Second, as we can read in the excerpt from Hobbes' Leviathan reproduced below, unity may well be achieved in a parliamentary system, provided that the ruling assembly uses a decision procedure (say, a rule of voting) that allows the reduction of the many opinions and preferences of its members to a single "collective decision". In that case, the requirement of unity is supposed to be met by the fact, that everybody obeys a single fictional will-the will of parliament. Thus, many people who call themselves 'democrats' are monarchists in this sense. Their monarch is either an elected autocrat or supreme leader or an elected body of individuals that produces a single decision by a mechanical or arithmetical procedure (counting votes), no matter how diverse the opinions of the individual members may be. Other types of monarchy do not involve election of the ruling authority, whether this be an individual or an assembly, but its natural emergence or eminence: the autocrat is supposed to be an outstanding person, of exceptional wisdom, goodness or power, or the ruling assembly is supposed to be composed of such persons. Alternatively, the accession to the position of ruler may be determined by a law of hereditary succession: the ruling authority is passed on within the same family, or within the same class of ruling families.
As a political ideal unity stands for the reduction of the social to the individual: society becomes an individual, and that individual is personified in the ruler or ruling authority. Consequently, the solution to the problems of social existence depends on the ability of the ruler to impose his will, or on the willingness of everybody to surrender his will to the ruler. Only this will ensure, that the whole of society acts as one person. But then all social and political questions become questions of government and management. The arts of managing society - that is to say: economics and ethics, as defined earlier - become the supreme skills which the rulers should master. However, the rulers first task is to rule, i.e. to make and impose their decisions-it is not to be mere guardians of the moral standards of the community they are in charge of. The latter view is usually associated with the consensus view, which we shall discuss in a moment.
Prominent and influential advocates of this type of solution in the history of political thought are Plato (Greece, 427-347, 4th century BC.) and Hobbes (England, 17th century). In many respects very different thinkers, with radically opposed views on a number of fundamental philosophical issues, they nevertheless came up with very similar arguments concerning the problems of war and peace. Both postulated a natural condition of mankind with a spontaneous tendency towards increasing misery and mutual destruction. Both saw greed, the lust for comfort and wealth and power, and insecurity, but above all equality, as the causes of an all-engulfing war in which each one turns out to be the enemy of everyone else. As longs as each person makes his own decisions as to do what is best for him, men will tend to destroy one another and themselves. Consequently, reason cannot fail to conclude that peace requires that all persons act with one will, or that all obey a single authority. Rational men and women will therefore agree to submit to a single ruler and to live by his decisions. Thus, monarchical rule can be justified as a command of reason (Plato) or as instituted by an agreement among rational persons (Hobbes).
Both Plato and Hobbes argued for strong authoritarian rule, with a highly centralised monopoly of the means of force and violence. Plato emphasised that such a monopolisation of power would be necessary, but far from sufficient. Power unwisely used would tend to exacerbate the problems. Therefore only supreme wisdom could justify the rule of a single ruler over others. Hobbes, on the other hand, saw the ruler's wisdom as no more than a fortunate extra. The essential thing, for him, is the concentration of power itself. No matter how cruel and foolish the ruler might turn out to be, the mere fact that people stop acting on their own judgement brings sufficient benefits of peace to justify his position. As Hobbes tells the story of how peace can be installed and maintained, it does not matter whether every person keeps quiet out of fear for the same strong man, or whether every person submits to the ruler because he feels he has less to fear from his rule than from his fellows.
While Hobbes had a lot of advice to give to anyone seeking to rule over others, he kept mostly silent about how one man or organised body of men could effectively monopolise the means of power without being drawn into interminable negotiations and deals with whoever might be in command of a potentially rival power-base. For all his advocacy of absolute monarchy as the best, indeed the only, solution to the problems of war, Hobbes tended to assume away the dependency of a ruler on the support of others. He never faced the obvious problem how political power could be absolute, when it is all too clear that, except for the very weak, people are more likely to use their power to make advantageous deals than to surrender it unconditionally in return for unenforceable 'protection'.
Plato was much more aware of the difficulty of establishing absolute monarchy. The problem, as he saw it, was that philosophy-his philosophy, of course-had the answers to the problems of social life, but was powerless to impose them. So, how could philosophy come to power without compromising itself? A ruler who has to buy support is bound to be, in Plato's view, a weak ruler, incapable of delivering a solution to the problem of war, and therefore incapable of justifying his rule. Such a ruler would be forever contested. For this reason, Plato, as a political thinker, turned most of his attention to the question of how to construct an unconditionally loyal power-base for the ruler. In the process, he developed virtually the whole set of political concepts that define political orthodoxy, even to this day.
The basic dichotomy upon which most political thought in the West is built is the dichotomy between [natural] man, the "private individual" of modern political rhetoric, and the [artificial, i.e. publicly educated and trained] citizen. The former's life is supposedly governed by the pursuit of self-interest, and is bound to issue in self-destruction (for men, left to themselves, are beyond redemption). The citizen, on the other hand, is governed by the common or general interest, and lives a life of unselfish dedication to the public good. But no one is born a citizen, and therefore the supreme task of political leadership is to make citizens out of the raw human material. If war is natural, peace is artifice, the work of knowledge and good judgement. That is why, according to Plato, political power is impotent as a source of peace, if not informed by philosophy. Philosophers must be kings, and kings philosophers: wisdom must be enthroned and empowered or politics will be no more than organised crime.
Plato did not believe that most men are educable in the public virtues. The state is a restricted company, an organisation of rule, comprising next to the supreme ruler and his loyal and committed military and administrative aides (the "guardians of society") an army of "helpers" (who man the army, the police force and all the other branches of government). This three-layered structure of rule sits on top of the ordinary people. The latter are subject to, but not in any meaningful sense part of, the state. Most of the time they can be left to themselves, to live their natural animal lives as natural animal men, because, when all the means of violence have been concentrated in the hands of the state, they are virtually harmless. The guardians of society and their helpers, on the other hand, because they do possess the means of violence, must be confined to a life devoid of selfish human interests and passions. State and society must be radically separated, or the vitality of the natural man will swamp the weak force of inculcated ideology that links the members of the political class (the true citizens) to their supreme ruler.
Plato's political theory was based on a keen awareness of the social basis of political power. Power is essentially democratic. The lonely philosopher, no matter how wise, is impotent. He must have a large following to be effective in changing the ways of the world. But he will end compromising himself if, in the endeavour to acquire a following, he stoops to make himself a follower of the leading passions of men. Therefore, political power must construct its own base of support and literally make its own men.
A common theme in Plato and Hobbes is that the ruler or monarch is not bound by law, neither traditional customary law, nor natural law, nor the laws enacted by himself or his predecessors. In other words, as far as his relations with his subjects are concerned, he is above the law because he is the sole source of the laws-the supreme and sovereign legislator as well as the only authoritative interpreter of the commands of reason, nature or God. It is this feature that completes the idea of unity, since without it any person would feel free to invoke the authority of reason, nature or God and so to substitute his own insights and convictions for those of the ruler. This would defeat the very purpose of political rule, which, as Hobbes ceaselessly stressed, is to end the condition in which people act on their own judgement. For Plato the legislative omnipotence of the philosopher-king was an even more obvious requirement of political order: to allow laws to stand in the way of wisdom, is to enthrone folly.
We should note, that the ruling monarch is not at all like the traditional king. The word 'king' is related to 'kin' (family, in the sense of people who know themselves to have a common ancestor), and to the Dutch 'kind' (child, in the sense of a descendant) and 'kunne' (originally the same as the English 'kin'). The king is, in this original sense, the present head of the family, and as such the living representative of the family and all its ancestors, right up to the beginning of its history. It is only because the present family has a history, a known genealogy that stretches back to the beginning of time, that its present head can appear as a king. Thus, the idea of kingship connotes continuity and tradition, and the proper role of the king is to preserve the ways of the family, i.e. of his house. His role is definitely not to make laws, or to rule members of other related families (with a less impressive genealogy), but to be an authority on tradition and custom. The king is primarily a judge, and not, except in his own house, or under special circumstances (war, natural disaster), a commander or ruler. Against the background of this notion of kingship, the idea of adding an unrestricted legislative function to the powers of the king is in fact radical and revolutionary in the extreme. It could be developed into a private law theory according to which everything and everyone within the reach of the ruler's power becomes his private property, with the ruler as the head of a large household-rex maior singulis, maior universis: the ruler is above each and above all-or it could be developed into a public law theory according to which the ruler merely personifies and represents the community constituted by his rule-rex maior singulis, minor universis: the ruler is above each subject taken individually, but not above his subjects taken collectively. However, the crucial point is, that the ruler, whether he is seen as a ruler in his own right, or the "representative" of the collective or community of his subjects, is the source or maker of the laws-even if the validity of his laws derives from his status as representative of the people, or from some divine election, or what not. Thus, what pleases the ruler, has the force of law-quod principi placet, legis habet vigorem. This is a far stronger claim than that expressed by the maxim "Rex legibus solutus"-the ruler is not bound by law-which merely indicates privilege and immunity, but not the authority to make and enforce his own laws.
Figure 4
The legislative authority was associated with sovereignty or majesty-i.e. an absolute right to rule over all that is part of one's domain, things, animals and men-by writers such as Bodin (France, 16th century) and Hobbes, who used it to conceptualise the modern idea of the state. The modern state is not generally thought of as the property of the rulers; rather the rulers are said to hold office in the state, which means that they are duty-bound to preserve the state. This construction allows for a distinction between what a ruler does for "private reasons" and what he does for "reasons of state". With this distinction the stage is set for modern constitutional theory. It left room for the claims of other representative "organs of the community" to check the king's actions in "public affairs", and eventually to take over his role as supreme legislator, supreme judge, supreme executive officer, and supreme commander of the armed forces. However, the state retained the attribute of legislative sovereignty. Despite the introduction of the notion of fundamental rights (which come from a very different tradition of political thought), modern constitutions of unitary states still hold to the view that the political authorities are entitled to make and enforce the laws they deem necessary.
Texts
A particularly strong statement of unity as a political idea is to be found in Plato's last work, The Laws. The quote is from book V:
The first and highest form of the state
"The first and highest form of the state and of the government and of the law is that in which there prevails most widely the ancient saying, that "Friends have all things in common." Whether there is anywhere now, or will ever be, this communion of women and children and of property, in which the private and individual is altogether banished from life, and things which are by nature private, such as eyes and ears and hands, have become common, and in some way see and hear and act in common, and all men express praise and blame and feel joy and sorrow on the same occasions, and whatever laws there are unite the city to the utmost-whether all this is possible or not, I say that no man, acting upon any other principle, will ever constitute a state which will be truer or better or more exalted in virtue. Whether such a state is governed by Gods or sons of Gods, one, or more than one, happy are the men who, living after this manner, dwell there; and therefore to this we are to look for the pattern of the state, and to cling to this, and to seek with all our might for one which is like this."
Hobbes expressed the need for unity in less exalted, but no less clear terms, in chapter XVII of Leviathan:
Of the causes, generation, and definition of a commonwealth
And be there never so great a multitude; yet if their actions be directed according to their particular judgements, and particular appetites, they can expect thereby no defence, nor protection, neither against a common enemy, nor against the injuries of one another. For being distracted in opinions concerning the best use and application of their strength, they do not help, but hinder one another, and reduce their strength by mutual opposition to nothing: whereby they are easily, not only subdued by a very few that agree together, but also, when there is no common enemy, they make war upon each other for their particular interests. For if we could suppose a great multitude of men to consent in the observation of justice, and other laws of nature, without a common power to keep them all in awe, we might as well suppose all mankind to do the same; and then there neither would be, nor need to be, any civil government or Commonwealth at all, because there would be peace without subjection.
Nor is it enough for the security, which men desire should last all the time of their life, that they be governed and directed by one judgement for a limited time; as in one battle, or one war. For though they obtain a victory by their unanimous endeavour against a foreign enemy, yet afterwards, when either they have no common enemy, or he that by one part is held for an enemy is by another part held for a friend, they must needs by the difference of their interests dissolve, and fall again into a war amongst themselves.
...
The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly, is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will: which is as much as to say, to appoint one man, or assembly of men, to bear their person; and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act, or cause to be acted, in those things which concern the common peace and safety; and therein to submit their wills, every one to his will, and their judgements to his judgement. This is more than consent, or concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner. This done, the multitude so united in one person is called a COMMONWEALTH; in Latin, CIVITAS. This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god to which we owe, under the immortal God, our peace and defence. For by this authority, given him by every particular man in the Commonwealth, he hath the use of so much power and strength conferred on him that, by terror thereof, he is enabled to form the wills of them all, to peace at home, and mutual aid against their enemies abroad.
And in him consisteth the essence of the Commonwealth; which, to define it, is: one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all as he shall think expedient for their peace and common defence.
And he that carryeth this person is called sovereign, and said to have sovereign power; and every one besides, his subject.-
In other respects Plato and Hobbes are probably as different as philosophers can be, but on the need for unity in the organisation of political power they are in full agreement: peace and prosperity come at the price of giving up independent decision-making to one person (or at most a few persons who can be trusted to act "as one man"). One important difference, however, is that Plato insisted that the one person who makes all the decisions should be not just any ruler, but a philosopher who by nature and training has come to know The Truth. Hobbes, on the other hand, was willing to accept that any form of effective unity serves the purpose of peace. For Hobbes, the proper characteristic of the ruler is the ability to amass and keep sufficient power to enforce his rule, not his eligibility for the Hall of Fame of The Great Philosophers.
Consensus
If diversity, as defined above, is a necessary condition of war, then lack of diversity, i.e. consensus, is a sufficient condition of peace. The idea of consensus resembles that of unity, but does not imply the need for a authoritarian monarch and a strong apparatus of power devoted exclusively to enforcing his will on the rest of society. Whereas "unity" essentially embodies a top-down conception of social order, "consensus" opens up the possibility of a bottom-up conception of order. In political terms: the state, or whatever the actual system of rule might be, is an institutionalised expression of shared beliefs and convictions. As such it is not an oppressive institution, but an instrument of self-realisation or self-determination.
"Consensus" presupposes, that diversity of opinion, taste, and ambition is no more than an accident, a symptom of some remediable deficiency of intellectual or moral education, or of perverse habits or institutions that prevent people from seeing everything in the same light. Thus, disagreement is often attributed to foolishness, irresponsibility, or bad faith, either of the disagreeing person himself or of those who are responsible for his education or circumstances. It is sometimes held, that diversity of opinion is an illusion, and that deep down all people are of the same opinion on all fundamental, and by implication on all, questions. Sometimes it is said, that because all opinions are acquired, it should be possible to teach people to always agree on everything that is in any way important to social existence. Diversity of opinion is a cause of conflict, but it is one that appears to be relatively easy to manage.
Famous advocates of the consensus-idea are Aristotle (4th century BC.) and Jean-Jacques Rousseau (France, 18th century). In chapter 1 of book II of Du Contrat Social, Jean-Jacques Rousseau (1712-1778) introduces the case for consensus as the basic requirement of political life in the following terms:
If the opposition of particular interests has created the need for the establishment of societies, it is the agreement of these same interests that has made their establishment possible. It is only what is common in these different interests that constitutes the social bond if there were not some point on which all the interests are agreed, no society could exist. Well, it is only on the basis of this common interest that the society should be governed.
Figure 5
The common interest or will should be the source of all legislation, and hence of every particular application of the laws. But the common interest that makes society possible does not amount to a mere interest in justice-for that is a universal interest, that cannot serve to separate the members of one society from that of another. Rather it is a common interest in a particular set of fundamental values and opinions-Rousseau is not talking about human society in general, but about particular organised societies, those that are distinguished by the fact that each of them has its own system of government.
Aristotle defined the city (i.e. the autonomous political entity of ancient Greece) as a community based on a "common conception of what is good and useful", a common conception of the good life. Thus, the basis of peaceful coexistence is a supposed deep consensus on fundamental values in practical matters. I use the words 'deep consensus' to indicate that we are not talking about the sort of consensus that emerges as the conclusion of a process of negotiation or wheeling and dealing. That politics should resemble the market place , is a thought Aristotle most vehemently rejected. Consensus in the market place occurs, when two people-whether they are subject to the same government or not-agree to the same terms in making a contract. Such an agreement in no way indicates that the parties are in fundamental agreement on what is good and useful, or that they would agree on much else besides the contract they make. There may be no injustice whatsoever in their dealings; nevertheless, they are not in a society with each other, because they do not share the same moral outlook, and have made no arrangements to enforce it-at best they are part of a network of social relations, in which each member has some kind of connection to some other member(s). A central theme of the consensus theorists is, that such a network is not the same thing as a society, even if all the connections are according to natural law, and therefore just.
Consensus is not a compromise. On the contrary, it is what was there from the start, although it may be hidden from view because of men's fallibility and weakness. As with Plato, peace requires the discovery of a common truth, only with Aristotle it is not some timeless Objective Truth, accessible only to the philosopher, but a particular set of convictions that is supposed to define the identity of the city. Not the philosophers, but the "best citizens" are the authorities one should turn to find out how problems are to be solved in their city. They are the leaders of the community, well-acquainted with the ways and customs of the city, experienced decision-makers, trained and educated to rule. They are, in short, the prominent, well-known and respected members of the community, its 'notables' or 'nobles'.
The classical Aristotelian conception of consensus thus turns out to be decidedly aristocratic. Peace is to be found in a social order that, regardless of its formal legal constitution, is imbued with an aristocratic ethos of respect for status and tradition. The traditional way embodies the fundamental consensus, and status is the mark of him who in his person and in all his actions represents the vitality of the tradition. Because the nobles are a class and as such a class of equals, the Aristotelian conception can easily be translated in democratic terms. However, Aristotle had a very restricted notion of citizenship: slaves, immigrants, women, servants and other subordinate members of a household, were in any case excluded from citizenship, and even legally free men who engaged in manual labour or commerce were thought to be unfit to participate in political affairs. Workers have to spend all of their energies to make ends meet, and self-preservation is likely to be their only concern. So how can they be expected to care for the common good, and, if they do, when should they find the opportunity to become skilled in managing the affairs of a city? As for merchants, they are the archetypal wheelers and dealers, always on the move, always trying to please their customers, making compromises. Tradition and principle mean nothing to them. Only the well-established owners of farms and mines, whose wealth is tied to the land, and therefore to the city, are the worthy citizens. Their personal fate is inextricably linked to that of the city, and their business requires planning for the long term and often great skill in managing a large labour-force.
Political rule, for Aristotle, is "rule of free men, by free men, for the good of the city". His solution of the problem how a man can be free while he is being ruled by another, was that free men take turns at ruling and being ruled. Because true nobility in a city implies adherence to the same traditions and fundamental values, the regular change in personnel is supposed not to endanger the identity and continuity of life in the city. The rotation of rulers, all selected from the same class, ensures that no class of professional politicians emerges, and keeps the ruling class rooted in the ordinary life of the city, in its traditions and its distinctive values. This enables them to perform their essential political function: to act as guardians of the tradition, to educate the lesser members of the city in its proper ways, and to watch over the morals of each and all - in short, to maintain the consensus that is at the basis of social life.
The influence of Aristotle has been enormous, first in the later Roman Republic, but especially in Christian Europe, where the feudal organisation of society that emerged after the collapse of the Roman Empire made nonsense of the Platonic conception of monarchy. And even when the state began to emerge in Europe, at first in the form of absolute monarchy, the aristocratic conception of politics, inspired by the Roman Republic and the Aristotelian ideals of nobility and citizenship, remained a vital force until the first world war brought the masses into the business of war-making and so into positions of political power.
If Aristotle's politics of consensus was patently traditionalist and aristocratic, Rousseau's version of the theory of consensus-politics was neither of these. It was in fact an attempt to use the Aristotelian notion of the free citizen as one who rules and is ruled as the model of legitimacy for the modern centralised state. The state, like all systems of political rule, is marked by a relation of command and obedience. But unlike traditional systems of rule of the type Aristotle advocated, the idea of the state represented a variation on the theme of monarchical absolutism with its implication of legislative sovereignty.
Rousseau objected to the monarchical aspect of absolutism, since it appeared to involve a contradiction. What sort of unity is there, Rousseau asked, when one rules and others are ruled, when some make law for all? Echoing Aristotle's complaint against Plato, Rousseau condemned the Hobbesian conception of the state as an excessive and tyrannical unity, because it is not rooted in a real consensus, but imposed by force. Regardless of the contractual basis Hobbes supplied for monarchical rule, the result is destructive of liberty.
For Rousseau, a free man does not live under a law imposed by another, but either under no law at all or under a law he has imposed on himself. For a man to be free in a state, he must be the maker of the law of the state. This is clear enough. But how can every person in the state be free? Only, according to Rousseau, if every person accepts every law as one he has imposed on himself. That is to say, the whole people must unanimously endorse the same laws. However, as long as we regard the people in the state as natural individual men, such unanimity should not be expected, except in very exceptional circumstances. The reason is that individuals are passionate beings, with private interests and private views. Each will see a piece of legislation primarily in the light of how it affects himself. In a world populated by natural men, the state can only be the instrument of private interests. Hobbes had failed to see this. He had not sufficiently appreciated the radical implications of the nature of the state. The state, as Plato had taught long ago, requires a new breed of men, devoid of natural passions: it requires citizens, guardians of the city, wholly committed to the common good.
But the problem with Plato's theory was its monarchical structure: one rules, all the others obey, either because they are committed citizens or because they are left powerless to resist the state. Rousseau's solution was to make citizens of all men and to entrust the business of ruling to all of them. Because citizens as such are wholly committed to, indeed essentially defined by, the requirement of the common good, unanimity is not a problem. Whereas any individual citizen may be mistaken in his view of what the common in any particular case requires, he cannot doubt that the common good is what all citizens without exception want. They all want the same thing: that is the consensus at the base of the political order.
Consensus, as both Aristotle and Rousseau realised perfectly well, can be a very restrictive, intolerant, even oppressive, rule for men as they actually are. Because to live freely is to live in a consensus with one's fellows, those who live by any other standard put themselves outside the community of the latter. Conversely, when the leaders or the majority of a community enforce what they assume to be the basic consensus of the community on its members, they "force them to be free" (to quote Rousseau). The idea is, that such force keeps them from being enslaved by their own passions and desires, and so protects their "true interest" or "true happiness" as members of the community (i.e. as citizens).
Rousseau's solution was in more than one sense an extension of Aristotle's idea of the citizen as one who is both a ruler and a subject. It was an extension in the sense that citizenship was to be inclusive rather than exclusive, extending to all, rather than to just an elite. But it was also an extension in the sense that citizenship was to be linked to the modern conception of rule as primarily the power to make law. Aristotle's citizens were guardians of the law, of the traditions inherited from the past. Rousseau's citizens are holders of an unrestricted legislative power. Because of this they are free, subject only to self-imposed laws.
The essence of a legitimate state, for Rousseau, was the sovereignty of the People, i.e. the organised collective body comprising all citizens. Sovereignty of the People, not of the people, which is merely a mass of men, each of them with his own private interests, passions and ambitions. The People is sovereign as long as it retains the legislative power in its own hands. It loses its freedom when it leaves the business of making laws to representatives. Representation can, indeed: must, occur, because it is utterly impractical for the People to occupy itself with the daily business of government. However, representation is compatible with political liberty when it is restricted to the executive branch of the state - not when it involves the legislative branch. Thus, we should not misunderstand Rousseau's advocacy of the sovereignty of the People as an endorsement of, say, parliamentary democracy as we know it. Democracy, as Rousseau understands the term, refers to that organisation of the executive branch (the government in the strict sense) which calls upon every citizen to decide on every action of the government. That is foolishly impractical. It is wise to delegate the executive powers to a parliament, but such a parliament is, at best, an elective aristocracy. Rousseau would not accept the legitimacy of today's parliamentary democracies: they are states in which the government has usurped the legislative powers of the People, and thereby reduced all citizens to mere subjects or slaves.
Rousseau was an eccentric, but not a fool. He knew as well as anyone that by nature no man is a citizen, that citizens have to be made, and that that is a nearly impossible mission to accomplish. He did not claim to have given a practical blueprint for reconstructing the state, merely to have provided a solution to the theoretical problem of how the state can be legitimate - the problem of explaining how human beings can be free and subject to rule at the same time.
An interesting footnote to Rousseau's theory of citizenship is supplied by Karl Marx. The founder of "scientific socialism" used Rousseau's unselfish, public-spirited citizen as the model for the new social man who would inherit the earth after the revolutionary demise of capitalist bourgeois society. In doing this, Marx extended the idea of the citizen far beyond Rousseau's intentions. For Rousseau, the idea of the citizen was of relevance only in the context of political relationships (i.e. to provide a solution to the problem of legitimising power and its coercive uses). Economic matters were not problematic being an extension of man's vital animal needs, they would take care of themselves once the proper political framework was set up (a common assumption in classical political philosophy, where it was generally accepted that nature is a self-subsisting order). Marx turned this relation between politics and economics around: politics would cease to be problematical once the economy is set aright. And it would be set aright only when the ethos of the unselfish citizen, who in his political activities (voting) considers not his own private and selfish interests but the common good, begins to govern man's economic actions as well. The concern for the common good, in short, would have to manifest itself in one's daily work, and not just in one's duties as a citizen. Thus Marx strove to drive natural man not only out of the political sphere, but also out of the economic sphere. In the coming communist society, the natural man would survive only within the margin of "free time" (leisure), where he would be free to do whatever he wants "while society takes care of general production".
As with unity, the primary objective of the consensus view is, that all people act "with one will", only here it is not the will of one particular natural or fictional person (an autocrat or a ruling assembly), but the genuine "will of all"-a will that is supposed to be directed towards the common interest of all. As a political idea, consensus stands for the primacy of the common or public interest, the common will. Often this common will is called 'morality', because the presumption is, that it is always directed towards the right and the good and the useful. It follows, that the more morally correct or excellent a person is, the more his views should be seen as expressions of the consensus which is the supposed basis of society. Consensus makes for a far more impersonal form of government than unity. The personal identity of the rulers is not very important, if what counts is their ability to discern the common interest or the common will.
Because the common interest, the common will, and morality are neither empirically given nor evident to all, the appeal to the deep consensus that is supposed to unite a society or community must be made by experts, prominent members in good standing of the community. Many theories of democracy (though by no means all) assume the existence of something they call 'the will of the people' or 'the common or true interest of the community'. Democratic consensus theories hold, that democracy is essentially a process of electing persons who are supposed to act as "representatives of the people" for the purpose of furthering the common interest which the voters themselves may not be able to determine. These representatives are not to be seen as "representatives of the particular interests of the people who vote for them"-their role is not that of reducing many wills to one will (as it is under a democratic monarchy), but of solving problems and making choices in accordance the supposed common interest, the fundamental values or morality of the community.
However, as should be clear by now, consensus theorists are not necessarily democrats. Many of them have defended the view, that the best guarantee for maintaining community standards and furthering the common interest is to entrust authority to a single traditional ruler (a king, prepared from early childhood for the performance of his exalted duties), a deliberative assembly of nobles or prominent families (an hereditary aristocracy), or a "natural elite" of prominent social, moral, spiritual or intellectual leaders (a meritocracy), or even to a body of scientists and experts (a technocracy)-whoever is considered to be most able to discern the common interest. Thus, many consensus theorists dismiss democracy on the ground, that the voters will end up voting for demagogues and sycophants, who do not have the common interest at heart, but their own particular interest in re-election and staying in power. Others dismiss it on the ground, that democracy is likely to become a merely formal procedure-a system of counting votes, i.e. a democratic monarchy-that makes no contribution to the discovery of "the right thing to do".
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The idea of a moral consensus is clearly expressed in Aristotle's Politics, chapter nine of book III, which is also outstanding in its insistence on the "moral role" of the state. Thus, in Aristotle's view, the administration of justice and the enforcement of law are much less important than moral guidance and censorship. In book I, Aristotle had stated in very general terms, that
it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state.
However, in III, 9 he makes it clear, that not just any association of moral beings with a sense of justice makes a state. On the contrary, justice, in the ordinary sense of securing people's natural rights, is explicitly denied to be what the state is all about. The state is said to exist "for the sake of a morally good life", i.e. "to take care that there is no wickedness or vice, not merely to take care that there is no injustice". The enforcement of a particular morality, which is supposed to be that of the community, is the essential task of the state.
The Moral Quality of the State
But a state exists for the sake of a good life, and not for the sake of life only: if life only were the object, slaves and brute animals might form a state, but they cannot, for they have no share in happiness or in a life of free choice. Nor does a state exist for the sake of alliance and security from injustice, nor yet for the sake of exchange and mutual intercourse; for then the Tyrrhenians and the Carthaginians, and all who have commercial treaties with one another, would be the citizens of one state. True, they have agreements about imports, and engagements that they will do no wrong to one another, and written articles of alliance. But there are no magistrates common to the contracting parties who will enforce their engagements; different states have each their own magistracies. Nor does one state take care that the citizens of the other are such as they ought to be, nor see that those who come under the terms of the treaty do no wrong or wickedness at all, but only that they do no injustice to one another. Whereas, those who care for good government take into consideration virtue and vice in states. Whence it may be further inferred that virtue must be the care of a state which is truly so called, and not merely enjoys the name: for without this end the community becomes a mere alliance which differs only in place from alliances of which the members live apart; and law is only a convention, 'a surety to one another of justice,' as the sophist Lycophron says, and has no real power to make the citizens good and just.
This is obvious; for suppose distinct places, such as Corinth and Megara, to be brought together so that their walls touched, still they would not be one city, not even if the citizens had the right to intermarry, which is one of the rights peculiarly characteristic of states. Again, if men dwelt at a distance from one another, but not so far off as to have no intercourse, and there were laws among them that they should not wrong each other in their exchanges, neither would this be a state. Let us suppose that one man is a carpenter, another a husbandman, another a shoemaker, and so on, and that their number is ten thousand: nevertheless, if they have nothing in common but exchange, alliance, and the like, that would not constitute a state. Why is this? Surely not because they are at a distance from one another: for even supposing that such a community were to meet in one place, but that each man had a house of his own, which was in a manner his state, and that they made alliance with one another, but only against evil-doers; still an accurate thinker would not deem this to be a state, if their intercourse with one another was of the same character after as before their union. It is clear then that a state is not a mere society, having a common place, established for the prevention of mutual crime and for the sake of exchange. These are conditions without which a state cannot exist; but all of them together do not constitute a state, which is a community of families and aggregations of families in well-being, for the sake of a perfect and self-sufficing life. Such a community can only be established among those who live in the same place and intermarry. Hence arise in cities family connections, brotherhoods, common sacrifices, amusements which draw men together. But these are created by friendship, for the will to live together is friendship. The end of the state is the good life, and these are the means towards it. And the state is the union of families and villages in a perfect and selfsufficing life, by which we mean a happy and honorable life.
Our conclusion, then, is that political society exists for the sake of noble actions, and not of mere companionship. Hence they who contribute most to such a society have a greater share in it than those who have the same or a greater freedom or nobility of birth but are inferior to them in political virtue; or than those who exceed them in wealth but are surpassed by them in virtue.Abundance
Unity and consensus are primarily "political" solutions of our problem of conflict. This is obvious from what has been said above. The common thrust of both is to rearrange decision making in such a way that all human actions within a particular society-a politically organised community- are governed, or at least controlled, by the same will, the same values and opinions. Thus, their main emphasis is on control over people. The next solutions we shall consider are not so much "political" as "economic": their common thrust is not to control people, but to take the sting out of the scarcity of the natural resources used in human action.
Suppose we could overcome the condition of scarcity, and so achieve abundance, a state of affairs in which there is enough for everybody, regardless of the diversity of needs, wants and desires? Especially with respect to scarce commodities, many people have toyed with idea that scarcity is not an inevitable curse. A common theme in many mythologies all over the world is, that once people lived in a sort of paradise, a "land of milk and honey", and that they lost that happy condition because of some regrettable mistake. Why should it be impossible to undo that mistake?
If one believes that scarcity is not a fundamental fact, beyond the influence of human action, then one may hope to eliminate or reduce scarcity and arrive at a condition of abundance or near-abundance - a return to Paradise. Ancient forms of this belief usually focused on education and expressed a preference for the ethical position known as 'asceticism'. The basic (and sound) idea is, that scarcity is a relation between what is desired and what is available (demand and supply in the economists' language). Asceticism implies that scarcity can be overcome by a strict control of desire, by self-denial and contentment with "the simple life".
Asceticism sees scarcity as a symptom of some sort of disease or malfunctioning, either of the human psyche or of human society as such-an addiction to "artificial" and "unnatural" desires. Are not most wants and desires "culturally determined" rather than "rooted in the genes". Especially today, when untold sums of money are invested in advertising, education, schooling, and other forms of propaganda, and new articles of consumption, tools and gadgets of all kinds flood the market, the proposition that people want what they have been taught to want seems to be incontestable. Can't we, then, begin to unlearn these artificial desires. If the artificial wants are socially conditioned, can't we reform society and get rid of them? Let's concentrate on the essential things, and it will appear that there is enough for everybody. Then scarcity will no longer be a plague on our house. If only we would not be so greedy and demanding, there would be enough of everything for everybody! Moreover, because unfulfilled desires are the source of unhappiness, the control of desire is the best guarantee of happiness.
A more recent, and in some respects radically different, response to scarcity is to accept the human desires as they are, but to indict man or society for the fact that there is not enough to satisfy all of them. Again, we find people who claim that education and training actually shackle the productive capacities of mankind, as well as people who blame inappropriate and inefficient social structures. With the proper methods of education and/or the proper reforms of society, undreamed of productive capacities would be unleashed, and scarcity would disappear. Thus, it has been suggested, that we can re-enter into the blessed state of abundance by overcoming through spiritual training the limitations of our particular selves, thereby achieving "unity with the universe", or by abolishing private property, thereby bringing "all the productive powers of nature under the united control of the whole of mankind". If there is no limit to the powers of production, there is no compelling reason to suppress desire or to practice self-denial. Extreme hedonism and visions of a totally uninhibited "flowering of the human personality" and absolute "autonomy"-doing what one wants without fear of failure-are familiar aspects of this modern belief.
The virtues of a society of abundance, whether achieved through restraining sources of demand, or through unshackling sources of supply, are explored more often than not in the imaginative and metaphorical literature of asceticism on the one hand, and of utopianism on the other hand. Utopian literature is a typically modern genre. It flourished from the seventeenth to the end of the nineteenth century, when utopianism was translated into the actual political programmes of many revolutionary and reform movements.
However, some utopian themes have more ancient roots, and one of them-the idea of a New Man, or New Adam-has long been a staple of academic political literature. We have already seen that Plato's approach to social peace rested to a large extent on making a new breed of men, the "guardians" of society. The life-style of these model-citizens was to be utterly ascetic. In modern times, Rousseau picked up these ideas: the guardians of society, Rousseau's citizens, are not natural human beings as they come out of the womb, but artificial persons, tailor-made to fit the requirements of the "legitimate state". One reason for the need for a new kind of man, was Rousseau's belief, that no society, no matter how well-designed politically, would be able to resist the destructive onslaughts of the pursuit of wealth and riches. The new man, the citizen, would be free of this natural desire, because his will as a citizen is fixed only on the common good, not on particular advantage. In a complete break with this ascetic tradition, Marx argued that the extension of the virtues of citizenship to economic production would multiply productive capacities beyond imagination and so eliminate the need for a frugal, ascetic existence as the price of everlasting peace-but the Communist Man, of whom Marx made himself the herald, would still be a New Man, quite unlike the natural man we know from personal and historical experience. The search for a New Man is one the recurrent politico-religious themes in modern history, especially in the twentieth century. It animated the utopian experiments in the Soviet Union, the People's Republic of China, and in National Socialist Germany, and even today utopianism remains a strong religious force among "progressive" intellectuals.
In political terms abundance, whether in its ascetic or its productivist form, usually translates into a form of anarchism or anarcho-communism. Under conditions of abundance everybody can have everything he wants, there is therefore little or no risk that one person can satisfy his desires only at the expense of another. Thus government can be reduced to taking care that everybody effectively gets what he wants. As one famous phrase put it, instead of the government of men, there will be only administration of things. In a well-known passage from Marx's Critique of the Gotha Programme, we read:
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In a higher phase of communist society, when the slave-like subjection of individual human beings to the division of labour, and therefore also the opposition between manual and intellectual labour, will have disappeared; when labour will no longer be a mere means of survival, but also the foremost expression of vitality; when together with the universal development of the individuals also their productive powers will have grown, and all the sources of social wealth will overflow-then, and only then, will it be possible to move beyond the limiting horizon of law, and to inscribe on the banner of society: From each according to his abilities to each according to his needs!
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The passage is famous for its final phrase, which is usually interpreted as a principle of distributive justice. However, as the context makes clear, Marx does not present it as such. What he says is, that in communist society there will no longer be a problem of distributive justice, because scarcity itself will have come to an end. Communism is not defended on the ground of its justice, but on the ground that it allows us to dispense with the notion of justice altogether. Communism, in short, is not just another political regime, but the outcome of a radical transformation of the human condition, in which all the boundaries separating one person from another-i.e. property and law-will have disappeared. Consequently, there will be no more need for justice, i.e. for respect for law. Everything, including every human talent and faculty, will be common, and therefore accessible to all. It follows, that there will be no one who will deny anything to anybody. There are then no human limits to the fulfilment of the human potential. Moreover, in other writings, Marx had even stated that in communist society even the boundary between man and the natural environment will no longer exist:
Communism is the positive abolition of private property and thus of human self-alienation and therefore the real reappropriation of the human essence by and for man. This is communism as the complete and conscious return of man himself as a social, i.e. human being. Communism... is the genuine solution of the antagonism between man and nature and between man and man. It is the true solution of the struggle between existence and essence, between objectivication and self-affirmation, between freedom and necessity, between individual and species. It is the solution to the riddle of history and it knows itself to be this solution.
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In Communism society completes the essential unity of man with nature, it is the genuine resurrection of nature, the fulfilled naturalism of man and humanism of nature... For not only the five senses, but also the so-called spiritual and moral senses (will, love, etc.), in a word, human love and the humanity of the senses come into being only through the existence of their object, through nature humanised. The development of the five senses is a labour of the whole previous history of the world.
In other words, communism is the condition in which every human being becomes one with every other human being, with the human species as a whole, with the world, and finally with the universe itself. In short, communist man is the ultimate being-what other religions called God-for whom there are no limits. Being all and everything, communist man lacks nothing-he is perfect, without any want. And what keeps man from achieving this blessed state? His addiction to private property and exclusive personal relationships, such as they exist in the traditional family-in short, his addiction to his particular individual personality. This idea that selfhood is the root of all evil, is a recurrent theme is mystical religious thought. We have heard an echo of it in Plato's exaltation of the state of perfect unity, which we have quoted above. In fact Plato was very explicit about it. In the same fifth book of The Laws he stated:
Of all evils the greatest is one which in the souls of most men is innate, and which a man is always excusing in himself and never correcting; I mean, what is expressed in the saying that "Every man by nature is and ought to be his own friend." Whereas the excessive love of self is in reality the source to each man of all offences; for the lover is blinded about the beloved, so that he judges wrongly of the just, the good, and the honourable, and thinks that he ought always to prefer himself to the truth. But he who would be a great man ought to regard, not himself or his interests, but what is just, whether the just act be his own or that of another. Through a similar error men are induced to fancy that their own ignorance is wisdom, and thus we who may be truly said to know nothing, think that we know all things; and because we will not let others act for us in what we do not know, we are compelled to act amiss ourselves. Wherefore let every man avoid excess of self-love, and condescend to follow a better man than himself, not allowing any false shame to stand in the way.
Note, that Plato does not suggest, that the risks of self-serving judgements should be countered by the traditional practices of holding every one accountable and liable for his own actions, and of appealing to independent judges or arbitrators-the practice of justice, as it is commonly understood. The suggestion is, that people agree to submit to a better man, a ruler, who will take charge of their lives and free them of the risk of making wrong judgements. Note also, that there is still a whiff of naturalism here: self-denial is a virtue only for "most men", who should agree to follow "the better man". Utopianism, on the other hand, and utopian communism in particular, suggests a universal denial of self: the self, even the self of a leader, is a limiting condition; as long as there remains a trace of it, man cannot rise to the boundless condition of infinity. (In practice, of course, utopian communism has to fall back on the Platonic conception of political community as a sect, a grouping of leaders and followers, guru's and adepts.)
Asceticism also remains a relevant force in today's politics, for example among environmentalists or ecologists and other New Age adepts, in which we find similar mystical views of the unity of nature and the need for a reunification of man and nature. The main difference seems to be, that the utopian communists want to reabsorb nature into man, i.e. to make nature a part of man, while the greens apparently want man to be reabsorbed into nature, i.e. to make man a part of nature. Thus, the communists proclaim the superiority of man over nature, and the "liberation" of man from natural constraints, while the greens proclaim the superiority of nature over man, and the "liberation" of nature from human constraints. A common theme is, that mankind, as it has evolved throughout history, must adopt a new way of life that is the reverse of the old way of production and exchange. In fact, it is a characteristic of both views, that they are clearly opposed to a market society, and very much in favour of stringent controls on what Adam Smith called 'the human propensity to truck, barter, and exchange one thing for another'. As one "green" educator put it:
For a long time to come, our top national priority...should be to reduce the GNP as fast as possible, because we are grossly overdeveloped and over-producing and over-consuming and there's no possibility of all people ever rising to the per capita levels we now have, let alone those we are determined to grow to.
...
There would be far less trade and transporting of goods than there is now. There would have to be many co-operative arrangements: the sharing of tools, many community workshops, orchards, forest, ponds, gardens, working bees, and regular community meetings.
Applying the concept of appropriate development in the over-developed countries would make it possible for most people to live well on only one day's work for cash a week, because many of the relatively few things they need would come from their own gardens, from barter, from gifts of surpluses and from the many free resources within the neighbourhood.
This direct attack on the city and on civilisation-which is also an implicit plea for a phenomenal reduction of the human population-echoes the dreams of the eighteenth century aristocrats of an Arcadian utopia, where everybody would find complete happiness in the ascetic and supposedly simple life of a shepherd living on the generous bounties of nature. It also echoes the utopian socialism of Charles Fourier, and, of course, the Book of Revelation.
On the practical side, the New Asceticism manifests itself as the New Protectionism, a concept promoted by such powerful lobbies as Greenpeace and The International Forum on Globalisation (as well as numerous business groups and trade associations). Summarising the political programme of the New Protectionism, one of its most outspoken advocates notes the need for "import and export controls, controls on transnational corporations, controls on banks and pensions, insurance and investment funds to insure 'an invest here to prosper here' policy, limits on the size of companies and subsidies to new local companies, international aid in stead of international trade, relocalisation of industry" and, of course, "resource taxes, tariffs and controls"-all in the name of "sustainable regional self-reliance". Apparently, building the road to Arcadia requires a massive re-direction of investment, away from economic institutions of production and trade and into political institutions of taxation, regulation, and police power.
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Bastiat on utopian reformWhile society is struggling toward liberty, these famous men who put themselves at its head are filled with the spirit of the seventeenth and eighteenth centuries. They think only of subjecting mankind to the philanthropic tyranny of their own social inventions. Like Rousseau, they desire to force mankind docilely to bear this yoke of the public welfare that they have dreamed up in their own imaginations.
This was especially true in 1789. No sooner was the old regime destroyed than society was subjected to still other artificial arrangements, always starting from the same point: the omnipotence of the law.
Listen to the ideas of a few of the writers and politicians during that period:
SAINT-JUST: The legislator commands the future. It is for him to will the good of mankind. It is for him to make men what he wills them to be.
ROBESPIERRE: The function of government is to direct the physical and moral powers of the nation toward the end for which the commonwealth has come into being.
BILLAUD-VARENNES: A people who are to be returned to liberty must be formed anew. A strong force and vigorous action are necessary to destroy old prejudices, to change old customs, to correct depraved affections, to restrict superfluous wants, and to destroy engrained vices.... Citizens, the inflexible austerity of Lycurgus created the firm foundation of the Spartan republic. The weak and trusting character of Solon plunged Athens into slavery. This parallel embraces the whole science of government.
LE PELLETIER: Considering the extent of human degradation, I am convinced that it is necessary to effect a total regeneration and, if I may so express myself, of creating a new people.Again, it is claimed that persons are nothing but raw material. It is not for them to will their own improvement; they are incapable of it. According to SaintJust, only the legislator is capable of doing this. Persons are merely to be what the legislator wills them to be. According to Robespierre, who copies Rousseau literally, the legislator begins by decreeing the end for which the commonwealth has come into being. Once this is determined, the government has only to direct the physical and moral forces of the nation toward that end. Meanwhile, the inhabitants of the nation are to remain completely passive. And according to the teachings of Billaud-Varennes, the people should have no prejudices, no affections, and no desires except those authorized by the legislator. He even goes so far as to say that the inflexible austerity of one man is the foundation of a republic.
In cases where the alleged evil is so great that ordinary governmental procedures cannot cure it, Mably recommends a dictatorship to promote virtue: "Resort," he says, "to an extraordinary tribunal with considerable powers for a short time. The imagination of the citizens needs to be struck a hard blow." This doctrine has not been forgotten. Listen to Robespierre:
The principle of the republican government is virtue, and the means required to establish virtue is terror. In our country we desire to substitute morality for selfishness, honesty for honor, principles for customs, duties for manners, the empire of reason for the tyranny of fashion, contempt of vice for contempt of poverty, pride for insolence, greatness of soul for vanity, love of glory for love of money, good people for good companions, merit for intrigue, genius for wit, truth for glitter, the charm of happiness for the boredom of pleasure, the greatness of man for the littleness of the great, a generous, strong, happy people for a good-natured, frivolous, degraded people; in short, we desire to substitute all the virtues and miracles of a republic for all the vices and absurdities of a monarchy.At what a tremendous height above the rest of mankind does Robespierre here place himself! And note the arrogance with which he speaks. He is not content to pray for a great reawakening of the human spirit. Nor does he expect such a result from a well-ordered government. No, he himself will remake mankind, and by means of terror.
This mass of rotten and contradictory statements is extracted from a discourse by Robespierre in which he aims to explain the principles of morality which ought to guide a revolutionary government. Note that Robespierre's request for dictatorship is not made merely for the purpose of repelling a foreign invasion or putting down the opposing groups. Rather he wants a dictatorship in order that he may use terror to force upon the country his own principles of morality. He says that this act is only to be a temporary measure preceding a new constitution. But in reality, he desires nothing short of using terror to extinguish from France selfishness, honor, customs, manners, fashion, vanity, love of money, good companionship, intrigue, wit, sensuousness, and poverty. Not until he, Robespierre, shall have accomplished these miracles, as he so rightly calls them, will he permit the law to reign again.Usually, however, these gentlemen-the reformers, the legislators, and the writers on public affairs-do not desire to impose direct despotism upon mankind. Oh no, they are too moderate and philanthropic for such direct action. Instead, they turn to the law for this despotism, this absolutism, this omnipotence. They desire only to make the laws.
To show the prevalence of this queer idea in France, I would need to copy not only the entire works of Mably, Raynal, Rousseau, and Fenelon-plus long extracts from Bossuet and Montesquieu-but also the entire proceedings of the Convention.
I shall do no such thing; I merely refer the reader to them.It is, of course, not at all surprising that this same idea should have greatly appealed to Napoleon. He embraced it ardently and used it with visor. Like a chemist, Napoleon considered all Europe to be material for his experiments. But, in due course, this material reacted against him.
At St. Helena, Napoleon-greatly disillusioned-seemed to recognize some initiative in mankind. Recognizing this, he became less hostile to liberty. Nevertheless, this did not prevent him from leaving this lesson to his son in his will: "To govern is to increase and spread morality, education, and happiness."
Critique of the utopian socialists
After all this, it is hardly necessary to quote the same opinions from Morelly, Babeuf, Owen, Saint-Simon, and Fourier. Here are, however, a few extracts from Louis Blanc's book on the organization of labor: "In our plan, society receives its momentum from power." Now consider this: The impulse behind this momentum is to be supplied by the plan of Louis Blanc; his plan is to be forced upon society; the society referred to is the human race. Thus the human race is to receive its momentum from Louis Blanc.
Now it will be said that the people are free to accept or to reject this plan. Admittedly, people are free to accept or to reject advice from whomever they wish.
But this is not the way in which Mr. Louis Blanc understands the matter. He expects that his plan will be legalized, and thus forcibly imposed upon the people by the power of the law:In our plan, the state has only to pass labor laws (nothing else?) by means of which industrial progress can and must proceed in complete liberty. The state merely places society on an incline (that is all?). Then society will slide down this incline by the mere force of things, and by the natural workings of the established mechanism.
But what is this incline that is indicated by Mr. Louis Blanc? Does it not lead to an abyss? (No, it leads to happiness.) If this is true, then why does not society go there of its own choice? (Because society does not know what it wants; it must be propelled.) What is to propel it? (Power.) And who is to supply the impulse for this power? (Why, the inventor of the machine-in this instance, Mr. Louis Blanc.)
We shall never escape from this circle: the idea of passive mankind, and the power of the law being used by a great man to propel the people.
Once on this incline, will society enjoy some liberty? (Certainly.) And what is liberty, Mr. Louis Blanc? Once and for all, liberty is not only a mere granted right; it is also the power granted to a person to use and to develop his faculties under a reign of justice and under the protection of the law. -
And this is no pointless distinction; its meaning is deep and its consequences are difficult to estimate. For once it is agreed that a person, to be truly free, must have the power to use and develop his faculties, then it follows that every person has a claim on society for such education as will permit him to develop himself. It also follows that every person has a claim on society for tools of production, without which human activity cannot be fully effective. Now by what action can society give to every person the necessary education and the necessary tools of production, if not by the action of the state? Thus, again, liberty is power. Of what does this power consist? (Of being educated and of being given the tools of production.) Who is to give the education and the tools of production? (Society, which owes them to everyone.) By what action is society to give tools of production to those who do not own them? (Why, by the action of the state.) And from whom will the state take them? Let the reader answer that question. Let him also notice the direction in which this is taking us.
The contradiction of democratic socialism
The strange phenomenon of our times-one which will probably astound our descendants-is the doctrine based on this triple hypothesis: the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislator. These three ideas form the sacred symbol of those who proclaim themselves totally democratic.
The advocates of this doctrine also profess to be social. So far as they are democratic, they place unlimited faith in mankind. But so far as they are social, they regard mankind as little better than mud. Let us examine this contrast in greater detail.
What is the attitude of the democrat when political rights are under discussion? How does he regard the people when a legislator is to be chosen? Ah, then it is claimed that the people have an instinctive wisdom; they are gifted with the finest perception; their will is always right; the general will cannot err; voting cannot be too universal.
When it is time to vote, apparently the voter is not to be asked for any guarantee of his wisdom. His will and capacity to choose wisely are taken for granted.
Can the people be mistaken? Are we not living in an age of enlightenment? What! are the people always to be kept on leashes? Have they not won their rights by great effort and sacrifice? Have they not given ample proof of their intelligence and wisdom? Are they not adults? Are they not capable of judging for themselves? Do they not know what is best for themselves? Is there a class or a man who would be so bold as to set himself above the people, and judge and act for them? No, no, the people are and should be free. They desire to manage their own affairs, and they shall do so.
But when the legislator is finally elected-ah! then indeed does the tone of his speech undergo a radical chance. The people are returned to passiveness, inertness, and unconsciousness; the legislator enters into omnipotence. Now it is for him to initiate, to direct, to propel, and to organize. Mankind has only to submit; the hour of despotism has struck. We now observe this fatal idea: The people who, during the election, were so wise, so moral, and so perfect, now have no tendencies whatever; or if they have any, they are tendencies that lead downward into degradation.But ought not the people be given a little liberty? But Mr. Considerant has assured us that liberty leads inevitably to monopoly!
We understand that liberty means competition. But according to Mr. Louis Blanc, competition is a system that ruins the businessmen and exterminates the people. It is for this reason that free people are ruined and exterminated in proportion to their degree of freedom. (Possibly Mr. Louis Blanc should observe the results of competition in, for example, Switzerland, Holland, England, and the United States.) Mr. Louis Blanc also tells us that competition leads to monopoly. And by the same reasoning, he thus informs us that low prices lead to high prices; that competition drives production to destructive activity; that competition drains away the sources of purchasing power, that competition forces an increase in production while, at the same time, it forces a decrease in consumption. From this, it follows that free people produce for the sake of not consuming; that liberty means oppression and madness among the people; and that Mr. Louis Blanc absolutely must attend to it.Well, what liberty should the legislators permit people to have? Liberty of conscience? (But if this were permitted, we would see the people taking this opportunity to become atheists.) Then liberty of education? (But parents would pay professors to teach their children immorality and falsehoods; besides, according to Mr. Thiers, if education were left to national liberty, it would cease to be national, and we would be teaching our children the ideas of the Turks or Hindus; whereas, thanks to this legal despotism over education, our children now have the good fortune to be taught the noble ideas of the Romans.) Then liberty of labor? (But that would mean competition which, in turn, leaves production unconsumed, ruins businessmen, and exterminates the people.) Perhaps liberty of trade? (But everyone knows-and the advocates of protective tariffs have proved over and over again-that freedom of trade ruins every person who engages in it, and that it is necessary to suppress freedom of trade in order to prosper.) Possibly then, liberty of association? (But, according to socialist doctrine, true liberty and voluntary association are in contradiction to each other, and the purpose of the socialists is to suppress liberty of association precisely in order to force people to associate together in true liberty.) Clearly then, the conscience of the social democrats cannot permit persons to have any liberty because they believe that the nature of mankind tends always toward every kind of degradation and disaster. Thus, of course, the legislators must make plans for the people in order to save them from themselves.
This line of reasoning brings us to a challenging question: If people are as incapable, as immoral, and as ignorant as the politicians indicate, then why is the right of these same people to vote defended with such passionate insistence?The claims of these organizers of humanity raise another question which I have often asked them and which, so far as I know, they have never answered: If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? The organizers maintain that society, when left undirected, rushes headlong to its inevitable destruction because the instincts of the people are so perverse.
The legislators claim to stop this suicidal course and to give it a saner direction.
Apparently, then, the legislators and the organizers have received from Heaven an intelligence and virtue that place them beyond and above mankind; if so, let them show their titles to this superiority.
They would be the shepherds over us, their sheep. Certainly such an arrangement presupposes that they are naturally superior to the rest of us. And certainly we are fully justified in demanding from the legislators and organizers proof of this natural superiority.Please understand that I do not dispute their right to invent social combinations, to advertise them, to advocate them, and to try them upon themselves, at their own expense and risk. But I do dispute their right to impose these plans upon us by law-by force-and to compel us to pay for them with our taxes.
I do not insist that the supporters of these various social schools of thought, the Proudhonists, the Cabetists, the Fourierists, the Universitarists, and the Protectionists -renounce their various ideas. I insist only that they renounce this one idea that they have in common: They need only to give up the idea of forcing us to acquiesce to their groups and series, their socialized projects, their free-credit banks, their Graeco-Roman concept of morality, and their commercial regulations. I ask only that we be permitted to decide upon these plans for ourselves; that we not be forced to accept them, directly or indirectly, if we find them to be contrary to our best interests or repugnant to our consciences.
But these organizers desire access to the tax funds and to the power of the law in order to carry out their plans. In addition to being oppressive and unjust, this desire also implies the fatal supposition that the organizer is infallible and mankind is incompetent. But, again, if persons are incompetent to judge for themselves, then why all this talk about universal suffrage?
Omnipotent government as the cause of political unrest
This contradiction in ideas is, unfortunately but logically, reflected in events in France. For example, Frenchmen have led all other Europeans in obtaining their rights -or, more accurately, their political demands. Yet this fact has in no respect prevented us from becoming the most governed, the most regulated, the most imposed upon, the most harnessed, and the most exploited people in Europe. France also leads all other nations as the one where revolutions are constantly to be anticipated. And under the circumstances, it is quite natural that this should be the case.
And this will remain the case so long as our politicians continue to accept this idea that has been so well expressed by Mr. Louis Blanc: "Society receives its momentum from power." This will remain the case so long as human beings with feelings continue to remain passive; so long as they consider themselves incapable of bettering their prosperity and happiness by their own intelligence and their own energy; so long as they expect everything from the law; in short, so long as they imagine that their relationship to the state is the same as that of the sheep to the shepherd.As long as these ideas prevail, it is clear that the responsibility of government is enormous. Good fortune and bad fortune, wealth and destitution, equality and inequality, virtue and vice-all then depend upon political administration. It is burdened with everything, it undertakes everything, it does everything; therefore it is responsible for everything.
If we are fortunate, then government has a claim to our gratitude; but if we are unfortunate, then government must bear the blame. For are not our persons and property now at the disposal of government? Is not the law omnipotent? In creating a monopoly of education, the government must answer to the hopes of the fathers of families who have thus been deprived of their liberty; and if these hopes are shattered, whose fault is it?
In regulating industry, the government has contracted to make it prosper; otherwise it is absurd to deprive industry of its liberty. And if industry now suffers, whose fault is it? In meddling with the balance of trade by playing with tariffs, the government thereby contracts to make trade prosper; and if this results in destruction instead of prosperity, whose fault is it? In giving the maritime industries protection in exchange for their liberty, the government undertakes to make them profitable; and if they become a burden to the taxpayers, whose fault is it? Thus there is not a grievance in the nation for which the government does not voluntarily make itself responsible. Is it surprising, then, that every failure increases the threat of another revolution in France? And what remedy is proposed for this? To extend indefinitely the domain of the law; that is, the responsibility of government.
But if the government undertakes to control and to raise wages, and cannot do it; if the government undertakes to care for all who may be in want, and cannot do it; if the government undertakes to support all unemployed workers, and cannot do it; if the government undertakes to lend interest-free money to all borrowers, and cannot do it; if, in these words that we regret to say escaped from the pen of Mr. de Lamartine, "The state considers that its purpose is to enlighten, to develop, to enlarge, to strengthen, to spiritualize, and to sanctify the soul of the people"-and if the government cannot do all of these things, what then? Is it not certain that after every government failure-which, alas! is more than probable-there will be an equally inevitable revolution?
Respect for law, property or privacy
All of the pure strategies discussed so far have implications for the problem of free access or the publicness of scarce resources. Unity tries to eliminate that problem by reducing plurality: obviously, if only one person makes the socially relevant decisions, including the decisions about the use of scarce resources, there is no longer any problem of free access-only that one person, the ruler, has access to such resources. Consensus deals with the problem of free access by supposing all decisions about the use of scarce resources to reflect the fundamental common opinions and values of all. Abundance takes the sting out of free access to scarce resources by postulating the possibility of a condition in which no important resources are scarce. Thus, each of these pure strategies demands that we sacrifice some basic condition of human existence in order to deal with the problem of free access: either plurality, or diversity, or scarcity has to go.
There is, however, a fourth pure strategy. It deals with the problem of free access directly, without tampering with any of the other conditions. Consequently it does not need to invoke the quasi-mythical figure of the citizen, the artificial man made to fit the requirements of political rule. Nor does it depend on strong assumptions, such as that the worst monarchy is still better than no monarchy at all, or that to be a member of a community is to be committed to its deep consensus, even if one does not know it.
The basic mechanism of this fourth strategy is the defence of person and property, according to some property rule. A property rule does two things: 1) it assigns the power to make decisions about particular scarce resources to particular persons; 2) it assigns responsibility and liability for those decisions as well as for [many of] the actions or activities of the resources themselves to their owners. In a purely formal sense, there can be as many property rules as there are ways of distributing all the scarce resources among all persons. At one extreme, the property solution coincides with the unity or consensus solutions, when "all" scarce resources, including "all" persons, are assigned as the property and responsibility of one and the same authority, a single ruler acting on his own judgement, or a sovereign authority-which may be an individual, a senate, parliament, or any other collective body-that represents the whole of society.
However, the property solution is usually taken to refer to some highly distributed property rule, e.g. a rule assigning property to clans, families, or individual (or natural) persons. The idea of natural law, discussed in another chapter, rapidly gave rise to an individualistic theory of natural human rights, because individual human beings are the natural constituents of social life: conflicts can arise not just between groups, but also within groups, clans or families, between individuals. Moreover, clans, families and other more or less organised groups, are contingent on the willingness of individual members to remain within the group, on their loyalty, appreciation of the costs and benefits of membership, and so on. Consequently, the natural starting point for the study of social phenomena is to be found in the interactions and exchanges among individual human beings.
"Property" (in its distributed form, for example as natural private property) signifies reliance on the "rule of law" rather than on government or management. If each person or property holder is entitled to make his own decisions concerning his own property, there is no room for a single ruling authority, and no need for a fundamental consensus on almost everything. Instead one has to rely on mutual agreement on particular issues among those who are directly involved, and on the protection of property rights. In other words, one has to rely on natural motives, and especially on self-interest. Thus, in order to see any virtue in this solution, one must be convinced, that self-interest is more likely to lead to peaceful co-existence than to war, because over the long run, and in most circumstances people have more to gain from peace than from war, and more to lose from war than from peace. In other words, interaction with others tends to reward what the ancient Sophists (philosophers of the 5th century BC.) called "the social skills", especially respect for others (, a concept which links respect for others and their property to the sense of honour and shame) and justice (, which links respect for others and their property to the obligation to seek and keep agreements). Civilisation is the combination of these social skills with the technical skills (which derive especially from the ability to make and control fire, i.e. to increase the supply of useful energy).
Society, on this view, is in some sense a spontaneous order. It is spontaneous in that there is no need to postulate some a priori universal scheme of co-ordination and co-operation, whether in the form of a powerful system of political rule or of a deep consensus. The assumption is that every interaction is an opportunity for those involved to experiment with known or newly devised schemes of co-ordination or co-operation. People develop their social skills in the course of meeting the problems of daily life.
The essential distinction of the social skills, is that they accept, almost as a matter of course, the equality of the people involved in an interaction. People come to it as equals, hence have to reach an agreement, or else part again in the same condition as they came. The agreement does not reflect a deep consensus about fundamental values, but the common agreement that in the particular circumstances a particular arrangement or course of action is satisfactory for the purpose at hand. People or their property are not available as means for others, unless and to the extent the former give their consent.
The political implication of these views is, that political organisation is compatible with social existence, only to the extent that it is an organisation for mutual protection and for negotiated solutions to problems of disagreement. The concepts of "rule" (i.e. of a commanding monarch, aristocracy, or demos) does not enter into the scheme. People are seen as members or patrons of mutual protection agencies, not as their subjects. They are assumed to solve their problems by diplomatic negotiations or by appointing a common judge or arbitrator, without becoming subjects of either the diplomatic or the judicial agent.
The approach outlined here is central to the long-standing tradition of liberalism. Like the ascetic theory and some anarchistic forms of utopianism, it is radically opposed to the claim, that the natural condition of man is war, and that there will be no peace unless the few good people (the model-citizens) find a way to size and keep power. Unlike the ascetic theory and the utopian anarchists, liberalism holds the view that scarcity is nothing special: the social skills can deal with it in a peaceful manner, as is proven by the variety and flexibility of market arrangements.
Although the liberal tradition, originated in the West by the Sophists, was never completely lost, it was for a long time eclipsed by the influence of philosophical heavy-weights such as Plato and Aristotle, and their Christian followers. In Modern Times, John Locke (England, 17th century) gave an almost axiomatic presentation of the political tradition of liberalism in an endeavour to challenge the theory of the absolutist state. The basic ideas he appealed to were those of property and contract, which for him reflect the rational recognition of a very obvious fact: the separateness of persons. They are, for him, "natural rights" - and not, as in monarchical and aristocratic views, reflections of the wisdom or power of the ruler, or of the given division of political and social power. Nearly a century later, Adam Smith completed the resurrection of liberal thought with his explanations of how, in a regime based on the natural rights of property and contract, co-ordination and co-operation come about without central direction.
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A classic statement of the natural right of property of every person in his or her own body and work (or labour) is to be found in the famous fifth chapter of Locke's Second Treatise of Government:
Of Property
24. Whether we consider natural reason, which tells us that men, being once born, have a right to their preservation, and consequently to meat and drink and such other things as Nature affords for their subsistence, or "revelation," which gives us an account of those grants God made of the world to Adam, and to Noah and his sons, it is very clear that God, as King David says (Psalm 115. 16), "has given the earth to the children of men," given it to mankind in common. But, this being supposed, it seems to some a very great difficulty how any one should ever come to have a property in anything, I will not content myself to answer, that, if it be difficult to make out "property" upon a supposition that God gave the world to Adam and his posterity in common, it is impossible that any man but one universal monarch should have any "property" upon a supposition that God gave the world to Adam and his heirs in succession, exclusive of all the rest of his posterity; but I shall endeavour to show how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.
25. God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of their being.
And though all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of Nature, and nobody has originally a private dominion exclusive of the rest of mankind in any of them, as they are thus in their natural state, yet being given for the use of men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial, to any particular men. The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his- i.e., a part of him, that another can no longer have any right to it before it can do him any good for the support of his life.
26. Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person." This nobody has any right to but himself. The "labour" of his body and the "work" of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this "labour" being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.
27. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask, then, when did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right. And will any one say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the property, without which the common is of no use. And the taking of this or that part does not depend on the express consent of all the commoners. Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place, where I have a right to them in common with others, become my property without the assignation or consent of anybody. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.
28. By making an explicit consent of every commoner necessary to any one's appropriating to himself any part of what is given in common. Children or servants could not cut the meat which their father or master had provided for them in common without assigning to every one his peculiar part. Though the water running in the fountain be every one's, yet who can doubt but that in the pitcher is his only who drew it out? His labour hath taken it out of the hands of Nature where it was common, and belonged equally to all her children, and hath thereby appropriated it to himself.
29. Thus this law of reason makes the deer that Indian's who hath killed it; it is allowed to be his goods who hath bestowed his labour upon it, though, before, it was the common right of every one. And amongst those who are counted the civilised part of mankind, who have made and multiplied positive laws to determine property, this original law of Nature for the beginning of property, in what was before common, still takes place, and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what amber-gris any one takes up here is by the labour that removes it out of that common state Nature left it in, made his property who takes that pains about it. And even amongst us, the hare that any one is hunting is thought his who pursues her during the chase. For being a beast that is still looked upon as common, and no man's private possession, whoever has employed so much labour about any of that kind as to find and pursue her has thereby removed her from the state of Nature wherein she was common, and hath begun a property.
30. It will, perhaps, be objected to this, that if gathering the acorns or other fruits of the earth, etc., makes a right to them, then any one may engross as much as he will. To which I answer, Not so. The same law of Nature that does by this means give us property, does also bound that property too. "God has given us all things richly." Is the voice of reason confirmed by inspiration? But how far has He given it us- "to enjoy"? As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus considering the plenty of natural provisions there was a long time in the world, and the few spenders, and to how small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others, especially keeping within the bounds set by reason of what might serve for his use, there could be then little room for quarrels or contentions about property so established.
31. But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth- i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.
32. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.
33. God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed He meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational (and labour was to be his title to it); not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement as was already taken up needed not complain, ought not to meddle with what was already improved by another's labour; if he did it is plain he desired the benefit of another's pains, which he had no right to, and not the ground which God had given him, in common with others, to labour on, and whereof there was as good left as that already possessed, and more than he knew what to do with, or his industry could reach to.
34. It is true, in land that is common in England or any other country, where there are plenty of people under government who have money and commerce, no one can enclose or appropriate any part without the consent of all his fellow-commoners; because this is left common by compact- i.e., by the law of the land, which is not to be violated. And, though it be common in respect of some men, it is not so to all mankind, but is the joint propriety of this country, or this parish.
Besides, the remainder, after such enclosure, would not be as good to the rest of the commoners as the whole was, when they could all make use of the whole; whereas in the beginning and first peopling of the great common of the world it was quite otherwise. The law man was under was rather for appropriating. God commanded, and his wants forced him to labour. That was his property, which could not be taken from him wherever he had fixed it. And hence subduing or cultivating the earth and having dominion, we see, are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate. And the condition of human life, which requires labour and materials to work on, necessarily introduce private possessions.
35. The measure of property Nature well set, by the extent of men's labour and the conveniency of life. No man's labour could subdue or appropriate all, nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to entrench upon the right of another or acquire to himself a property to the prejudice of his neighbour, who would still have room for as good and as large a possession (after the other had taken out his) as before it was appropriated. Which measure did confine every man's possession to a very moderate proportion, and such as he might appropriate to himself without injury to anybody in the first ages of the world, when men were more in danger to be lost, by wandering from their company, in the then vast wilderness of the earth than to be straitened for want of room to plant in.
36. The same measure may be allowed still, without prejudice to anybody, full as the world seems. For, supposing a man or family, in the state they were at first, peopling of the world by the children of Adam or Noah, let him plant in some inland vacant places of America. We shall find that the possessions he could make himself, upon the measures we have given, would not be very large, nor, even to this day, prejudice the rest of mankind or give them reason to complain or think themselves injured by this man's encroachment, though the race of men have now spread themselves to all the corners of the world, and do infinitely exceed the small number was at the beginning. Nay, the extent of ground is of so little value without labour that I have heard it affirmed that in Spain itself a man may be permitted to plough, sow, and reap, without being disturbed, upon land he has no other title to, but only his making use of it. But, on the contrary, the inhabitants think themselves beholden to him who, by his industry on neglected, and consequently waste land, has increased the stock of corn, which they wanted. But be this as it will, which I lay no stress on, this I dare boldly affirm, that the same rule of propriety- viz., that every man should have as much as he could make use of, would hold still in the world, without straitening anybody, since there is land enough in the world to suffice double the inhabitants, had not the invention of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions and a right to them; which, how it has done, I shall by and by show more at large.
37. This is certain, that in the beginning, before the desire of having more than men needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man, or had agreed that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh or a whole heap of corn, though men had a right to appropriate by their labour, each one to himself, as much of the things of Nature as he could use, yet this could not be much, nor to the prejudice of others, where the same plenty was still left, to those who would use the same industry.
Before the appropriation of land, he who gathered as much of the wild fruit, killed, caught, or tamed as many of the beasts as he could- he that so employed his pains about any of the spontaneous products of Nature as any way to alter them from the state Nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them; but if they perished in his possession without their due use- if the fruits rotted or the venison putrefied before he could spend it, he offended against the common law of Nature, and was liable to be punished: he invaded his neighbour's share, for he had no right farther than his use called for any of them, and they might serve to afford him conveniencies of life.
38. The same measures governed the possession of land, too. Whatsoever he tilled and reaped, laid up and made use of before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed and make use of, the cattle and product was also his. But if either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering and laying up, this part of the earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other. Thus, at the beginning, Cain might take as much ground as he could till and make it his own land, and yet leave enough to Abel's sheep to feed on: a few acres would serve for both their possessions. But as families increased and industry enlarged their stocks, their possessions enlarged with the need of them; but yet it was commonly without any fixed property in the ground they made use of till they incorporated, settled themselves together, and built cities, and then, by consent, they came in time to set out the bounds of their distinct territories and agree on limits between them and their neighbours, and by laws within themselves settled the properties of those of the same society.
For we see that in that part of the world which was first inhabited, and therefore like to be best peopled, even as low down as Abraham's time, they wandered with their flocks and their herds, which was their substance, freely up and down- and this Abraham did in a country where he was a stranger; whence it is plain that, at least, a great part of the land lay in common, that the inhabitants valued it not, nor claimed property in any more than they made use of; but when there was not room enough in the same place for their herds to feed together, they, by consent, as Abraham and Lot did (Gen. xiii. 5), separated and enlarged their pasture where it best liked them. And for the same reason, Esau went from his father and his brother, and planted in Mount Seir (Gen. 36. 6).
39. And thus, without supposing any private dominion and property in Adam over all the world, exclusive of all other men, which can no way be proved, nor any one's property be made out from it, but supposing the world, given as it was to the children of men in common, we see how labour could make men distinct titles to several parcels of it for their private uses, wherein there could be no doubt of right, no room for quarrel.
40. Nor is it so strange as, perhaps, before consideration, it may appear, that the property of labour should be able to overbalance the community of land, for it is labour indeed that puts the difference of value on everything; and let any one consider what the difference is between an acre of land planted with tobacco or sugar, sown with wheat or barley, and an acre of the same land lying in common without any husbandry upon it, and he will find that the improvement of labour makes the far greater part of the value. I think it will be but a very modest computation to say, that of the products of the earth useful to the life of man, nine-tenths are the effects of labour. Nay, if we will rightly estimate things as they come to our use, and cast up the several expenses about them- what in them is purely owing to Nature and what to labour- we shall find that in most of them ninety-nine hundredths are wholly to be put on the account of labour.
41. There cannot be a clearer demonstration of anything than several nations of the Americans are of this, who are rich in land and poor in all the comforts of life; whom Nature, having furnished as liberally as any other people with the materials of plenty- i.e., a fruitful soil, apt to produce in abundance what might serve for food, raiment, and delight; yet, for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy, and a king of a large and fruitful territory there feeds, lodges, and is clad worse than a day labourer in England.
42. To make this a little clearer, let us but trace some of the ordinary provisions of life, through their several progresses, before they come to our use, and see how much they receive of their value from human industry. Bread, wine, and cloth are things of daily use and great plenty; yet notwithstanding acorns, water, and leaves, or skins must be our bread, drink and clothing, did not labour furnish us with these more useful commodities. For whatever bread is more worth than acorns, wine than water, and cloth or silk than leaves, skins or moss, that is wholly owing to labour and industry. The one of these being the food and raiment which unassisted Nature furnishes us with; the other provisions which our industry and pains prepare for us, which how much they exceed the other in value, when any one hath computed, he will then see how much labour makes the far greatest part of the value of things we enjoy in this world; and the ground which produces the materials is scarce to be reckoned in as any, or at most, but a very small part of it; so little, that even amongst us, land that is left wholly to nature, that hath no improvement of pasturage, tillage, or planting, is called, as indeed it is, waste; and we shall find the benefit of it amount to little more than nothing.
43. An acre of land that bears here twenty bushels of wheat, and another in America, which, with the same husbandry, would do the like, are, without doubt, of the same natural, intrinsic value. But yet the benefit mankind receives from one in a year is worth five pounds, and the other possibly not worth a penny; if all the profit an Indian received from it were to be valued and sold here, at least I may truly say, not one thousandth. It is labour, then, which puts the greatest part of value upon land, without which it would scarcely be worth anything; it is to that we owe the greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is more worth than the product of an acre of as good land which lies waste is all the effect of labour. For it is not barely the ploughman's pains, the reaper's and thresher's toil, and the baker's sweat, is to be counted into the bread we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and framed the timber employed about the plough, mill, oven, or any other utensils, which are a vast number, requisite to this corn, from its sowing to its being made bread, must all be charged on the account of labour, and received as an effect of that; Nature and the earth furnished only the almost worthless materials as in themselves. It would be a strange catalogue of things that industry provided and made use of about every loaf of bread before it came to our use if we could trace them; iron, wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dyeing-drugs, pitch, tar, masts, ropes, and all the materials made use of in the ship that brought any of the commodities made use of by any of the workmen, to any part of the work, all which it would be almost impossible, at least too long, to reckon up.
44. From all which it is evident, that though the things of Nature are given in common, man (by being master of himself, and proprietor of his own person, and the actions or labour of it) had still in himself the great foundation of property; and that which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniences of life, was perfectly his own, and did not belong in common to others.
45. Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it, upon what was common, which remained a long while, the far greater part, and is yet more than mankind makes use of Men at first, for the most part, contented themselves with what unassisted Nature offered to their necessities; and though afterwards, in some parts of the world, where the increase of people and stock, with the use of money, had made land scarce, and so of some value, the several communities settled the bounds of their distinct territories, and, by laws, within themselves, regulated the properties of the private men of their society, and so, by compact and agreement, settled the property which labour and industry began. And the leagues that have been made between several states and kingdoms, either expressly or tacitly disowning all claim and right to the land in the other's possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries; and so have, by positive agreement, settled a property amongst themselves, in distinct parts of the world; yet there are still great tracts of ground to be found, which the inhabitants thereof, not having joined with the rest of mankind in the consent of the use of their common money, lie waste, and are more than the people who dwell on it, do, or can make use of, and so still lie in common; though this can scarce happen amongst that part of mankind that have consented to the use of money.
46. The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the first commoners of the world look after- as it doth the Americans now- are generally things of short duration, such as- if they are not consumed by use- will decay and perish of themselves. Gold, silver, and diamonds are things that fancy or agreement hath put the value on, more than real use and the necessary support of life. Now of those good things which Nature hath provided in common, every one hath a right (as hath been said) to as much as he could use; and had a property in all he could effect with his labour; all that his industry could extend to, to alter from the state Nature had put it in, was his.
He that gathered a hundred bushels of acorns or apples had thereby a property in them; they were his goods as soon as gathered. He was only to look that he used them before they spoiled, else he took more than his share, and robbed others.
And, indeed, it was a foolish thing, as well as dishonest, to hoard up more than he could make use of. If he gave away a part to anybody else, so that it perished not uselessly in his possession, these he also made use of . And if he also bartered away plums that would have rotted in a week, for nuts that would last good for his eating a whole year, he did no injury; he wasted not the common stock; destroyed no part of the portion of goods that belonged to others, so long as nothing perished uselessly in his hands. Again, if he would give his nuts for a piece of metal, pleased with its colour, or exchange his sheep for shells, or wool for a sparkling pebble or a diamond, and keep those by him all his life, he invaded not the right of others; he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing of anything uselessly in it.
47. And thus came in the use of money; some lasting thing that men might keep without spoiling, and that, by mutual consent, men would take in exchange for the truly useful but perishable supports of life.
48. And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them. For supposing an island, separate from all possible commerce with the rest of the world, wherein there were but a hundred families, but there were sheep, horses, and cows, with other useful animals, wholesome fruits, and land enough for corn for a hundred thousand times as many, but nothing in the island, either because of its commonness or perishableness, fit to supply the place of money. What reason could any one have there to enlarge his possessions beyond the use of his family, and a plentiful supply to its consumption, either in what their own industry produced, or they could barter for like perishable, useful commodities with others? Where there is not something both lasting and scarce, and so valuable to be hoarded up, there men will not be apt to enlarge their possessions of land, were it never so rich, never so free for them to take. For I ask, what would a man value ten thousand or an hundred thousand acres of excellent land, ready cultivated and well stocked, too, with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the enclosing, and we should see him give up again to the wild common of Nature whatever was more than would supply the conveniences of life, to be had there for him and his family.
49. Thus, in the beginning, all the world was America, and more so than that is now; for no such thing as money was anywhere known. Find out something that hath the use and value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his possessions.
50. But, since gold and silver, being little useful to the life of man, in proportion to food, raiment, and carriage, has its value only from the consent of menwhereof labour yet makes in great part the measure- it is plain that the consent of men have agreed to a disproportionate and unequal possession of the earth- I mean out of the bounds of society and compact; for in governments the laws regulate it; they having, by consent, found out and agreed in a way how a man may, rightfully and without injury, possess more than he himself can make use of by receiving gold and silver, which may continue long in a man's possession without decaying for the overplus, and agreeing those metals should have a value.
51. And thus, I think, it is very easy to conceive, without any difficulty, how labour could at first begin a title of property in the common things of Nature, and how the spending it upon our uses bounded it; so that there could then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and conveniency went together. For as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of. This left no room for controversy about the title, nor for encroachment on the right of others. What portion a man carved to himself was easily seen; and it was useless, as well as dishonest, to carve himself too much, or take more than he needed.
The lawful and the legal
Familiar linguistic data indicate that the language of law and rights refers in a confusing way to a variety of very different ideas, and ultimately to a variety of very different situations, relationships and activities. To discover these differences is the object of the ancient science of etymology, the "study of the real or true state of things", i.e. the attempt to uncover the real differences in the things themselves, or in the significance of things for human needs and aspirations. Here we shall review the etymological evidence for the thesis that the lawful (what answers to law or justice) and the legal (what answers to the enacted laws) are not just distinct concepts, but belong to categorically different perspectives on the social aspect of human existence.
Perhaps the most confusing aspect of the language of lawyers is that they use the word 'law' not only in the sense in which it is virtually synonymous with 'justice', but also in the sense in which it refers to the so-called positive laws enacted by the political authorities and to the ways in which courts and administrative organs of the state interpret and apply them. My starting point will be the traditional view, that law as justice ("Recht", "Droit") seems to denote a horizontal relationship between equals, whereas law as the measure of legality ("wet", "Gesetz", "loi") seems to denote a vertical relationship within a hierarchy, between a superior law-giver or legislator and one or more inferiors or subjects. Let us, then, take a look at the concept of equality and its relation to the concept of justice.
Justice and equality
In some languages, for example in Dutch and German, the word for equality is one that in a literal translation would be rendered in English as 'likeness': 'gelijkheid', 'Gleichheit'. The etymological root is 'like' ('lijk', 'Leich') which means body, or physical shape. Thus, one's likes are those who are of similar shape, or those who have the same sort of body. There is no connection here with the Latin 'aequus' or 'aequalitas' or its derivatives such as 'égalité' or 'equality', which suggest not "likeness", "similarity", "sameness" or "being of the same sort", but rather "having the same measure". In a literal sense, the concept of aequalitas does not apply to human beings as such, but only to particular measures of shape, rank, ambition, ability or excellence: two persons cannot be equal as such, but they may be of equal height or equally good at doing something. Even if two persons were found to be equal in all respects, we should qualify their equality as an accidental and temporary condition. On the other hand, likeness or similarity is the outstanding characteristic of all human beings. In fact, it is only in their likeness or humanity that people are equal. However, this is an extremely abstract sort of equality. It adds nothing to the real or natural or objective likeness of all human beings, and it should not divert attention away from the fact that apart from their common humanity all people are different in many ways, and unequal with respect to many measures of shape, rank, ability or whatever.
The distinction between equality and likeness (similarity) is of the utmost importance for the logic of justice. For most people "justice" and "equality" are inseparable. But there is a world of difference between justice-as-aequalitas and justice-as-similitudo. It is often said, that the fundamental requirement of justice is equal treatment of all. Taken literally, this is a requirement no one can possibly meet, and no one will appreciate. There is no way in which one can treat oneself as one can treat others, and no occasion on which one can meet out the same treatment to all others. Distributive equality applies, if at all, only to a well-defined, closed group, when all its members stand in the same relationship to the same distributive agent (the parent and his or her children, the teacher and his or her pupils, the commanding officer and his troops, the hostess and her guests, and so on) - and even so it presupposes the inequality of the distributor with respect to those in his care. In complex situations distributive equality merely disregards the inequalities that, by way of specialisation and the division of labour and knowledge, give rise to all the advantages of co-operation and co-ordination.
It is precisely because "equal treatment" in complex situations is an absurd requirement, that Aristotle found it necessary to add the amendment, that distributive justice requires that equals be treated equally, but unequals unequally. The whole point of distributive justice would be lost, if it did not serve to perpetuate the right sorts of inequality. And the point of distributive justice was for Aristotle essentially political: to make sure that the best, and only the best, rule, and that they perpetuate the particular morality or way of life of the community. Who are the best? They are those who within their community are considered the most eminent representatives of the community's way of life: its traditional "elite". Aristotle knew very well, that to apply the concept of distributive justice the rulers should be able to measure virtue; he also knew, that to measure virtue the rulers should always and continually keep the ruled under close "moral investigation" to determine the degree of their "political correctness or defects". These consequences did not bother him in the least. The whole of his political thought was framed by his vision of the polis as a small, self-sufficient community ruled by a political elite.
None of these complications arise with the concept of commutative justice, which we can express as the requirement that one treat all others as what they are, namely one's likes, and not, say, as one would treat an animal, plant, or inanimate object. This requirement can of course be phrased in terms of equality, e.g. as the requirement that every one should accord all others equal respect, or that one should recognise in all one does that all others are equally human. But again nothing is added by using the language of equality rather than that of likeness or similarity, except the risk of confusing "equal justice" with "equal treatment". Equal justice is achieved by doing injustice to no one, i.e. by treating others as one's likes; equal treatment can only be achieved by not doing anything.
Liberty, freedom and right
With equality-as-similitudo we find an idea of justice that immediately brings into focus the idea of freedom. From an etymological point of view, 'freedom' is quite different from 'liberty'. The latter word is obviously derived from the Latin 'libertas', and refers to the status of a full member of some social unit (originally, a family or tribe). 'Libertas' is in fact the status of the liberi, i.e. the children, considered not as babies or young people, but as direct descendants. The same meaning attaches to the Greek 'eleutheria' (liberty), which is derived from a verb meaning 'to come'. Eleutheria, like libertas, is the status of "those who come after us". In Dutch this meaning is rendered literally by the word 'nakomeling' (one who comes after). Liberty points to a birthright, an inherited status, or to the status of one who has been adopted as a full member of the family or tribe. As a political term, 'liberty' suggest full membership in a political society, and points to notions such as nationality and citizenship. 'Freedom' on the other hand suggests a very different set of meanings.
Etymologists trace the origin of the word 'free' to an old Indian word 'priya' meaning: the self, or one's own, and by extension: what is part of, or related to, or like, oneself, or even: what one likes, or loves, or holds dear. Latin seems to have transformed 'priya' into 'privus' (one's own, what exists on its own or independently, free, separate, particular), 'privare' (to set free, to restore one's independence), and 'privatus' (one's own, personal, not belonging to the ruler or the state, private). The picture that emerges from these linguistic considerations is clearly focused on the person and his or her property, not on some conventional status within a well-defined social unit. Political society - which in Aristotle's view, is unified by a constitution (a "moral" convention), and not by the ties of kinship that define the family and the tribal village - may have forged a link between freedom and liberty, but this should not obscure the fundamental distinction. Logically speaking, freedom may well be a ground for claiming liberty under the constitution, but even if a constitution denies the status of liberty to a free person, it does not thereby automatically deprive him of his freedom. Conversely, if a constitutional convention grants liberty to a person, it does not automatically make him more free than he was before. The grant of liberty gives him full membership and status in the constituted political organisation, and nothing more. Freedom belongs to the natural human being, liberty to the holder of a position or status, a role player or a functionary in an organisation. In modern terms, we might say, that liberty belongs to the "public sphere" (i.e. to one's involvement with the business of the state), while freedom belongs to the "private sphere" where people meet one another as free natural persons with full responsibility for their own actions, and not as legal or fictional persons ("citizens") who are likely to explain and justify their actions in terms of legally or constitutionally conferred powers and privileges.
Thus, free, in the original sense of the word, is one who exists by his or her own efforts, one who is independently active, "his own man" or who lives "with a mind of her own". The proper context for the application of the word 'free' is the context of human interaction, where 'freedom' denotes leading one's own life, or making one's own decisions. This freedom is a correlation of likeness or equality-as-similitudo, but can hardly be reconciled with aequalitas. Likeness, as noted before, does not make one person the measure of another: it is not concerned with excellence in any respect. Also, to say that all people are alike does no violence to the fact that people are separate or distinct beings. Whether we are discussing the human person as a real physical entity (the living human body) or as a source of physical activity (movement, emotions, thought), we always run into the inescapable fact of the separateness of persons: my body is nobody else's, my actions or deeds, my feelings and thoughts, are as a matter of fact my own, and this is true not only for me and mine, but also for you and yours, her and hers, and so on and on. My existence is and remains forever separate from your existence. We may say that freedom is a reality (one's own being, an inescapable fact beyond the reach of choice) as well as an activity (one's own work, Dutch: werkelijkheid', German: Wirklichkeit). Real freedom (i.e. freedom as reality) is an inescapable fact of life: a person is free, and remains free until he dies; to destroy a person's real freedom one has to destroy the person. However, organic freedom (i.e. freedom as work) is contingent and vulnerable. All sorts of circumstances can prevent a person from doing his work, but only when the hindrance comes from within the proper sphere of freedom - that is to say: when it is the work of others - is it a violation of the condition of equality-as-likeness, i.e. of [commutative] justice. Such a violation of a person's freedom is traditionally and properly identified as an infringement of his right.
Organic freedom is indeed the substance of [subjective] right, as we shall see. Here we should note only that the word 'right' is nowadays understood mainly as referring to elements in a real or ideal legal system. Not surprisingly, it has acquired excessively normative overtones: a right is what the law says, or ought to say, a person, animal, plant, or whatever, should be given or allowed to have or do. It has lost virtually all descriptive content. Nevertheless, it is an indispensable word. In its original meaning it points to a very basic aspect of human life. Like the Dutch and the German 'Recht', the French 'droit' and the Italian 'diritto', 'right' reminds us of the Latin '[di]rectum', from '[di]regere', to make straight, or erect, and by extension of meaning: measure, regulate, rule, control, direct, manage, govern. The one who does the straightening, erecting, measuring, directing, ruling or governing, is the rex (usually but misleadingly translated as 'king'); that which is under his control is his rectum or regnum - it is his right. The word 'right', when shorn of the current overgrowth of legal and normative meanings, evokes the drama of the struggle against an hostile environment; it conjures up an image of force and violent activity, of using physical power, manipulating things and subjugating people. In this etymological sense, might gives right.
Ius and lex
We may well ask how this extremely physical concept of right-as-might can be connected with justice. As we use the words 'right', 'recht', 'droit', 'diritto' now, the original meaning has almost completely vanished. The focus has shifted to the concept corresponding to the Latin 'ius'. In its original meaning 'ius' (plural: 'iura') stood for "a bond" or "a connection", but with little or no physical connotations. A ius originates in solemn speech ('iurare', to swear, to speak in a manner that reveals commitment and obligation). As such a ius is a logical or rational, i.e. a symbolic, hence social or moral bond. When the speech is reciprocal, the result is an agreement or contract among equals, an association. Ius connotes commitment and obligation, but also equality in the sense of likeness. The ability to communicate by speech (rather than simple signals) is after all one of the most basic characteristics of membership in the global human community. By speaking to another, and waiting for his answer, by committing oneself towards him and waiting for him to commit himself, one treats him as one's like. It should be clear, that a ius implies, that the persons involved are mutually independent speakers. A ius, in short, stands in stark contrast to right-as-might. It creates no physical bond (or yoke) that serves to control or govern another as if he were an animal to be tamed and steered. Instead it creates a bond of an entirely different kind, a covenant that respects his likeness and leaves his freedom intact. The common idea of a bond links the notions of ius and right-as-might, but the different natures of the bonds, logical in the one case, physical in the other, are too obvious to ignore. Even if we disregard the aspect of physical force and violence in the practice of ruling (regnum), we should not overlook the difference between speech by which one obligates oneself (swearing, promising) and speech by which one obliges others (commanding). Most importantly, it is clear that ius can only exist between human beings, whereas right-as-might can exist between a person and anything that can be manipulated physically.
The Romans also used the word 'ius' in a sense in which it cannot be put in the plural. Ius, for them, was not just "a bond", but also "the social bond", the very existence of society, or its essential pattern. Conceptually, objective ius appears as the logical ground of specific iura, because these only express a commitment to act in accordance with objective ius. In Dutch, we refer to objective ius as "objectief recht", but also, and very appropriately, as "wet" (nowadays "[a] law", but originally: "what is known" or "what is common knowledge"). The English word 'law' in fact also referred originally to that which could be known by all, to the general order of things. It derives from 'laeg' (literally: the lay-out or order of things).
From an etymological point of view, 'right' and its continental equivalents are clearly unfortunate translations of 'ius'. We should also recognise that the original meaning of the Dutch 'wet' has been completely lost, at least in the discourse of lawyers and jurists. In English 'law' is used as often to refer to a legal system (or to its constituent elements, the laws promulgated or invoked by the law-makers) as to the principles of social order as such. On the other hand, we can easily see that the original meaning of 'right' and the new meanings of 'wet' and 'law' are very similar to the meaning of the Latin 'lex' (a law, plural: 'leges'). There is the same suggestion of a hierarchical or vertical relation between one who commands or compels and those who are commanded or compelled. A lex, for the Romans, was a decision of the highest public authorities (in particular the comitia) that binds their subjects. Lex stood in clear opposition to ius, the latter being a source of obligation either because of the nature of things, or because of the solemn or sworn agreement of those involved. The word 'lex' is traced back to 'dilectus', the raising of an army; its original meaning was: a public proclamation ordering the male population to do military service. It is related to the verb 'legere' (participle: 'lectum'), which means to collect, to pick up, even to steal. There is a clear reference here to the formation of a military organisation, and to giving orders, ruling, and, generally, to using and manipulating people in the pursuit of particular ends. A lex, then, denotes power over human beings, in the same way that regere or diregere denotes power over things in general.
Right, ius, and property
Perhaps the positivistic current in thinking about law harks back to the original idea of right-as-might, and to its application in the form of leges to human material. This would explain its fascination with the phenomena of power and its almost total neglect of questions of ius and iustitia. There is, however, a straightforward way to harmonise the original meanings of 'right' and 'ius'. We only have to restrict the meaning of 'right' to the government or management of one's own work. In the same way, we can harmonise the concepts of ius and lex, if we restrict the application of lex to a person's command over his own property. With these restrictions, the physical activity that is a characteristic of right-as-might as well as of lex remains intact, but it is right or lawful only if it stays within the bounds of ius or justice. From the naturalistic perspective of natural law, the bounds of justice are nothing else than the real and organic boundaries of every person as a physical and acting or working entity. Specifically, ius implies that action across these boundaries must be based on, or sanctioned by, the agreement of those who are materially affected by it. In this sense, organic freedom as defined earlier is the source of right if, and only if, in exercising it one does not fail to deal with others as one's likes.
The conception of property as the product of one's organic freedom within the bounds of justice is familiar to all students of political thought. It corresponds to John Locke's (1632-1704) assertion that the property of an object originally belongs to its maker. Thus, the original title of property is auctoritas, the quality of being an auctor. 'Auctoritas' derives from the verb 'augere', which means "to grow [something]", and also "to improve, augment, produce, make, create, or found". Auctoritas is the original ground of lawful possession: what the auctor produces is, in an obvious sense, his - it is by or of him. This makes him solely responsible, answerable and liable for it, for what one produces cannot answer for itself, and, having no independent status in law, cannot be held liable. In this sense, the auctor guarantees what he produces. While we are nowadays inclined to view authority as perhaps primarily a direct vertical political relationship between one person who wields authority and another who is subject to it, in its original sense authority exists between a person and his work. In that sense, it applies to an interpersonal relationship only indirectly, as when one person who uses the property of another should concede the latter's authority over it.
Having authority over something is often confused with having a say over it. E.g. in Dutch, 'authority' is often translated as 'gezag' or 'zeggenschap' (literally: say, but also command, jurisdiction), although these words properly apply only to a relationship between persons. Ironically, to say in Dutch or German that something belongs to a person one should say that it hears him or listens to him ('toebehoren', 'zugehören'), or that it obeys him. In these translations, the original idea of auctoritas is lost and replaced by the idea of a relationship between master and subject. In this respect, they remind us of the extravagant conception of property proposed by Aristotle in Politics, where he claims that, properly speaking, only articles of direct consumption (food, clothing, a bed) and slaves can be property. The characteristic of property, for Aristotle, is that it is immediately useful to its owner. Articles of consumption are property because they yield their utility immediately in the use we make of them; and slaves are property because they are means of action (or life) that are serviceable without requiring any work on the part of the master, "whose will they obey or anticipate". Aristotle also considered a slave as "being better off when under the rule of a master... [because] he participates in reason enough to apprehend, but not to possess it". Thus, Aristotle cunningly suggests that owning slaves rests on auctoritas: the master "improves" the slave, who thereby becomes "a part of the master, and wholly belongs to him". For the same reason that slaves are property, tools, i.e. "means of production", are not property in Aristotle's sense. They belong to the banausic sphere of manual and wage labour, which, in that philosopher's appreciation, is a sort of "limited slavery". In this manner, while paying lip-service to the naturalistic conception of property as resting on auctoritas, Aristotle assimilated owning property to the rule of man over man, and at one and the same time justified the regulation of the trades by legislation as well as the legal inviolability of the ownership of slaves. Clearly, whether due to the influence of Aristotle or not, a lot of modern legal thinking about property fits nicely into the Aristotelian pattern: apart from an individual's claims to what he needs for direct consumption, only the state's claims to obedience are considered to be "inviolable property"; all other claims, especially claims to the means of production, are subject to legislative regulation.
Law and society
Peace, friendship, freedom, and property
Several old sayings express the idea that law or ius is a principle or necessary condition of society: ubi societas, ibi ius ("where there is society, there is law", or "without law, no society"), fiat justitia ne pereat mundus ("let there be justice, so that the world will not perish"). It is unfortunate that Latin and also French and English have only the word 'society' to express this idea which is, in fact, the fundamental presupposition of natural law. This is unfortunate because, as we shall see below, the ambiguities of 'society' may easily mislead us to read into these old truths a completely mistaken idea of law. However, we can infer the proper interpretation if we recall the original idea of law as laeg, the lay-out or order of things. The opposite of laeg is orlaeg (the old English word for fate, i.e. inevitable destruction, and so for war; it survives in Dutch as 'oorlog'), the disintegration of order (Dutch: 'war', 'verwarring'). The modern English 'war', like the French 'guerre', derives from the Frankish 'werra' (disorder, confusion). Thus, society, or the condition of social existence, implies the absence of war and warlike actions that create disorder by destroying social bonds. In Latin, 'ius' stands in opposition to 'iniuria', the general term for typically warlike actions: insults, wilfully inflicted injuries, takings of and damages to property, kidnappings,.... Such acts destroy society, or the social bond (objective ius). That they do so is obvious when we consider a society of two persons. On an island with only two inhabitants, there is no society, if they engage in actions that are injurious to the other. In larger settings, such actions continue to produce their destructive effects, although these may not be so immediately obvious or threatening when they leave a large number of social bonds intact.
In the light of these considerations, we may say, that society is the absence of war, i.e. peace, in human relationships. Society is therefore a shared mode of existence without enmity, i.e. a condition of friendly interaction or friendship. Furthermore, the purpose of warlike action, the intention of an enemy, being the destruction or impairment of another's faculties of independent existence or work, war and enmity are direct threats to a person's freedom. It appears therefore, that society is the condition of peace, amity or freedom. The conceptual links among "peace", "friendship", and "freedom" should be obvious if we consider that we cannot have one of these things without any of the other two. In some languages, most conspicuously in Dutch and German, this link is suggested even by the form of the words: 'vrede', 'vriendschap', 'vrijheid', and 'Frieden', 'Freundschaft', and 'Freiheit'. Etymologists trace the origin of all these words to the old Indian word 'priya' (one's own) which I have discussed earlier as the root of 'freedom'. There is also nothing mysterious about this logical connection between the concept of property ("one's own", priya) and the concepts of peaceful, friendly and free relations. Friendly relations are peaceful relations, without iniuriae to person or property. Peace is a condition in which people can enjoy their property and independence, without being subjected to hostile treatment. And people are free to the extent that others treat them peacefully and friendly, respect them, their work and their property - in one word, their right (the physical domain of which they are the authors) - by dealing with them according to ius, i.e. by abstaining from iniuriae or warlike action. Thus, the security of each person and his or her property against predatory attack emerges here as the necessary condition or principle of society, its basic law or ius. We see, then, that the definition of law as "society itself", which lingers on even in some lawyers' textbooks, should not be taken as a mere rhetorical flourish. It reflects an immemorial pattern of thought that has been transmitted in many Indo-European languages, and even today forms the core of all liberal views on man and society.
Two concepts of society
From a natural law perspective, right is id quod iustum est, i.e. what is in accordance with objective ius, or law, or social existence. More specifically, a subjective right is action or activity that is in accordance with the requirements of society, the respect of the person and property of all people. It is in this precise sense that we should understand the ambiguous but popular definition of a right as what is socially acceptable. Unless we understand a right as what is acceptable to "society itself", we lose the connection with objective ius or law. This happens when we interpret the phrase 'socially acceptable' as "what is acceptable to public opinion, or the ruling opinion, the opinion of the rulers, or of some dominant or majority group". Such a subjectivist interpretation sacrifices the objectivity of law on the altar of arrogance ("Law is what is acceptable to us, we are [the source of] the law"). More importantly, it leads us back to a confusion of the lawful and the legal, and into a confusion of two radically distinct concepts of society. As noted already, the latter confusion is all the more likely for speakers of English (or Latin or French), who have only the word 'society' to express both concepts. Speakers of the Dutch language do not have this problem: they can easily distinguish between "een samenleving" (literally: a living-together or symbiosis) and "een maatschappij" (literally: a society or company).
A society-as-symbiosis (samenleving) is not some well-defined, organised group, but precisely that condition of lawful co-existence that we have been discussing all along. It is perhaps best described as the way of life of those who live as free persons among their likes. Thus, society-as-symbiosis is coextensive with objective ius or law. It is a horizontal society without hierarchical structure. It is also an inclusive society without a formal organisation based on certified membership. Anyone who accepts to live according to law is, by that fact alone, in society; anyone who does not is, by that fact alone, an outlaw, i.e one who is outside society. While people in society participate in society, they do not participate in the action of society, because society is not a source of purposive action. It is a general, a-centric society because there is no particular common goal and no central authority that controls or directs the activities of the rest. Interactions among those in society have the character of meeting, exchanging and parting, or of freely entering into, or exiting from, durable relationships on peaceful, friendly terms. Thus, society-as-symbiosis is a catallactic society. It is inappropriate and misleading to say, that one who is in society is a part of society, or that he is related to society as a part is to a whole. The symbiotic relations among persons are catallactic, not mereological. It is therefore nonsensical to hypostasise society-as-symbiosis, i.e. to ascribe some sort of legal or fictional personality to it. No person owns it, and no person is responsible or answerable for it.
A society-as-company (maatschappij, German: Gesellschaft) is a company of mates (Dutch: 'maten', literally: people who share their meat, or eat from the same table, or live from a single common source of income). The mates or members are to be distinguished very clearly from those who are not members and as such have no claim to a share of the income of the company. The Latin societas also is a company of socii (literally: followers, but also mates, companions, partners, assistants). 'Societas' and 'socius' are related to the verb 'sequi', to follow. Thus, the constituent relationship of a societas is that of following, or, when it is looked at from the other side, of leading. The leaders lead by imposing their lex, that is to say: by directing the actions of the followers by calling on, or compelling, the followers to do as they are told. A society-as-company is not at all like the general condition of peaceful, friendly and free co-existence. It makes sense to ascribe a fictional personality to it, on account of its hierarchical structure implied by leading and following, commanding and obeying, ruling and being ruled. A company does have leaders, maybe even owners, who can be held responsible and liable for the actions of the whole. In contrast with a society-as-symbiosis, it does have a formal condition of membership, and usually a number of more or less elaborate procedures for admitting new members, determining the status of a member within the organisation, confirming and terminating membership. It is, therefore, an exclusive, vertical society. It is also a mono-centric, particular society. Society-as-company is not a catallactic society, but a mereologically organised whole, with each member playing its prescribed part in the action of the whole. It is coextensive with the actions of its members only, at least in so far as these take part in the action of the company itself.
Two concepts of justice
'Ubi societas, ibi ius' takes on an entirely different meaning if we interpret 'societas' in the exclusive sense, as society-as-company, rather than in the inclusive sense, as society-as-symbiosis. The conditions of existence of an exclusive society or company are very different from those of an inclusive society. They are usually discussed under such headings as loyalty, fairness (or distributive justice) and solidarity: loyalty of the members to the company or its leaders, and of the leaders to the stated goals of the company; the members' perception and appreciation of the fairness of its government or management, and the solidarity of its leaders and members, whether in the strong sense of a willingness to assume responsibility for all the actions of the company or any of its members, or in the weaker sense of a willingness to help other members. None of these factors is to be taken for granted, of course, and it is not surprising that a great deal of effort is spent in trying to figure out how companies can be kept going. The object of this "science of management (or government)" is not essentially related to the study of law, even if the existence of a company is undermined by conflict, internal hostility, and other divisive factors that reduce the company's ability to function as a unit. Society-as-symbiosis, on the other hand, reflects people's ability to go their own way, individually or in the company of others, in freedom, peace and friendship. It is meaningless to ascribe to it any ability to function as a unit.
The idea of justice as "necessary for society" is therefore ambiguous in exactly the same way as the term 'society' itself. So is the idea of a right as "what is acceptable to society". However, within a particular or exclusive society, justice necessarily is a relativistic notion, whereas justice as the condition of existence of inclusive society is not. There are indeed many societies-companies of different sorts and sizes, with different organisational structures, conditions of membership and statutory purposes. Every particular exclusive society will have its own particular conditions of existence and success; and these serve as the standards for evaluating the particular justice of its principles of organisation and policy, its leges. On the other hand, society-as-symbiosis always and everywhere implies the fulfilment of the same condition, which is that people abstain from war-like action in their dealings with one another. However, because of their exclusive nature, many separate societies-companies can exist side by side and interact in more or less friendly ways, depending on whether they operate according to law or not. Note that an exclusive society's lawfulness depends in no way on whether it acts in accordance with its own criteria of justice. There is also no reason why a company should meet the requirements of law in order to be successful in its own pursuits. There have been, and are, many companies that are organised in clear defiance of the principles of law; as well as many companies that are constituted in a lawful manner, yet operate in a warlike fashion. Such organised crime evokes the need for organised defence, maybe even for what is usually called a political organisation. The latter sort of organisation, like any other sort of company, may be organised in a lawful or unlawful manner. However, let it be ever so lawful in all respects, let it be ever so vital for the protection of society-as-symbiosis against predators, its own organisational principle or lex is in no way a determinant of law. And this holds true, even when a company grows really big and powerful enough to defy law with impunity and on a large scale - when it sets itself up as a state. As long as humans remain what they are - separate beings of the same sort, capable of independent action or work - law remains what it is. Moreover, law, which belongs to general society, takes precedence over lex. For unlike general society, companies are mere means of action, and not indispensable to social existence. People can and do move into and out of companies, become members or associates of more than one company; companies can be merged or split up, reorganised, dissolved, and so on - without anyone inflicting any unlawful harm on anyone else or weakening the texture of general society. General society is not a means of action of anyone. It is the condition under which every person can lawfully pursue his own goals, individually or in the company of others. But except for the leaders or organisers, most members of a company are primarily tools to be used and managed in furthering the goals of the company or its leaders.
Main findings
Before drawing conclusions from the analysis presented here, I should recall the main findings. We found that etymology reveals a clear pattern underneath the confused and confusing language of law, rights and justice. On the one hand, "right" is not a moral or normative, but a physical notion. It refers to what is under the effective control of a person, what he masters by skill, force or violence, or manipulates at will. The notion of a lex applies when a large number of people are within the right of some other, who can set them to work by a single call or command. On the other hand, "justice" refers back to ius, which does indicate a social or moral bond, a commitment or agreement that originates in solemn speech. Ius can only exist between human persons, while right can exist between a person and anything (including another person) that can be manipulated or controlled by force or the threat of violence. The rational character of a ius presupposes the likeness of those things between which it exists, especially as regards the faculty of speech, the real and organic freedom which are given by their natural (biological, genetic) constitution, and therefore also their mutual independence. These presuppositions regarding the co-existence of physically bounded, mutually independent, rational beings correspond to the condition of objective ius or law, the basic order or lay-out of the world. This order is preserved as long as people exercise their organic freedom within the fixed boundaries of their physical being and the ever-changing boundaries constituted by their work - the two together defining the order of persons and their property. The exercise of power in this specific sense is the concrete manifestation of organic freedom; however, it reveals its lawful character as a subjective right only within the context of objective ius, when it is fitted into the general pattern of freedom among one's likes.
Figure 9
The logic of law
As described here the complexity of the concept of law results from the combination of an inward-looking relationship between a person and his means [of life, action and production, i.e. his property] and an outward-looking relationship between a person and his likes. We can map this complexity diagrammatically as shown in the figure. The diagram represents the basic form of law as it is determined by its subject-matter: the peaceful, friendly and free symbiosis of human beings.
We can use the relationships depicted in the diagram to formulate a pure "logic" of law, as well as the axioms for a formal theory of law. This logic of law is not concerned with norms or directives. It is neither some kind of deontic logic, nor some kind of logic of imperatives. It is instead a logic of just rights. If the formulation of such a logic obviously exceeds the scope of this paper, a few remarks are nevertheless in order. Being purely formal, the logic of law does not by itself force any interpretation of its basic terms ('person', 'means', 'is a means of') upon us. We can, if we wish, treat the diagram as an empty box and then fill it up in any way we like, using whatever "model" that strikes our fancy. However, under a naturalistic interpretation, one that uses objectively and publicly ascertainable criteria of identification, the logic clearly reveals the pattern of a natural law theory of human rights.
Assuming the human beings are persons (in the sense of the logic of law) and that they are by nature free and equal persons (in the sense discussed earlier: they are all equally human), the logic of law allows us to derive the following interesting theorems:
-No human person has a natural right to the use of what belongs to another, without the latter's consent.
-Every human person has a natural right to the use of what is strictly his own work, without the consent of any other.
In particular:
-Every human person has a natural right to the use of himself (i.e. his own body), without the consent of any other.
If we further make the naturalistic assumption, that only human beings are natural person-they are the only beings capable of work (auctoritas) and commitment through speech (ius)-these principles can be strengthened as follows:
-Every human person has a natural right to the use of what is strictly his own work, without the consent of any other person (whether the latter be human or not, natural or fictional).
In particular:
-Every human person has a natural right to the use of himself (i.e. his own body), without the consent of any other person (whether the latter be human or not, natural or fictional).
The latter principle, which I have elsewhere called the fundamental principle of law, captures the essential notion of freedom among one's likes. Any departure from it necessarily implies a restriction on a person's freedom and his reduction to the status of a tool in the hands of another. It appears that most people will readily accept the principle-even though some will want to make an exception to the naturalistic assumption to leave room for a personal god-if it is stated in abstract terms. However, this does not mean that they have a strong commitment to justice. A strong commitment to respect law implies a constant and persevering will to accept all the implications of the principle, and to look for ways to arrange one's interactions with others according to the requirements of law (ius). However, not many people appear to be willing to do that-they appear rather all too willing to make use of political methods to impose their will as law (lex) on others. Politics, it seems, trumps law; the legal holds sway over the lawful. It is therefore imperative that we take a closer look at the relationship between law and politics. That will be the subject of the next chapter. Before we turn to this relationship, which is the philosophical core of the problems of social integration which are dealt with in this course, we should say a few words about the role of lawyers. They are, after all, supposed to be concerned more than anybody else with the implications of justice.
Jurisprudence as the rational discipline of justice
The most interesting conclusion we can draw from the preceding analysis is, that "law" is not an essentially normative concept, no more than "right". Law is not a prescription telling us, how we ought to behave. Law is a natural fact, and as such law is natural law and nothing else. It describes the order of the world - the basic lay-out of human affairs. We do not need any teleological or theological or otherwise metaphysical "knowledge" in order to be able to judge whether some action or relationship is lawful or not. To make such a judgement, we should not focus on what people ought to do according to some "moral" or "legal code", but on the objective or agreed on boundaries among persons. The interesting questions are strictly factual: Who did what, when, how, and to whom? Who made or acquired this? How did she make or acquire it, alone or with the help of others? Did the others consent to help? Did they consent to help only if some conditions were granted? Were these conditions honoured? The common presupposition of all of these questions is, that every person is a finite, bounded being, separate from others not only in his being but also in his actions and work or auctoritas. Of course there may be all sorts of complications and uncertainties when we try to answer these questions with respect to particular cases or situations of an unfamiliar type. There is need for efficient and effective ways of dealing with these. This is precisely the area where the expertise of lawyers and jurists is so valuable. However, as it is clear what the questions are and aim at, there is a definite standard by which we can judge any proposed answers or methods for answering them. From this point of view, the objective of the practice of law is to determine and safeguard the law and the just rights of persons in situations where these may be unclear or contested. In this sense, the practice of law is a rational discipline of justice, not of legality.
For the layperson, who gives little thought to all but a few cases where determining rights is problematic, it may be difficult to grasp the point of much of what lawyers practise. However, just as one need not have the knowledge of an architect to know what a house is, one need not know the lawyer's business to know what is law or ius. The knowledge of law requires no more than an ability to grasp the idea of freedom among equals, the ability to recognise others as one's likes, i.e. at the same time, their likeness and their otherness. That knowledge consists in the recognition of the difference between what one is or does oneself and what one's likes are or do. This ability is, from a psychological, even biological, point of view, so vital, and at the same time, from a sociological point of view, so fundamental for the existence of social order, that we simply expect any person to possess it. Nemo ius ignorare censitur: nobody should be thought to ignore the law.
While this old maxim makes no sense whatsoever when we take ius or law either as the specialised skills of lawyers or as the output of legislation and regulation by governments, it makes eminent sense when we take law or [objective] ius as the condition that makes society possible: the recognition of the separateness and likeness of persons. When it is applied to legal systems - and it often is - the maxim merely expresses the arrogance of rulers who assume that everybody else carefully takes note of, and obeys, their commands, or else turns for advice to those who specialise in listening to the rulers (lawyers, not as experts in iustitia, but as experts in the current state of legislation).
This, then, is the fundamental choice before any student and practitioner of what is ambiguously known as 'law': whether to be a student and agent of justice, or an expert in dealing with promulgated rules and regulations.
Natural law and human action
Political and economic methods
Let us elaborate a little on the idea, that law (ius) refers to the objective boundaries separating one person from the next. Because human beings are agents-purposively working on their environment, either on their own or in co-operation with one another-it is inevitable that these boundaries will continually shift, but they will always be there, because the separateness of persons implies that their actions are also separable. No matter how fallible our procedures for finding out who did what, the principle that people and their actions are separate and separable is beyond doubt. Now, according to the conceptual system which we uncovered in the previous chapter, this means that actions are lawful and just, if they respect the real and organic boundaries separating people; otherwise they are unlawful and unjust.
The distinction between lawful and unlawful action is therefore an objective and even universal one - for human beings are finite beings everywhere and at all times. Every action must be either lawful or unlawful. No matter how complex or complicated an action, no matter how many people may be involved in its planning or execution, it is in principle (though not always in fact) possible to find out whether at one point or another it implied the crossing of a boundary between persons, and whether that crossing happened with their consent. This fact is the basis on which all judgements of the natural or objective lawfulness of actions are based.
By focusing on such boundary crossings, and on the conditions under which they happen, are initiated, facilitated, or impeded, we can distinguish between friendly and hostile exchanges, the fulfilling and the breaching of contractual obligations, lawful and unlawful uses of one's own or another's property, and so on. In other words, we can distinguish between voluntary associations and exchanges, on the one hand, and involuntary or coerced associations and exchanges on the other, and, among the latter, between the lawful use of force and deception for defensive purposes and the unlawful use of force and deception for offensive or aggressive purposes. We can also distinguish between accidental and malicious boundary crossings, and between a person who volunteers to make amends for unlawfully crossing the boundary of another's domain, and one who tries to hide his action in order to escape liability.
The same distinction between the lawful and the unlawful underlies many conceptualisations of actions, practices, or general patterns of interaction-e.g. the contrast, familiar to students of Montesquieu and other early sociological writers of the eighteenth and nineteenth century, between "commercial" and "military" society, or the contrast between "the ethics of amity" and "the ethics of enmity" (Herbert Spencer, 1820-1903). Consider the following quote from the German sociologist Franz Oppenheimer (1864-1943):
There are two fundamentally opposed methods whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires. These are work and robbery, one's own labour and the forcible appropriation of the labour of others... I propose in the following discussion to call one's own labour and the equivalent exchange of one's own labour for the labour of others the "economic method" for the satisfaction of needs, while the unrequited appropriation of the labour of others will be called the "political method".
One's own labour and exchange, what Oppenheimer calls 'the economic method' of acting, are lawful types of action, while the "political method"-robbery or the forcible appropriation of the labour of others, and also fraud-is clearly unlawful because it implies a crossing of a boundary between persons that was not consented to. The significance of this conceptualisation of human action is a consequence of the fact that, when human persons are taken as physical beings, the boundaries between them are real and objective. But then it is possible, in principle if not always in fact, to determine if, when, and where, one person's action crossed another's boundary, and to investigate the circumstances of that boundary crossing-either there was a boundary crossing, or there was not, and if there was, it was with the consent of the person whose boundary was crossed, or it was not. In other words, the conceptualisation of human action involves a clear and exhaustive dichotomy: action is either lawful or not, either "economic" or "political".
It is easier to understand and appreciate the choice of 'economic method' as a term for lawful action than it is to understand why Oppenheimer and many before and after him preferred to call unlawful action 'political'. The literal meaning of 'economics'-from the Greek , house, and , rule, custom-is often said to be: rule of an household, or the art of ruling an household. However, this is already a highly developed concept. The word means house, dwelling, residence, the place where one lives, but also home, family, and primarily to what is one's own. The word , on the other hand, derives from , to take in hand, also: to take into possession, to occupy, hence to manipulate, to move, to govern (cf. the Latin regere). The root meaning of 'economics' is, then, the management or governance of one's property. This is essentially Oppenheimer's "economic method". Why he chose to contrast this with the "political" method requires some explanation. We shall return to this question below. For the moment, we shall simply accept the dichotomy between the economic and the political at face value.
Natural law and politics
Obviously, the dichotomy leaves us with an annoying problem: from the perspective of natural law, the political method, is simply unlawful behaviour. Yet most people seem to have come to believe that politics (as the application of the political method) is not only a legitimate business, but even the source of law and order. This paradox explains the need people have always felt for a justification of political power (at least in so far as it makes use of the "political method"). However, the preceding analysis should also alert us to an important logical fact: As long we accept natural law, we can only classify the political method as paradigmatically unlawful; it follows that, in order to justify uses of the political method, we have to deny natural law, and especially the significance of the separateness of persons, which is the fact that constitutes it. This denial must be the philosophical core of any serious argument that purports to justify political rule: its relation to the facts of life that constitute natural law.
Logically speaking, the denial of natural law amounts to the assertion, that what appears to be two separate persons is not really so-either it is only one person, the appearance of two-ness being some sort of illusion, or the one person is not separate from the other, but a part of the latter, or there is some kind of whole, not perceptible by the senses, of which the two are parts, or, perhaps, members. Under any of these hypotheses, natural law is denied as far as its substance is concerned-the real and organic freedom of natural persons among their likes-but it need not be denied as to its form.
To illustrate this, we only have to look at Aristotle's infamous justification of slavery (in Book I of Politics). Because-that's Aristotle's argument-some people are not complete, but defective human beings, they need some other person if they are to be able to participate in the characteristic activity of man: intellectual and moral life. By taking such a person into his possession, and by managing his life for him, one makes him into a slave, i.e. into one's own property-as Aristotle puts it: the slave is made into a part of the person of the master, "a living but separated part of his bodily frame", and therefore "wholly belongs to him". Thus, even if the master uses the slave only as "a living tool", he improves the latter's life by putting it under the guidance of his reason and moral sense-in this sense, the humanity of the slave is the work of the master, who can therefore claim to have title to the slave. Forgetting that we are here dealing with the relations between two separate persons, the form of argument is the same as the natural law argument justifying a property title to one's own work: the master's work extends the boundary of his person, so that it now includes the thing (which merely happens to be another human being). The form of law is preserved, but the substance is gone. Slavery is made to look lawful, by the simple expedient of assuming that unequal abilities signify a difference of natural kind.
Similarly, when Aristotle explains political rule, he does so by assuming that a political community-a constitutional, moral community, not a community based on being of the same blood, nor an economic organisation such as the household-is still a sort of whole, in fact a perfect whole that lacks nothing, of which individual families are the parts, whereas individuals are parts of the families. And this is supposed to make it self-evident, that political rule is a natural relationship, because "in all things which form a composite whole and which are made up of parts, whether continuous or discrete, a distinction between the ruling and the subject element comes to light". Furthermore, "the state is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part; for example, if the whole body be destroyed, there will be no foot or hand... The proof that the state is a creation of nature and prior to the individual is that the individual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the whole."
This singular inability to think of human relationships in other terms than 'parts' and 'wholes', is not a peculiarity of Aristotle. We can find in almost all of the famous political authors-Plato, Thomas Aquinas, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Karl Marx, and their many followers and admirers. But, as we have seen, this should not surprise us: either one denies the separateness of human persons, i.e. the facts of real and organic freedom among rational beings of the same sort; or one accepts that political rule is necessarily unlawful.
The language of 'parts' and 'wholes' is so pervasive, so deeply embedded in our habits of speech, that we can hardly avoid it. In discussions of human relations, words such as 'party', 'participate', 'to take part in', 'membership', and the like, will pop up, even if we studiously avoid saying that an individual is a part of some whole. Of course, the problem is not in the language itself, but in the sort of images it is likely to evoke, and, especially, in the logical connections and priorities it suggests. The problem with the 'parts of a whole' imagery arises when it is assumed, that the so-called parts are essentially parts of one particular whole-in other words, that they are useless and have no raison d'ętre outside that particular whole-in the same way that a hand is essentially a part of the living body: it is useless when it is cut off. In Aristotelian terms: "the hand wholly belongs to the body". It does not follow, however, that every part is a part of something else in the way a hand is a part of the human body. We can, and do, talk about something being a part of another, without assuming, that the other thing is 'a whole', that the first thing could not be a part of something entirely different, or that it would not be what it is if it were not part of this particular whole. A child, playing with wooden blocks, can bring these together in any number of combinations, making them parts now of a "house", then of a "train", or a "mountain", or whatever-but the child is playing with blocks, not with "parts of a house". A star may be said to be a part of a particular constellation, but the constellation is only made into "a whole" by mapping the stars on a two dimensional plane and then connecting some of the points that represent stars with lines, so that a closed figure results. In this case, the parts exist, but the "whole" of which they supposedly are a part is merely an imaginary construct. When two people form an association because they happen to realise that they can further their own interest better by doing some things together, we may say that they are parts of the association, but in no sense is the association "prior" to, or "more important" than, the parts-in fact, it is merely a tool of its "parts".
A man may be "a part of the market", but there is a market because people buy and sell; it is not the case that people buy and sell because they are a part of "the market". Also, a person may be "a part of society", but there is society because people interact in certain ways; it is not the case that people act in such ways because of their being a part of "society". To suggest, that any of these parts "wholly belongs to the whole" of which it is said to be a part, is to talk gibberish. Nevertheless, this is what the political thinkers do say, in one form or another, about man and society, or man and state-but almost none of them would even dream of saying, that man wholly belongs to the market. Why not? Because the market is not a true whole, in their understanding of the term: what Aristotle said about composite wholes-that in them "a distinction between the ruling and the subject element comes to light"-does not apply to the market. Apparently, true wholes are hierarchically organised wholes. So, man is essentially a part of a hierarchical organisation-an organisation man?
Economics or politics: which is the master science?
It appears, then, that our discussion of the nature of law, and the dichotomisation of human actions implied by the notion of natural law, raises questions that cannot be lightly dismissed. At the very least it presents a challenge to the basic logic of political thought as it has developed in the West-an alternative way of thinking about man and society. Long before Oppenheimer, other writers had stressed the importance of the dichotomy of the economic and the political for the methodology of the sciences of society. Shortly before his death in 1850, Frédéric Bastiat had insisted, that
A science of economics must be developed before a science of politics can be logically formulated. Essentially, economics is the science of determining under which conditions the interests of human beings are harmonious or antagonistic. This must be known before a science of politics can be formulated to determine the proper functions of government.
Immediately following the development of a science of economics, and at the very beginning of the formulation of a science of politics, this all-important question must be answered: What is legislation? What ought it to be? What is its scope; its limits? Logically, at what point do the just powers of the legislator stop? I do not hesitate to answer: Legislation is the organisation of the common force to act as an obstacle to injustice. In short, legislation is justice.
This is the essence of what may be called the liberal approach to social science: economics is the more basic science, because it studies the conditions under which human interaction harmonises the interests of different people, and the conditions under which it leads to conflict. This is the study of natural law or natural order of human society, and of the ways in which human actions can respect this law (be just), or fail to do so (be unjust). Political science is seen as an applied science, the purpose of which is to arrange means and methods, and to provide incentives, for keeping human actions as much as possible within the boundaries of natural law. This approach to social science goes back to historical, naturalistic and universalist views associated with the teachings of the sophists, the cosmopolitan movement of scholars, teachers and intellectuals-most of them immigrants from different parts of the Greek speaking world-that made Athens the cultural and intellectual capital of Hellas in the fifth century BC. Their basic attitude was that by nature human beings are all alike, and that their cultural differences were therefore merely "conventional"-i.e. due to habits, local agreements, accidents of history and particular circumstances. Consequently, they did not regard any culture as an ultimate standard, but rather as a set of techniques for dealing with the problems of human existence and co-existence. The ultimate standard for them was nature, i.e. that part of the human condition, that could not be changed. Culture, on the other hand, could change, as a result of experimentation, inventiveness, and the spread of new ideas and technologies, in the course of the incessant attempts of human beings to cope with the slings and arrows of life. The great social imperative, therefore, was to safeguard the integrity and the open-ended character of the human experiment by making sure that none of the possibilities and opportunities provided by natural law are foreclosed-or, to put this in other words: by making sure that mere conventions do not become straightjackets. This imperative translates immediately into a rule concerning the use of force and violence in human relations. The use of force and violence is to be restricted to the enforcement of respect natural law, and not to be extended to the enforcement of conventions on those who are not, or no longer, convinced of their usefulness. In short, the rules of natural justice are basically procedural, and not intended to secure a particular outcome-just as the rules of a game define a procedure for playing the game, without specifying what the result or final score should be. On the other hand, technological rules, which a manager or engineer uses to secure a particular outcome, and which must necessarily change if either the circumstances or the end aimed at change, must have a conventional character.
In the fourth century BC the tradition of naturalism was submerged in the upsurge of idealistic, metaphysical, ahistorical and particularist thought of conservative philosophers. These-and most notably Plato and his pupil Aristotle-rejected the idea that cultural values can only be tested in the practice of life as open-ended experiment. They defended the view that nature is not something that is discovered by the senses and the practical reason of human beings as they go about their daily business of life and work. They made nature into a metaphysical category, that could only be discovered by those who by birth and training have the intellectual capacity to know the truth. Thus, the value of a culture is not a matter of changing, never conclusive experience, but of scientific proof. One consequence of this metaphysical view is that nature is made into an idea or intellectual form, an invisible, but intelligible, rather than a physical and experiential, reality. This made it possible to construe nature as an ideal or perfect form of experiential things. In other words, it became possible to present cultural values as "natural", not in the sense that cultural activities (especially technologies) are the natural response of human beings to the problems of life, but in the sense that the natures, i.e. the essences or ideas, of the perfect man and the perfect society imply a perfection of culture. Thus, the evaluation of human practices and cultures became a matter of knowing the idea of culture-i.e. the perfection of culture. This knowledge, which by its very nature, is reserved to those who have privileged access to the metaphysical aspect of the world, must then be implemented, so as to remake the physical world as much as possible in the image of the perfection which only the few could grasp. The first social imperative, on this view, is to safeguard the integrity of this exalted knowledge, and to constantly affirm the commitment to the construction of the ideal community that corresponds to the true ideas of man and society. This imperative translates into the requirement that force and power-i.e. the capacity to control and manipulate physical things, including men-should be placed in the hands of those who possess this exceptional knowledge or "science" of the perfection of man and society-hence Plato's ideal of a political community ruled by a philosopher-king, with absolute powers. In short, political knowledge is the master science, and politics is the activity that should rule and dominate all others. Most importantly, the political use of force is to be judged, not according to its contribution to the defence of the natural order (in the naturalistic sense of the word 'natural'), but according to its effectiveness in ensuring the conformity of the physical world to the metaphysical idea.
It is true that Aristotle looked for a synthesis, or at least a compromise, of the Platonic and the sophists' views on human society. However, the basic tendency of his thought was Platonic. Far from repudiating Plato's metaphysical essences, he merely denied his master's thesis that these essences exist on their own in a metaphysical realm, separate from the physical world. Instead, he postulated that they were present in the things that make up the physical world, and somehow serve at once as the causes of natural change, and as the goals which the natural processes of growth and development were spontaneously seeking to reach. This teleology-the doctrine of the causal efficacy of metaphysical ends-allowed him to substitute a more optimistic worldview for the fundamental pessimism of his master. He did not have to assert that the physical world is merely a sort of imperfect shadow or corruption of the real metaphysical essences. Instead, he could say, that a natural tendency towards perfection inheres in all things.
The tendencies that supposedly propel things towards their final state of perfection could be described as natural laws, but this terminology does not bring Aristotle any closer to the naturalistic theory of natural law. On the latter theory, natural law is the natural order within which human beings act, i.e. attempt to solve problems as these occur, and as far as the means at their disposal allow. However, the fact that one tries to, or indeed does, solve a problem does not in itself justify any and all attempts to do so-e.g. criminal solutions are not justified, and neither are well-intentioned solutions that are forcibly imposed by some on others. Thus, on the naturalistic view, the end does not justify the means. But that the end justifies the means is the essence of the Aristotelian teleology. In particular, what is done for the metaphysical essence called 'the common good' is justified, regardless of the means employed-as long as it is done in such a way that burdens and benefits are fairly distributed, i.e. taking into account the "merit" or "worth" of all who are affected by the action.
The implication of this Aristotelian doctrine is, that all questions relating to the determination of the common good, or the merit or worth of people, must be supposed to have been settled in advance. Since this is hardly ever the case, the doctrine implies that there must be some final authority whose judgements on these matters override all other judgements. In this way, some sort of agreement on who shall rule, i.e. on what qualifies a person for ruling others, is the fundamental constitution of a political community. Once such a constitution is in place, no appeal against the laws sanctioned by political authority is possible. The upshot of the theory is, that, as the political uses of force are only limited by the end of political activity itself, those in charge of managing the community so as to achieve that end must be free to enforce their decisions.
Plato and Aristotle founded well-organised institutions where their writings were extensively studied and copied, and preserved for posterity. Of the earlier sophists only scattered fragments and a few more extensive texts have come to us. Indeed, for a long time, they were mainly known through the writings of their opponents. Plato portrayed them as mainly as despicable, dishonest characters-especially if they were not born in Athens-and Aristotle distorted their views in order to fit them into his metaphysical teleological philosophy. Thus the liberal approach to social science was virtually erased from the intellectual traditions of the West. Not until the eighteenth century did it begin to re-emerge, but even then the frame work of political thought remained well within the matrix designed by Plato and Aristotle, and this remains true today. Eric Havelock gave the following description of this matrix:
At the level of practical application they concentrated almost exclusive attention on the mechanisms of power; at the theoretical level they devoted the energies of their joint genius to establishing a valid source, philosophically respectable, for the uses of political power. They found this either in the eternal ideas outside time and space, or in the equally eternal forms inherent in the political process itself. The thinking of both, despite their differences, is committed to the proposition that society is a fixed quantity, or reaches towards a fixed quantity, or should do so. Both share a parallel conception of the human soul as itself a little cosmos, a closed system or an essence, or the final form of a natural process which becomes a fixed quantity, if it does not begin as such. These two determinate systems, the ideal closed society, and the completely organized soul, are then fitted together into an air-tight system of politics and morals. The act of organization as applied either to society or to the soul is not spontaneous nor is the system automatic. It requires discipline in the person and in the state to hold both the soul and the state in a condition of harmony and perfection. Hence the problem of building an intelligent authority over the whole had automatic priority in their thinking as against the disposition and behaviour and autonomy of the separate parts.
If the later thinkers had to deal with life in much larger settings than the small Greek polis, the city-state, most of them invariably approached the problems of human society with the same assumption that society could only exist as an intelligently devised organisation-a mechanism of power geared to achieve some particular final state or goal. If in Modern Times the appeal to metaphysically vindicated fixed, but in practice contested, political goals lost favour, it was replaced by an even more absolutist conception of the political power mechanism. For this was no longer s limited by the a priori given end that justified it use. Instead it had to be capable of achieving whatever end that was set out for it, by whoever was supposed to be its owner-whether this was the King, or the People. Instead of a tool designed to achieve an objective, eternally fixed end, the mechanism of power or the apparatus of rule became a tool with no inherent finality, designed to implement the will of the ruler. In other words, the justification of the use of political power shifted from a consideration of the goal to be sought to a consideration of the authority that set the goals. Thus, within the general frame work of the Platonic-Aristotelian matrix, the retreat from metaphysics led to a vacuous formalism: first, to What pleases God has the force of law, then to What pleases the king, has the force of law, and ultimately to What pleases the majority of the people has the force of law. This formalism dispensed with any teleological assumptions, but it retained the classics' obsession with the mechanism of power. In fact, if the doctrine of royal legislative power looked upon the apparatus of rule as a tool to give effect to a human will, under the democratic theories that succeeded it, even the will that supposedly animated the state was nothing but the outcome of a mechanical procedure-counting votes. The mechanism of power now included a mechanism for setting the goals for the attainment of which it was the means. Thus, in theory at least, politics became a de-personalised, impersonal affair-a procedure. But this did not bring it any closer to the procedural justice that is so dear to the advocates of natural law (in the naturalistic sense) of the liberal tradition. It remained committed to fixing the condition of the society it claimed to control, even if it could now be forced by the application of its own goal-setting procedures to pursue one goal one moment, and an entirely different one the next.
Political thought, then, is still wedded to the legacy of Plato and Aristotle, even if its abandonment of an ideal goal, outside the reach of human arbitrariness, must be anathema to these Greek philosophers. It is still paradigmatically concerned with devising a mechanism of power that is capable of moving society from its present, imperfect or unwanted, to its future, perfected or willed condition. Inevitably, society is conceptualised as what falls within the reach of the mechanism-as what is ruled by it. Equally inevitable is the fact, that the fundamental dichotomy of politics, and of politically organised society, is the distinction between the legal and the illegal-between what does and what does not conform to the rules that define the operations of the mechanism, or to the rules it produces for the governance of society. Consequently, it cannot easily comprehend the distinction between the lawful and the legal, much less the idea that the legal uses of force or coercion may be unlawful. In short, it could not comprehend the liberal or naturalistic approach, which not only did not specify an end-state for society, but also failed to devise a mechanism of power for attaining any end-state whatsoever. To one who is accustomed to think of society as that which is called into existence by the operations of organised power, it must have seemed, either that the liberals had no conception of society at all, or else that they were counting on a mysterious, spontaneous force that produced a legal order without the help of an engine of legislation.
It can be seen, that the liberal approach implied a revolution in thought, precisely because it conceptualised society as a network of co-operation among individuals that need not have any one particular goal for "society as whole" in common. However, even many of the writers now identified as liberals or precursors of liberalism found it difficult to get away from the Greek conceptions. This is evident in John Locke's thesis, that the state exists for the sake of the defence of natural rights and natural law-a thesis that, in the manner of the classics, presupposed, that natural law and natural rights are "gifts from God", and not raw facts of nature. For in Locke, and indeed in most later liberal writers, natural law was conceived to be, not the natural order of human co-existence per se, but a lex naturalis-a command or prescription that somehow ought to be obeyed, because it s supposedly "given" by an external, supra-human authority, "God" or "Nature", or some sort of objective "Reason". But then the question is no longer the practical one of determining how any two or more persons can live together as the free and equal beings they in fact are, but the theoretical one of interpreting this supposed lex naturalis. Natural law in this legal sense, and the natural rights it supposedly "grants" to human beings, are metaphysical constructs in the Platonic-Aristotelian vein. As such they continued to provide the pretext and justification for precisely the sort of mechanism of power that had always fascinated the political thinkers: some authority must interpret this metaphysical dictate, and make sure that it is followed. It should not come as a surprise, that in the nineteenth century, an explicitly metaphysical form of liberalism was propagated, which made the state, or even, as in Hegel, some sort of philosopher-king, the supreme guardian of law and human rights.
Nevertheless, in conjunction with the rise of the science of "political economy", i.e. the study of markets, the naturalistic impulse of liberalism, resurrected in the eighteenth century by David Hume, could expand its reach. The economists investigated what happens when property rights and contracts are secure, and what happens when they are not. And they rapidly came to the conclusion, that when these institution of natural law are respected, i.e. when violence and fraud and other warlike actions are absent, the diverse human interests are indeed harmonised by trade and industry. From their naturalistic perspective it did not matter whether the violence or fraud was committed legally or illegally, by political authority or by some other agent, with or without the sanction of some religious or philosophical doctrine. Nor did it matter, that peaceful interaction, within the frame work of natural law, was legally permitted or prohibited. In either case, the consequences flowed from the nature of the actions, not from their conventional or metaphysical labels. The economists did not dispute, of course, that some people might gain from unlawful action (theft, robbery, fraud, coercion), nor that unlawful action organised by the state might be profitable to some or even many, and perhaps, occasionally, to all-for under conditions of uncertainty it just might be that the state makes a better guess than some of its subjects; in the same way a person may actually help a farmer by unlawfully killing a cow that is the carrier of a contagious disease that might otherwise have wiped out his entire herd. What the economists demonstrated was, that there can be no universally valid a priori or ex ante case for unlawful, i.e. violent or fraudulent, action, even if on occasion there may be an ex post justification. Thus, one who committed an unlawful action may be exonerated, even praised and rewarded, when his action was intended, and turned out, to be beneficial for his "victim". With respect to the state: even if we assume that the state always and invariable acts with the purest intentions, we cannot conclude, that its disregard for natural law will have any other consequences than another's disregard for the natural order of human affairs. At best, we can conclude that there are bound to be occasions when those who were unlawfully (though legally) coerced to do something benefit from doing it.
As far as rules of action are concerned-and these are necessarily ex ante-the conclusion is that they should counsel respect for, and prohibit acting in disregard of, natural law, irrespective of whether the rules are intended for private persons, corporations or the state. For while there may be occasions where unlawful action by the state may be exonerated ex post, it is inconceivable that there will not be many occasions where exoneration is out of the question-just as it inconceivable that in these cases the state will, or can be made to, pay sufficient damages to its victims. However, the very idea of the state is, that it is above natural law, and can use violence (and perhaps also fraud) to coerce people to do its bidding, i.e. to obey its laws. Consequently, the very idea of the state was threatened by the liberal emphasis on the difference between lawful and unlawful, violent and peaceful, action-between the "economic" and the "political" methods of action. For that is a distinction that lies within the grasp of everybody, and so does not require a special class of interpreters. Moreover, it is a direct consequence of the distinction between one natural person and another. But to make this the fundamental distinction is to deny that any fundamental importance attaches to the very form of the political relation, namely, which is that one person is a part of another, or that all persons are part of some organisation in which some are "leading" parts .
The state as the organisation of the political method
The reason why Oppenheimer used the word 'political', rather than a more revealing word such as 'criminal', was that he was particularly interested in a sociological and historical analysis of the state. In his view the state, the most eminent political organisation of modern times, is by far the most important practitioner of the method of "unrequited appropriation of the labour of others". One need only consider the essential role of taxation, which even jurists define as an unrequited taking of private property, to see Oppenheimer's point. The power to tax is virtually co-extensive with the power to rule, which is the power to enforce obedience on those who do not voluntarily consent to obey. The state takes in many different guises, for example by setting up monopolies of all kinds, or by criminalising and regulating lawful actions. What is a state? asked Oppenheimer; and he answered:
The State, completely in its genesis, essentially and almost completely during the first stages of its existence, is a social institution, forced by a victorious group of men on a defeated group, with the sole purpose of regulating the dominion of the victorious group over the vanquished, and securing itself against revolt from within and attacks from abroad. This dominion had no other purpose than the economic exploitation of the vanquished by the victors....
The state is an organisation of the political method. No state can therefore come into being until the economic method has created a definite number of objects for the satisfaction of needs, which objects can be taken away or appropriated by warlike robbery.
Starting from the universal and uncontested fact that human beings have "needs" and therefore have to undertake action to satisfy these needs, Oppenheimer implicitly uses the naturalistic concept of natural law (based on the separateness of persons, their real and organic freedom) to dichotomise human actions as either lawful or unlawful, or in his own terminology: as either economic or political. Applying this dichotomy to the state, Oppenheimer finds that the state falls squarely within the domain of the political method.
Looking into the early history of the states (up to 1648), we find that the establishment of the monopoly of the means of violence was itself a violent and destructive process, often accompanied by long periods of economic and cultural decline. States did not spring from the soil on a sweet day in May; they reflect a history of bloodshed, conquest, confiscation, dynastic wars, conflict and persecution, rebellions and revolutionary upheavals, conspiracies, strategic coalitions, betrayal. They bought their "national integration" at a high price in terms of human suffering.
From the perspective of history it is no exaggeration to say, that states were organised as gigantic war-machines. In the course of time more and more economic, social and cultural resources were forcibly put or drawn into the service of the state. The state has been defined as a territorially organised monopoly of the means of force and violence. It is however important to note, that this monopoly was actually used to control not just violence, but quite a number of peaceful activities as well: trade and commerce, manufacturing and industry, finance and banking, religion and education, adjudication and mediation. As a territorially organised monopoly of the means of violence, the state might have been nothing more than a means to control or minimise violence (the ideal of the Rechtsstaat); in fact it was an attempt to monopolise the use of violence in such a way that only the rulers and their political allies could effectively pursue their ends by means of systematic violence. Their primary ends were to maintain or aggrandise their power within their territories, or to extend it to new territories. The key to these political ends was control over the population and its wealth, and specifically the ability to tax and regulate human activity so as to make it more useful to the rulers and their policies. Thus, the borders of the state became for most purposes of ordinary human activity effective barriers that could not be crossed without the permission of the political authorities on either sides.
Monopolistic and competitive supply of violence
Oppenheimer's characterisation of the state does not imply, that every single aspect of state activity is unlawful. It does refer to the characteristic ways in which a state acquires its means of action-taxation, the unrequited taking of private property, including labour services in the form of military service or the keeping of records for purposes of taxation and regulation-as well as to the characteristic output of the state-coercive regulation of lawful, peaceful activities. Thus, states grant monopolies and other privileges and immunities to some, and burden others with extraordinary liabilities, licensing requirements, restrictions on trade and association, and so on. Behind all of these characteristic activities of the state, there stands its control of [usually] superior means of force and violence, which allows it to have its way-to impose its will, regardless of the consent of those against whom it deploys its forces. This control of the means of violence and force is so essential, that no organisation that does not have a near-monopoly of violence and force will be recognised as a state. On the other hand, and for all practical purposes, an organisation that has such a monopoly in a more or less extended area will be recognised as a state, if not officially, then unofficially.
Figure 10
In the language of the economists, a state can therefore be defined as a monopoly supplier of organised force and violence-or, more generally, a monopoly supplier of unlawful means and methods of action. As the famous legal theorist Hans Kelsen said: all violence is either legal (committed, or authorised, by the state) or criminal (persecuted by the state). To establish and maintain this monopoly, the first commitment of the state must be to suppress competitors in what we may call 'the market for unlawful gains'. In this capacity, the state "fights crime", because criminals, especially organised criminals, are a direct challenge to the state's revenue and prestige. If there is a demand for unlawful gain-i.e. for services that cannot be delivered lawfully-then a competitive supply of criminal services will lower the price of crime, thereby making the choice for criminal methods more likely than it would otherwise be. An effective monopoly, on the other hand, is in a position to attract more of the demand for unlawful gains, while at the same time restricting its output in order to raise the price for its services. In doing this, it will probably increase its own revenues from the sale of such services, while at the same time reducing the total amount of crime. An effective monopoly will also be able to collect more taxes, because it will not be opposed by rivals who compete for the same tax base, nor by organised tax-resisters who make the collection of taxes more costly. When rival tax gangs are suppressed, the tax monopoly may increase its own tax revenues, while at the same time lowering the total tax burden for the population.
Compared to a situation characterised by a competitive supply of force, violence and deception for aggressive purposes, the monopolistic situation-the existence of a state-is clearly advantageous, not just for the state, but also for its subjects. The latter suffer less from crime, and pay less taxes. This observation lies at the root of the idea, that the state is a necessary evil-evil, because if anybody else were to do what the state does, he would rightly be accused of criminal activity; but necessary, because it is felt that it makes life safer, by reducing the risk of being victimised by crime.
However, the fact that the state apparatus is organised as an effective monopoly of the means of violence does not in itself guarantee that it will function as such. It may be expected to do so, in a monarchical system, where one person, or perhaps one party, controls the whole machinery of power. In other systems, where there is competition for the control over the state apparatus-as there is e.g. in a democratic multi-party system-the situation is very different. For example, the parties may compete for power by offering all sorts of privileges, immunities, and subsidies to particular individuals or groups, shifting the costs of these measures to other individuals and groups, either in the form of increased direct or indirect tax burdens, or in the form of a loss of liberty or equal standing, or, perhaps, in the form of an inflation of the money supply (i.e. a tax of sorts on the use of money). Competition for votes may well result in an increased supply of "political services", an increased use of the political method, and an increased tax burden. Similar effects may be expected in complex states, where there are many overlapping jurisdictions and tax authorities-e.g. when federal and local authorities compete for access to the same tax base, by offering competing services for the satisfaction of the same needs and desires of the local population, or of some of its politically important groups. Also, when it is felt, that the state is "for everybody", or that everybody should have equal access to the state, the result is likely to be a significant lowering of the user-price of, and an increased demand for, "political services", but also increase in the burden for all tax paying citizens-after all, somebody has to pay for them.
Lawful and unlawful uses of force
Force
Defensive
Offensive
Competitive supply Rule of law
War
Monopolistic supply "Rechtsstaat"
Political rule (state)
We should not look only at the unlawful or aggressive uses of force and deception. Doing so creates the impression, that there are only two regimes to consider: either a competitive supply of the means of violence and deception (war), or a monopolistic supply (the state, or, more generally, political rule). Adopting this perspective, we cannot but conclude, that only political rule protects social life from disintegrating into war. However, there is no warrant for adopting this perspective, because, obviously, the basic problem is not competition versus monopoly, but lawful versus unlawful uses of force and deception. The chances for peaceful co-existence depend on the balance of power between those who practice lawful defence and those who practice unlawful aggression. It is beyond question, that lawful defence, no less than unlawful aggression, can be supplied competitively or monopolistically. Recognising this, we see that there are at least four alternative regimes, as indicated in the diagram reproduced here.
In addition to war and political rule ("the state") we now have two other alternatives: the rule of law and the Rechtsstaat. Both of these are conditioned by the superiority of defensive uses of force over aggressive uses. The difference between them is in the organisation of defence: competitive in the one case, monopolistic in the other.
The Rechtsstaat
A Rechtsstaat-literally, a lawful state-is supposed to be concerned exclusively with the enforcement of law. However, as a monopoly supplier of defence services, it requires a massive concentration of the means of force and violence. One problem, which has received much attention from jurists and political theorists, is that there is no obvious way to keep such a monopoly from diverting from its proclaimed mission and from engaging in unlawful acts. There is no effective countervailing power, because the basic premise of the Rechtsstaat is that all the effective means of force are controlled by a single monopolistic organisation.
To minimise the risk of abuse of power, the most popular solution has been to insist on a clear separation of legislative, judicial and executive powers. The citizens would elect representatives who are entrusted with the task of laying down the rules (laws, leges) according to which the judges, officers, and other agents of the state should go about their duties. However, as far as the citizens as such are concerned, the legislators should not have any legislative powers at all. In other words, the laws bind the state, not the citizens. In the pure Rechtsstaat, there is no governance of the country, since the citizens are supposed to live together as free persons under the law (ius); their only commitment is to accept the role of the state, its courts and officers, in the administration and enforcement of justice. On the other hand, the state monopoly must be governed, i.e. managed, and made to do its constitutional duty according to the legislated rules-courts, police forces, and related services must be organised, qualified personnel must be hired, procedures specified, and so on. These rules are means to an end, which is the enforcement of law, and the administration of justice. The legislated rules, a fortiori the administrative proceedings authorised by them, do not take the place of law; they cannot redefine law. In a Rechtsstaat, neither the legislature nor the executive or the judicial branches of the state can diminish or change the natural rights of people-for these are defined as a matter of natural law.
Figure 11
In the Rechtsstaat law (ius) is supreme; the state is committed to do justice, and the laws (leges) are the chosen method of binding the state to this exalted duty. Thus, as far as the state is concerned, the principle of legality is intended to make sure no action by the state will be considered legitimate, unless it has been explicitly authorised by a lex given by the legislators. The legislators, being representatives of the people, are in turn supposed 1) to give expression to the one common interest of all the citizens: their common interest in justice, in a constant search for means and methods of making law prevail, and 2) to control the government and the courts in order to check whether these remain within the legal bounds laid down for them. From this set-up the characteristic feature of the intended Rechtsstaat emerges: there is a clear and absolute separation of state and society: society is subject to law (ius), the state is subject to laws (leges); the citizens are free persons, the magistrates and other agents of the states are civil servants.
The weakness of this constitutional set-up is immediately apparent: who guards the guardians? In other words: who shall see to it, that the legislators only make laws that bind the state to its solemn duty of providing justice? The fact that they are elected is no guarantee that they will do so, because elections give them an incentive to become politicians rather than legislators in the proper sense. They may find-in fact, did find-that they can serve their own interests better by serving special, particular interests than by serving the general or common interest in justice. The reason is, that special interest legislation provides legal, but unlawful, gains to some people-gains they can capture in toto-whereas common interest legislation provides a diffuse benefit to all, and not just to those who spend time and effort in preparing, submitting and arguing for it. Consequently, it is to be expected, that people will concentrate their legislative efforts on things that particularly concern them-leaving efforts to make law in the common interest to others. If everybody reacts in this way, no common interest legislation will be passed. Moreover, the legislators-turned-politicians will become rulers who simply use the apparatus of the state to enforce their laws (leges) on the citizens. The citizens are thereby reduced to the status of subjects-even as voters they no longer elect people who are supposed to be experts in justice, but people who are supposed to be experts in promoting some interests at the expense of others. In fact, voters have an incentive to vote as members of particular groups, and to hope that their own leaders will effectively rule other people. This is a complete denial of the idea of the Rechtsstaat, which is not concerned with the question "Who rules whom?", but with the attempt to eliminate rulers and subjects-in other words, to institutionalise freedom under the law. A partial-and probably not very effective-remedy for this corruption of the Rechtsstaat is the institution of a bicameral system, in which one chamber of representatives devotes itself to legislation, and the other to supervising the political activities of the government-especially its spending decisions, and other activities that are likely to have unequal distributive effects.
From a logical point of view, the devolution of the Rechtsstaat into just another system of rule is not surprising. There is a fundamental contradiction at the very base of the idea of the Rechtsstaat-to wit, the idea, that monopoly of the means of force and violence is somehow necessary to maintain the order of law. Thus, while the ostensible purpose of the Rechtsstaat is to fight and suppress the use of the "political method", it claims for itself the privilege of using that method to eliminate competitors-or to force people to rely exclusively on its own services.
It is easy to understand, that this monopoly is itself a violation of law. It denies people the right to seek protection of their rights and lawful interests from other providers of security and protective services, to provide for their own defence, or to enter into lawful competition with the monopolistic Rechtsstaat by offering more efficient alternatives to its services. Legally and constitutionally, they have no option but to accept the services of the state such as they are, and to try to capture control of the legislative power, if they are really serious about change. Thus, they are forced to form winning coalitions to press their ideas through the legislative process of the state, because only the output of that process stands a chance of being applied. The consequences of this state of affairs are grave and diverse.
Competition in the fields of adjudication and law enforcement being outlawed, there is at any one time only one system that is put to the test of practice. Thus, people have no choice among alternative ways of administering justice. They cannot switch to a better system, because there is none. They may try to change the existing system, but even if they succeed, there is again no valid basis for evaluating the comparative merits of the reforms the succeeded in making. Any imbalance in the one prevailing system will lead to an advantage for some, and a disadvantage for other, classes of persons or interests-and this imbalance will endure until the state's magistrates and agents do something about it, or, more likely, until a new legislative majority replaces the existing system with another, which may not be better balanced that the previous one. The risk here is, that the administration of justice and the enforcement of law will become politicised, and that control over the state's "apparatus of justice" will become a valuable prize for special interests.
Moreover, the monopolistic organisation of the Rechtsstaat provides no objective criterion for pricing its services, especially when the decision is made to finance the state's operations through taxation. Someone will have to determine how much tax revenue the state "needs" in order to do its job, and someone will have to allocate the revenue to the different branches and services of the state. However, in the absence of competition there is no obvious way to check whether money is spent efficiently or wasted. In a big, complex organisation, rivalry between departments will be inevitable, if they depend on allocations out of a common treasury. On the other hand, all the departments have a common interest in enlarging the treasury. Again, this is a perfect background for politicking and coalition building, for attempts to milk the tax payers and holding them hostage to the demands of a monopolistic supplier of vital services.
The Rule of Law
These problems of the Rechtsstaat are all rooted in its monopolistic organisation. The rule of law does away with this, because a consistent adherence to law-to the principle of freedom among likes-implies a recognition of every person's right to take care of his own defence by any and all lawful means-including voluntary association with others, either in membership groups, or as clients of professional providers of protection, conflict resolution, and related services. Whether they offer particular services for a honorary fee or a commercial price, insurance against a variety of risks to policy holders, more direct forms of reciprocal help, or free or charitable assistance, these associations are under the law-not above it. No person can be forced to become a member, or to remain one-they have therefore no coercive powers over any law-abiding person. This is an essential precondition for any system of administration of justice and law enforcement that does not in itself violate law and natural rights. It implies, that the business of justice and law is just another business, as far as its standing in the law is concerned-it is not a pretext for any violation of law, nor for any claim to special treatment. The outstanding characteristic of the rule of law is, that there is a market for justice-and that it is an open market, with free entry into the market, and free exit from any organisation or association on the market. In short: the administration of justice and the enforcement of law are organised according to the "economic method". The "political method", which has no lawful standing in any regime, has no legal standing under the rule of law.
An immediate implication of the rule of law is, therefore, that no one, and no association or any of its officers, is above the law: no judge, no police agent, can claim any special power or immunity-except against those who have explicitly and freely consented to invest him with such power or immunity, and even then only to the extent that they had the right to consent to such an arrangement. This means, among other things, that judges are selected by the common consent of the parties, either directly, when they agree on a common judge, or indirectly, when they cannot agree on a common judge and, say, the different judges preferred by each of them agree to defer the case to a third independent judge. When one party refuses to participate in a trial or other lawful method of conflict resolution, he may be judged in absentia; however, since the judge is not above the law, he should take extreme care to ensure a just trial, not only to minimise an the chances of a successful appeal against his verdict, but also to avoid a subsequent conviction for unlawful injury to the absent party.
Like the Rechtsstaat, the rule of law can only exist in an environment where the social balance of powers tilts towards the mass of decent, law-abiding people. But unlike the Rechtsstaat, it does not provide the inflated ego's of the merely ambitious, the power hungry, or the smarter types of criminals, with a "legitimate" route to a position where they can manipulate the administration of justice and the enforcement of law, with complete immunity and without any real liability for the damage they do by infringing other people's rights. Because the rule of law does away with monopoly, there is little risk that anyone's pet ideas or fancies become binding on all, merely because he rises to the top of the organisation holding the monopoly of the means of force and violence. However, there is little to protect the rule of law against widespread, popular ideas that deny either the reality or the value of law.
Text
Law and legislation
Frederic Bastiat (1801-1850) was a French economist, statesman, and author. He did most of his writing during the years just before-and immediately following-the Revolution of February 1848. This was the period when France was rapidly turning to complete socialism. As a Deputy to the Assemblée Nationale, Bastiat was well placed to study the ways in which pressure groups and ideological parties used legislation to transform the police and fiscal powers of the state into tools for imposing their own interests and programmes. He protested eloquently and wittily against this 'legal plunder', embodied in the protectionism of the established groups as well as in the innumerable schemes for re-making society that the newly elected socialist intellectuals were introducing. The excerpt is from his famous pamphlet, The Law (1850).
The principle of law
...
Life, faculties, production-in other words, individuality, liberty, property-this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it.
Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
What, then, are laws? They are the collective organization of the individual right to lawful defence.
Each of us has a natural right-from God-to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend-even by force-his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right-its reason for existing, its lawfulness-is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force-for the same reason-cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
Such a perversion of force would be, in both cases, contrary to our premise.
Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces? If this is true, then nothing can be more evident than this: The laws are the organization of the natural right of lawful defence. They substitute a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.
If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, non-oppressive, just, and enduring government imaginable-whatever its political form might be.
Under such an administration, everyone would understand that he possessed all the privileges as well as all the responsibilities of his existence. No one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack.
When successful, we would not have to thank the state for our success. And, conversely, when unsuccessful, we would no more think of blaming the state for our misfortune than would the farmers blame the state because of hail or frost. The state would be felt only by the invaluable blessings of safety provided by this sort of government.
It can be further stated that, thanks to the non-intervention of the state in private affairs, our wants and their satisfactions would develop themselves in a logical manner. We would not see poor families seeking literary instruction before they have bread. We would not see cities populated at the expense of rural districts, nor rural districts at the expense of cities. We would not see the great displacements of capital, labor, and population that are caused by legislative decisions.
The sources of our existence are made uncertain and precarious by these state-created displacements. And, furthermore, these acts burden the government with increased responsibilities.
The perversion of the laws
But, unfortunately, laws by no means confine themselves to their proper functions.
And when they have exceeded their proper functions, they have not done so merely in some inconsequential and debatable matters. The laws have gone further than this; they have acted in direct opposition to their own purpose. The laws have been used to destroy their own objective: They have been applied to annihilating the justice that they were supposed to maintain; to limiting and destroying rights which their real purpose was to respect. The laws have placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. Legislation has converted plunder into a right, in order to protect plunder. And it has converted lawful defence into a crime, in order to punish lawful defence.
How has this perversion of the laws been accomplished? And what have been the results? The laws have been perverted by the influence of two entirely different causes: stupid greed and false philanthropy. Let us speak of the first.
Self-preservation and self-development are common aspirations among all people. And if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing.
But there is also another tendency that is common among people. When they can, they wish to live and prosper at the expense of others. This is no rash accusation. Nor does it come from a gloomy and uncharitable spirit. The annals of history bear witness to the truth of it: the incessant wars, mass migrations, religious persecutions, universal slavery, dishonesty in commerce, and monopolies. This fatal desire has its origin in the very nature of man-in that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with the least possible pain.
Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property.
But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.
Now since man is naturally inclined to avoid pain-and since labor is pain in itself-it follows that men will resort to plunder whenever plunder is easier than work. History shows this quite clearly. And under these conditions, neither religion nor morality can stop it.
When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor.
It is evident, then, that the proper purpose of laws is to use the power of collective force to stop this fatal tendency to plunder instead of to work. All the measures of the laws should protect property and punish plunder.
But, generally, the laws are made by one man or one class of men. And since a law cannot operate without the sanction and support of a dominating force, this force must be entrusted to those who make the laws.
This fact, combined with the fatal tendency that exists in the heart of man to satisfy his wants with the least possible effort, explains the almost universal perversion of the laws. Thus it is easy to understand how laws, instead of checking injustice, become the invincible weapons of injustice. It is easy to understand why laws are used by the legislator to destroy in varying degrees among the rest of the people, their personal independence by slavery, their liberty by oppression, and their property by plunder. This is done for the benefit of the person who makes the laws, and in proportion to the power that he holds.
Men naturally rebel against the injustice of which they are victims. Thus, when plunder is legally organized for the profit of those who make the laws, all the plundered classes try somehow to enter-by peaceful or revolutionary means-into the making of laws. According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.
Woe to the nation when this latter purpose prevails among the mass victims of legalised plunder when they, in turn, seize the power to make laws!
Until that happens, the few practice legalised plunder upon the many, a common practice where the right to participate in the making of laws is limited to a few persons. But then, participation in legislation becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests.
It is as if it were necessary, before a reign of justice appears, for everyone to suffer a cruel retribution-some for their evilness, and some for their lack of understanding.
It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the laws into instruments of plunder.
What are the consequences of such a perversion? It would require volumes to describe them all. Thus we must content ourselves with pointing out the most striking.
In the first place, it erases from everyone's conscience the distinction between justice and injustice.
No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When laws and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the laws. These two evils are of equal consequence, and it would be difficult for a person to choose between them.
The proper nature of laws is to maintain justice. This is so much the case that, in the minds of the people, respect for the laws and justice are one and the same thing. There is in all of us a strong disposition to believe that anything lawful is also ljust. This belief is so widespread that many persons have erroneously held that things are "just" because laws make them so. Thus, in order to make plunder appear just and sacred to many consciences, it is only necessary for a law to decree and sanction it. Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.Trade and the division of labour
While the implementation of a property rule does eliminate free access, it does not make all things inaccessible to anyone else but their owners: with the power to make decisions about the use of one's property comes the power to make it available to others, for free or in exchange for something else. Moreover, when many people start making exchanges on a regular basis, they are likely to devote a significant part of their efforts to producing goods and services for exchange, rather than for their own direct use. In this way, trading promotes specialisation, or what is sometimes called 'the division of labour'. It encourages people to provide for their own needs by providing for those of others, thereby linking them together in a vast network of exchange and communication.
Thus trade and exchange and the division of labour are bound to take an eminent place in the theories that focus on respect for law as the proper way of maintaining society. It should not come as a surprise, then, that opposition to this approach to social harmony has often focused on trade and/or the division of labour, because these are likely to be the most visible and spectacular aspects of this system.
Unlike the characteristic relation of political rule, trade and exchange are reciprocal operations: A gives X to B, and, in exchange for X, B gives Y to A. Under normal conditions, when there is sufficient protection of person and property, the only motive for this exchange is that A values Y more than X, while B values X more than Y. This means, first of all, that the simple act of exchanging things is productive of value: both A and B experience an increase in well-being-at least, they expect to do so when they agree to trade with one another. Thus, trade and exchange are first and foremost expansions of the productive powers of human beings. This is often overlooked by those who associate production with physical labour-the expense of energy-although it is all too obvious that such physical production may be, and often is, a mere waste of effort.
But more important is the following implication: because trade and exchange are reciprocal operations, the very same motive that generates exchange will also put a stop to it. A and B will continue to exchange X's and Y's until either one of them finds, that no more value can be produced by giving up an X for a Y, or a Y for an X. That individual will then have reached an equilibrium, as far X's and Y's are concerned. He drops out of that particular process of exchange. Consequently, when there is respect for law, trade and exchange have a natural stopping point, viz. when it is no longer perceived to be in the interests of all the parties involved in the interaction.
Where natural law is respected, trade and exchange are constrained to serve only the common interests of the trading partners. Moreover, because the respect for law does not simply mean, that A and B respect each other's natural rights, but also the natural rights of every other person, no one suffers any unlawful harm from their trade, while they continue to reap the gains from their exchanges. Thus, trade is not only a "positive sum"-game for those involved in it, it also remains a "positive sum"-game when everybody else's lawful interests are taken into account. Of course, C may object to A's trading with B, on the ground that it would be "better", if A were to trade with C himself, or with D. But C has no more right to determine whom A should trade with, or what A should do, than A has with respect to C-neither has a lawful interest in coercing the other, or anybody else, to make one exchange rather than another. In other words, as far as lawful interests are concerned, trade benefits some, without detriment to others.
None of the other types of solution to the problem of conflict provides a mechanism like this that is at once productive of value and capable of harmonising the interests of diverse individuals. "Abundance", we may recall, simply denies the possibility of conflicts of interests. "Unity", on the other hand, implies, that the ruler solves all possible conflicts of interests ex ante "according to his own judgement"-but there is no countervailing objective, i.e. independent, interest to inform the ruler whether his judgement was mistaken or not. The ruler's interests are not harmonised with anything; his job is to regulate the interests of others. He and he alone has to judge whether he made a mistake, or whether he has to resort to the use of harsher methods to make his will or wisdom prevail. The same remark holds for the consensus idea: the deep consensus of the community is supposed to have fully integrated and solved all possible conflicts of interest in its moral code-the supposed considered judgement of the community-but there is, again, no independent source of information about the wisdom of that judgement. Thus, it befalls to the interpreters of the community's moral code to judge whether their previous interpretations must be supposed to have been wrong, or whether they should double their efforts of enforcing political correctness. Both "unity" and "consensus" imply that the rulers should not be deterred by resistance or disaffection of their subjects, but firmly stick to their duty, which is to make sure, that their subjects do not act on their own judgements. In other words, both imply the possibility, that the rulers enforce their own mistakes as the rule for others to live by. There is no natural stopping point for their mistakes, other than successful rebellion or revolution. And there is no logical escape from this conclusion, other than the supposition, that the rulers' judgement is infallible, or the supposition, that no price is too high for the benefits of unity or consensus.
Another distinction of the system of law is this. Logically speaking, respect for natural law depends on accepting the distinction between lawful and unlawful interests; psychologically speaking, it depends on the willingness "to give to each his own", or, to put it more crudely, to accept, that some things "are none of your business". But, from the political point of view, nothing is not the business of the rulers-at any rate, it is for them, as rulers in their own right or as guardians of the community's way of life, to decide what is their business. To them, the distinction between lawful and unlawful interests is without consequence. They do not-indeed cannot-make it their business to see to it that people respect natural law, for natural law, far from ruling out that people act on their own judgement, actually presupposes that they do. Thus, natural law, the natural order of human affairs, is part of the sickness which the recourse to political methods of rule are required to cure.
In this chapter we shall have a look at some of the classical expressions of the opposition to the market society, and the system of law that underpins it. But first we should listen to what one of the most prominent eulogists of the division of labour had to say about it.
The principle which gives occasion to the division of labour
The significance of the division of labour was one of the central messages of Adam Smith's Inquiry into the Nature and the Causes of the Wealth of Nations, the book that launched modern economic science. We reproduce the second chapter:
THIS division of labour, from which so many advantages are derived, is not originally the effect of any human wisdom, which foresees and intends that general opulence to which it gives occasion. It is the necessary, though very slow and gradual consequence of a certain propensity in human nature which has in view no such extensive utility; the propensity to truck, barter, and exchange one thing for another.
Whether this propensity be one of those original principles in human nature of which no further account can be given; or whether, as seems more probable, it be the necessary consequence of the faculties of reason and speech, it belongs not to our present subject to inquire. It is common to all men, and to be found in no other race of animals, which seem to know neither this nor any other species of contracts. Two greyhounds, in running down the same hare, have sometimes the appearance of acting in some sort of concert. Each turns her towards his companion, or endeavours to intercept her when his companion turns her towards himself. This, however, is not the effect of any contract, but of the accidental concurrence of their passions in the same object at that particular time. Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog. Nobody ever saw one animal by its gestures and natural cries signify to another, this is mine, that yours; I am willing to give this for that. When an animal wants to obtain something either of a man or of another animal, it has no other means of persuasion but to gain the favour of those whose service it requires. A puppy fawns upon its dam, and a spaniel endeavours by a thousand attractions to engage the attention of its master who is at dinner, when it wants to be fed by him. Man sometimes uses the same arts with his brethren, and when he has no other means of engaging them to act according to his inclinations, endeavours by every servile and fawning attention to obtain their good will. He has not time, however, to do this upon every occasion. In civilised society he stands at all times in need of the co-operation and assistance of great multitudes, while his whole life is scarce sufficient to gain the friendship of a few persons. In almost every other race of animals each individual, when it is grown up to maturity, is entirely independent, and in its natural state has occasion for the assistance of no other living creature. But man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only. He will be more likely to prevail if he can interest their self-love in his favour, and show them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind, proposes to do this. Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of.
It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens. Even a beggar does not depend upon it entirely. The charity of well-disposed people, indeed, supplies him with the whole fund of his subsistence. But though this principle ultimately provides him with all the necessaries of life which he has occasion for, it neither does nor can provide him with them as he has occasion for them. The greater part of his occasional wants are supplied in the same manner as those of other people, by treaty, by barter, and by purchase. With the money which one man gives him he purchases food. The old clothes which another bestows upon him he exchanges for other old clothes which suit him better, or for lodging, or for food, or for money, with which he can buy either food, clothes, or lodging, as he has occasion.
As it is by treaty, by barter, and by purchase that we obtain from one another the greater part of those mutual good offices which we stand in need of, so it is this same trucking disposition which originally gives occasion to the division of labour. In a tribe of hunters or shepherds a particular person makes bows and arrows, for example, with more readiness and dexterity than any other. He frequently exchanges them for cattle or for venison with his companions; and he finds at last that he can in this manner get more cattle and venison than if he himself went to the field to catch them. From a regard to his own interest, therefore, the making of bows and arrows grows to be his chief business, and he becomes a sort of armourer. Another excels in making the frames and covers of their little huts or movable houses. He is accustomed to be of use in this way to his neighbours, who reward him in the same manner with cattle and with venison, till at last he finds it his interest to dedicate himself entirely to this employment, and to become a sort of house-carpenter. In the same manner a third becomes a smith or a brazier, a fourth a tanner or dresser of hides or skins, the principal part of the clothing of savages. And thus the certainty of being able to exchange all that surplus part of the produce of his own labour, which is over and above his own consumption, for such parts of the produce of other men's labour as he may have occasion for, encourages every man to apply himself to a particular occupation, and to cultivate and bring to perfection whatever talent or genius he may possess for that particular species of business.
The difference of natural talents in different men is, in reality, much less than we are aware of; and the very different genius which appears to distinguish men of different professions, when grown up to maturity, is not upon many occasions so much the cause as the effect of the division of labour. The difference between the most dissimilar characters, between a philosopher and a common street porter, for example, seems to arise not so much from nature as from habit, custom, and education. When they came into the world, and for the first six or eight years of their existence, they were perhaps very much alike, and neither their parents nor playfellows could perceive any remarkable difference. About that age, or soon after, they come to be employed in very different occupations. The difference of talents comes then to be taken notice of, and widens by degrees, till at last the vanity of the philosopher is willing to acknowledge scarce any resemblance. But without the disposition to truck, barter, and exchange, every man must have procured to himself every necessary and conveniency of life which he wanted. All must have had the same duties to perform, and the same work to do, and there could have been no such difference of employment as could alone give occasion to any great difference of talents.
As it is this disposition which forms that difference of talents, so remarkable among men of different professions, so it is this same disposition which renders that difference useful. Many tribes of animals acknowledged to be all of the same species derive from nature a much more remarkable distinction of genius, than what, antecedent to custom and education, appears to take place among men. By nature a philosopher is not in genius and disposition half so different from a street porter, as a mastiff is from a greyhound, or a greyhound from a spaniel, or this last from a shepherd's dog. Those different tribes of animals, however, though all of the same species, are of scarce any use to one another. The strength of the mastiff is not, in the least, supported either by the swiftness of the greyhound, or by the sagacity of the spaniel, or by the docility of the shepherd's dog. The effects of those different geniuses and talents, for want of the power or disposition to barter and exchange, cannot be brought into a common stock, and do not in the least contribute to the better accommodation ind conveniency of the species. Each animal is still obliged to support and defend itself, separately and independently, and derives no sort of advantage from that variety of talents with which nature has distinguished its fellows. Among men, on the contrary, the most dissimilar geniuses are of use to one another; the different produces of their respective talents, by the general disposition to truck, barter, and exchange, being brought, as it were, into a common stock, where every man may purchase whatever part of the produce of other men's talents he has occasion for.
Moral critique of market behaviour
Self-interest and egoism"It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages." To many commentators, these words from Adam Smith's The Wealth of Nations constitute about the most pertinent critique of the market system that can be made: it is an orgy of self-interest, in which there is no place for humanity or human needs. Of course, neither Smith nor any other defender of the market system made self-interest its foundation. That foundation is natural law, which includes property and contract, and which provides the frame work for charitable, altruistically motivated action, as much as for action motivated by self-interest. Nevertheless, a society that honours natural law is, as a matter of empirical fact, though not of logical necessity, a market society in which most people frequently interact with people they have little or no knowledge about, and whose co-operation they seek for no other reason than that they appear no be "useful". And this holds for the proverbial altruist as much as it does for the proverbial egoist.
An altruist is usually someone who wants to help other people, but not all other people, only such as he deems worthy of help, or "truly needy". He may dedicate whatever he has to his altruistic projects, but then he must, to begin with, have something to offer to those he calls "the needy", and that must be something that is in their self-interest, not in their altruistic interest. His love or humanity alone will not satisfy their need-and it will not satisfy his altruistic interest. "I give to you, and you give to me, True Love" is a nice lyric, it is not what philanthropy or charity or altruism is all about. So, the question for the altruist is, how to get so that I can give it away? There are only two ways in which he can achieve his goal: lawfully or lawfully-he can work and trade to produce the surplus he'd like to distribute, or he can rob, steal or defraud others. But if he wants to be charitable out of the revenue of his work and trade, then he has to work and trade with extreme efficiency in order to maximise his surplus. In short, he will have to drive hard bargains to cut his costs, and so appear to most people who meet him in his productive capacity as an extremely self-interested man who cares little for the other side's "interest" in his business transactions. If he runs a charitable, or philanthropic organisation, his employees will find that he is as much a cost cutter as any other employer-and so on.
It is, to be sure, his altruism that makes him a "self-interested devil" on the market, who never acts without a glance at the bottom line. He would not long be able to do his "good work" if he did otherwise. The point here is simple: the so-called self-interested behaviour on the market is not the mark of the self-interested egoist-it is the mark of rationality. (One can squander one's fortune in many ways, including in charitable work).
People in a market society are not-at any rate not necessarily-more egoistic than people in other types of society, but it is undoubtedly a fact, that in their activities on the market, they tend to be "self-interested" as far as their trading partners are concerned. (This is why Philip Wicksteed, one of the great English economists of the early twentieth century, preferred the term 'non-tuism'-from non tu, literally: not you-to the much maligned 'self-interest': that I do not particularly care for you, who are the baker from whom I buy my bread, does not mean that I do not care for my children, or my parents, or the orphans in the local orphanage for whom I buy your product.)
The point can also be made with reference to organisations and states: the extravagance of the European welfare states-which we may see, if only for the sake of the argument, as "institutionalised altruism"-has a price in the form of an ever- increasing pressure on businesses and working people to become ever more "competitive", i.e. to generate ever more taxable surplus with which to finance the welfare set-up. The difference is, of course, that our previous altruist-on-the-market could decide for himself when enough is enough. The coerced "altruism" of the welfare state, on the other hand, is driven by the relentless application of the "political method" of taxation and regulation. Those who apply that method-"for altruistic reasons, of course"-are not the ones who feel the pain of being forced to become ever more "self-interested", in order to make it possible for the first to become ever more "altruistic".
Once we see, that people "enter the market" only if and when they expect that market co-operation is likely to benefit the pursuit of their goals-whether these be altruistic or not-it should become clear, that what happens on the market is not all that happens in a market society. Participation in the market is for every participant a means to his personal ends-and most of these ends lie outside the market. But this means, that in a market society the part of one's actions that is most visible to others-what happens on the market-is precisely that part that appears to be dominated in the highest degree by self-interest, while most of the "nicer" or "morally uplifting" things take place off the market-as do most of the unsavoury, and also criminal and political things. As the example of the efficient altruist makes clear: the same action can be extremely altruistic in its goals, and extremely self-interested in its method-in fact, it can be extremely self-interested in its method because it is extremely altruistic in its goals. It is, of course, dishonest to indict market behaviour for its supposed self-interested character, when from the point of view of the acting individuals that behaviour is only a means to an end-especially if the indictment comes from those who evaluate political and other non-market behaviour in terms of the "good intentions" that supposedly motivate it, without regard for the fact that it relies on the political method, i.e. on the violation on a large scale of natural order of law.
Two conclusions follow from the preceding discussion. First, we should be careful to distinguish self-interest from egoism, which is the opposite of altruism. Self-interest is a general characteristic of human action: goal-directed, purposive action is self-interested because the acting person-assuming that he is not being coerced, in which case he is merely a tool for another's action-is pursuing his own goals, which may be egoistic or altruistic. In other words, egoism and altruism refer to the characteristics of the final goals of a person's actions, regardless of their institutional context-on the market or off the market-and regardless of the methods they employ-"economic" or "political". As we have seen, it is easy to charge that market behaviour is self-interested-because it so obviously is-but that fact does not substantiate any moral indictment of market behaviour whatsoever. Alternatively, non-market behaviour is equally self-interested, and can be as egoistically motivated as anything that happens on the market.
The second conclusion is, that neither references to self-interest nor references to egoism and altruism should make us lose sight of the basic distinction between lawful and unlawful, "economic" and "political", action. This distinction underlies the whole of Adam Smith's discussion of market society. It is what takes the mystery out of his celebrated, but often misunderstood, reference to "the invisible hand" that harmonises human interests on the market. (Wealth of Nations, book IV, chapter 2)
As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.
To this Smith adds:
Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good.
The main message in these lines is, that actions should also be judged by their results, not merely by the intentions of the agents-especially when the declared intentions may be mere affectations. However, the passus is notorious for its reference to "an invisible hand" that leads self-interested individuals unintentionally to promote a "public interest". Many have interpreted this to mean, that the argument that market transactions are "in the public interest" rests on nothing else than an "unscientific" belief in the intervention of some sort of beneficial magical or supernatural force. However, occasionally the mistaken basis for this interpretation is revealed in the comment itself.
Take, for instance, Eric Havelock's assertion, that "laissez faire in economics presupposes a system of natural law, certainly not perceptible by the senses, which magically harmonises the competing interests of individuals in a synthesis which becomes the common interest of all". Now, it is certainly true that the doctrine of laissez faire presupposes natural law, but not in the sense of a system of metaphysical leges naturales (i.e. commands "given by Nature, or by God who created Nature"). It presupposes natural law in the naturalistic sense-which, as has been explained in another chapter, is the natural order of physical beings, their physical work and real agreements. In other words, it presupposes an effective enforcement of property rights and contracts, which are not metaphysical imperceptibles, but the basic stuff of daily life. There is therefore nothing magical or mysterious about Smith's "invisible hand": it is but the respect for law, whether this respect is shown spontaneously or only out of fear of the punishment that might be inflicted upon those who try to escape from their lawful obligations.
The comment by Havelock-an astute critic of the metaphysical approach to politics-is especially surprising, because metaphysical theories of natural law have generally been used to criticise market society. Indeed, as we shall see below, from the point of view of the proponents of metaphysical natural law, the very fact, that in a market society as such there is no concentrated mechanism of power for the enforcement of the supposed leges naturales, and, consequently, for propelling society to its pre-ordained end-state, is enough to condemn it as an imperfect arrangement, incapable of achieving "the good of Man".
Religious and philosophical roots of the opposition to law and markets
Not only is it fallacious to identify self-interested action with egoistic action, it is also fallacious to conclude that if action on the market is egoistic, then action off the market is not. The self-interest of people who rely on the economic method does not make people who rely on the political method public-spirited, nor does the alleged egoism of the former make the latter altruistic. The one essential difference between them is, that the former's self-interest, egoism and altruism, is to a large extent controlled by law, whereas the latter's is not. The critique of market society is fundamentally a critique of the ideal of justice, i.e. of respect for law. But law being the order of freedom among likes, the critique of market society must necessarily resolve itself either into a denial of freedom or into a denial of the equal humanity of different people. The first denial is typical of modern times: it often comes down to the assertion that freedom must not be allowed to stand in the way of utopian egalitarianism. The latter denial is of older vintage: it values freedom, but only for "the better sort of people".
Of course, most of the time the denial of law is not explicit. Many religions, ideologies and philosophies clothe their opposition to natural law in seemingly innocuous, even noble, ideas. These are usually not in obvious conflict with the proper sense of justice. Nevertheless many of them are extremely subversive of law and justice. Let us consider a few examples.
Citizenship. One example is the notion of good citizenship. Most people appear to believe that the term refers to common decency, to the quality of being a good neighbour, to a willingness to abide by law. In this popular sense, a good citizen is a good person. In the popular understanding, then, the language of citizenship is superfluous-at best a rather pompous way to express familiar qualities of human relations. Consequently, many people are prepared to regard good citizenship as something noble, and to accept religions and philosophies that exhort them to be good citizens as ethically exemplary teachings. They fail to distinguish the distinctive theoretical meaning of citizenship, which does not refer at all to common decency, nor to justice, but to an unconditional acceptance of, and obedience to, the laws (leges) of the political regime under which one lives. In contrast with the good person, who distinguishes between justice and injustice, the good citizen only distinguishes between legality and illegality. Whereas the good person abjures and fights crime, the good citizen abjures and fights disobedience, nonconformism and dissidence. The first lives according to law, respecting his fellow human beings and their work, the other lives according to the laws that define his status as a citizen. Identifying himself with these laws, the good citizen knows no self-respect other than respect for the laws. Also, for the good citizen his fellows are respectable only to the extent that they also identify themselves with the same laws as he does. Because of this presumed mutual identification with the legal order or regime, the citizen feels entitled to disregard the natural fact that he is separate from all others, for every citizen, qua citizen, is identical with every other. Consequently, what one does to another is, for both of them, "what we do to ourselves". Every I and you disappears into the collective we, which is the mystical-or, as lawyers prefer to say: fictional-person of the political community.
Most people can make little play with this blurring of personal identities. They instinctively translate the abstract notions of citizenship into the familiar language of human sentiment and attitude, assuming that the former are only the "official, and learned expressions" of the latter. Thus, the prestige of religions, ideologies and philosophies of good citizenship is likely to mislead many people into a false consciousness of social realities. In fact, the intimidating talk of good citizenship mainly serves to confuse people about the notions of justice and legality, to induce them to substitute the latter for the former, until they end up mistaking that which should be measured for the measure itself-the familiar fallacy of legal positivism.
Solidarity. Even more subversive of law is the idea of solidarity. Again there is wide gulf between the popular understanding of the term and its theoretical meaning in many religious and ideological systems. As they do with citizenship, most people associate solidarity with common decency, a willingness to help others by sharing with them. This is by all accounts a noble attitude, and people tend to take great and justified pride in their displays of it. But most religious or ideological advocates of solidarity have something completely different in mind. Once we understand what that is, we can appreciate that 'solidarity' is not a somewhat pompous synonym for 'human kindness', but an expression for something that is the very opposite of justice or respect for law. 'Solidarity' derives from the Latin 'solidus', which means massive, firm, dense, and hence fixed, immovable. The noun 'solidum' refers to a whole set or sum, to something that is to be moved or treated as one piece, in such a way that no distinction is made among its parts. Prime examples of solidarity in human relations are systems of punishment that allow, say, the killing of any member of a family in retaliation for a crime committed by one of its members: the family is treated as a whole, every one of its members is held responsible and liable for the actions of all members. We could also think of legal arrangements under which every member of a group can be forced to pay the debts of any one member: the group is treated as a single whole, no consideration is given to the reality, that the group's members are persons, capable of independent action.
Communism is the ultimate expression of solidarity: what belongs to one belongs to all; the individual person as such has no standing in the community, for he too belongs to all-and, if it is also said that all belong to him, in any particular case, the all outweighs the one. Consequently, there are no such things as personal freedom, property, responsibility and liability. Anyone's sins are everybody's sins, and anyone's work is everybody's work. The ontological basis of law, which is the separateness of persons, is flatly denied. Instead of this empirical fact, a supposed metaphysical, even mystical unity-a solidum-is made the basis of all social and psychological theorising. One is all and all is one-that's the theory; the practice is, that some get away with far more than others.
The common ground of these notions of citizenship and solidarity is precisely the rejection of the separateness of persons-i.e. of natural law-and the acceptance of its opposite, the fundamental unity of all. Obviously, this unity does not exist. If there is one thing we can be sure of, it is that, from a naturalistic point of view-i.e. when we consider people as flesh and blood-human beings are not one, but many; not all of the same opinion, but of many diverse opinions, on everything. But the fact that such unity does not exist, does not preclude the judgement that it should exist, that is something people ought to desire and act for. Alternatively, one may hold that it exists, but that we simply fail to see it-people live in error and illusion, and will continue to do so until they become enlightened and begin to see the "truth", that all is one. In either case, whether unity is held up as an ideal to be realised, or as a reality that is hidden to the understanding of the uninitiated, unity is presented as the ultimate good, the grand destiny of mankind.
Assuming that this idea of unity is valid, we cannot but conclude, that there is no sense to the notion of natural law. Thus, the merit of living according to natural law has to be denied. But natural law, as we have seen, is the main obstacle to the justification of political rule. Political rule always implies the subjection, in one form or another, of one person to another-sometimes to another natural person, a ruler, king or emperor, and sometimes to a fictional person, a city, state, or republic. One of the most telling images of this subjection is that of one person becoming a part of another, thus losing his separate existence and forfeiting any claim to a separate standing in natural law. It is no surprise, that the same image determines the logic of the notions of citizenship and solidarity: both apply to human beings as parts of a collective unit.
Political opposition to natural law and markets
As we have seen earlier, denial of law can be either denial of freedom or denial of equal humanity, or, of course, a denial of both. Classical political thought typically opted for the denial of equal humanity-Aristotle did so in so many words, Plato accepted equal humanity as a fact, but insisted that it should nevertheless be denied in order to have a stable political order. He argued that it was necessary to make people believe they were fundamentally unequal: As 'Socrates' (Plato's mouthpiece) explains to Glaucon in book III of The Republic, in a speech which some commentators call scandalous, but others refer to apologetically as 'the noble lie':
The "noble lie"
-Well then, I will speak, although I really know not how to look you in the face, or in what words to utter the audacious fiction, which I propose to communicate gradually, first to the rulers, then to the soldiers, and lastly to the people.
They are to be told that their youth was a dream, and the education and training which they received from us, an appearance only; in reality during all that time they were being formed and fed in the womb of the earth, where they themselves and their arms and appurtenances were manufactured; when they were completed, the earth, their mother, sent them up; and so, their country being their mother and also their nurse, they are bound to advise for her good, and to defend her against attacks, and her citizens they are to regard as children of the earth and their own brothers.
-You had good reason, he said, to be ashamed of the lie which you were going to tell.
-True, I replied, but there is more coming; I have only told you half. Citizens, we shall say to them in our tale, you are brothers, yet God has framed you differently. Some of you have the power of command, and in the composition of these he has mingled gold, wherefore also they have the greatest honour; others he has made of silver, to be auxiliaries; others again who are to be husbandmen and craftsmen he has composed of brass and iron; and the species will generally be preserved in the children. But as all are of the same original stock, a golden parent will sometimes have a silver son, or a silver parent a golden son. And God proclaims as a first principle to the rulers, and above all else, that there is nothing of which they are to be such good guardians, as of the purity of the race. They should observe what elements mingle in their off spring; for if the son of a golden or silver parent has an admixture of brass and iron, then nature orders a transposition of ranks, and the eye of the ruler must not be pitiful towards the child because he has to descend in the scale and become a husbandman or artisan, just as there may be sons of artisans who having an admixture of gold or silver in them are raised to honour, and become guardians or auxiliaries. For an oracle says that when a man of brass or iron guards the State, it will be destroyed. Such is the tale; is there any possibility of making our citizens believe in it?
-Not in the present generation, he replied; there is no way of accomplishing this; but their sons may be made to believe in the tale, and their sons' sons, and posterity after them.
-I see the difficulty, I replied; yet the fostering of such a belief will make them care more for the city and for one another.
The denial of freedom is a typically modern basis for the denial of law. It is, as we shall see below, a frequent theme in utopian thought, especially in communist utopianism. Freedom (in the etymological sense explained earlier, i.e. as independent existence on one's own) refers to the individual person as separate from other persons-and this notion is ,of course, anathema to the utopian communist.
The implications of these forms of denial of law for one's view of the market society are not at all the same. The denial of freedom has by far the most radical implication: it implies that the division of labour itself is without any value, if not a real disvalue. The denial of equal humanity, on the other hand, implies a positive valuation of the division of labour: the different sorts, or ranks, of human beings are naturally fitted for different sorts of activities. However, this positive attitude towards the division of labour does not extend to trade and exchange-that is to say, the advantages of the division of labour are not to be reaped by exchanging goods and services, but by bringing together the different talents of the various ranks of people in one organisation. The obvious political relevance of this view is, that it requires a political division of labour, and so a political specialisation, in the form of a breed of men who are especially fit to rule others.
The importance of the division of labour underlies the argument of Plato's main work, The Republic. In the second book of that work, where Plato begins the exposition of his own theory of justice, we find a clear demonstration of the Platonic method of political analysis and of its reliance on the notion of division of labour. First he declares his intention to regard the state as an individual person on a large scale-the central theme of unity-and then he goes on to ask, not how states actually come about, but what different elements or components we need to make a state, and how these components are to be arranged. To arrange the different parts or skills into a coherent organisation is precisely the specific art of the ruler or philosopher-king. His primary task is to identify the needs and functions of society. In the Platonic conception, society exists first as a blue print in the mind of the ruler, as an organogram specifying the several tasks that must be performed if the society is to do its intended work. The next job of the ruler is to find and train the people most suited for each task, and to make sure that they do exactly what is expected of them-nothing less, but also nothing more, for then they would interfere with the tasks of others, for which they are ex hypothesi less suited.
In this part of the book, 'Socrates' talks to Glaucon and Adeimantus, who can be counted upon to be very sympathetic to Plato's ideas-they were his brothers.
The origin of the state
-I will tell you, I replied; justice, which is the subject of our enquiry, is, as you know, sometimes spoken of as the virtue of an individual, and sometimes as the virtue of a State.
-True, he Adeimantus replied.
-And is not a State larger than an individual?
-It is.
-Then in the larger the quantity of justice is likely to be larger and more easily discernible. I propose therefore that we enquire into the nature of justice and injustice, first as they appear in the State, and secondly in the individual, proceeding from the greater to the lesser and comparing them.
-That, he said, is an excellent proposal.
-And if we imagine the State in process of creation, we shall see the justice and injustice of the State in process of creation also.
-I dare say.
-When the State is completed there may be a hope that the object of our search will be more easily discovered.
-Yes, far more easily.
-But ought we to attempt to construct one? I said; for to do so, as I am inclined to think, will be a very serious task. Reflect therefore.
-I have reflected, said Adeimantus, and am anxious that you should proceed.
-A State, I said, arises, as I conceive, out of the needs of mankind; no one is self-sufficing, but all of us have many wants. Can any other origin of a State be imagined?
-There can I be no other.
-Then, as we have many wants, and many persons are needed to supply them, one takes a helper for one purpose and another for another; and when these partners and helpers are gathered together in one habitation the body of inhabitants is termed a State.
-True, he said.
-And they exchange with one another, and one gives, and another receives, under the idea that the exchange will be for their good.
-Very true.
-Then, I said, let us begin and create in idea a State; and yet the true creator is necessity, who is the mother of our invention.
-Of course, he replied.
-Now the first and greatest of necessities is food, which is the condition of life and existence.
-Certainly.
-The second is a dwelling, and the third clothing and the like.
-True.
-And now let us see how our city will be able to supply this great demand: We may suppose that one man is a husbandman, another a builder, some one else a weaver -shall we add to them a shoemaker, or perhaps some other purveyor to our bodily wants?
-Quite right.
-The barest notion of a State must include four or five men.
-Clearly.
-And how will they proceed? Will each bring the result of his labours into a common stock? -the individual husbandman, for example, producing for four, and labouring four times as long and as much as he need in the provision of food with which he supplies others as well as himself; or will he have nothing to do with others and not be at the trouble of producing for them, but provide for himself alone a fourth of the food in a fourth of the time, and in the remaining threefourths of his time be employed in making a house or a coat or a pair of shoes, having no partnership with others, but supplying himself all his own wants?
Adeimantus thought that he should aim at producing food only and not at producing everything.
-Probably, I replied, that would be the better way; and when I hear you say this, I am myself reminded that we are not all alike; there are diversities of natures among us which are adapted to different occupations.
-Very true.
-And will you have a work better done when the workman has many occupations, or when he has only one?
- When he has only one.
-Further, there can be no doubt that a work is spoilt when not done at the right time?
No doubt.
-For business is not disposed to wait until the doer of the business is at leisure; but the doer must follow up what he is doing, and make the business his first object.
-He must.
-And if so, we must infer that all things are produced more plentifully and easily and of a better quality when one man does one thing which is natural to him and does it at the right time, and leaves other things.
-Undoubtedly..
-Then more than four citizens will be required; for the husbandman will not make his own plough or mattock, or other implements of agriculture, if they are to be good for anything. Neither will the builder make his tools -and he too needs many; and in like manner the weaver and shoemaker.
-True.
-Then carpenters, and smiths, and many other artisans, will be sharers in our little State, which is already beginning to grow?
- True.
-Yet even if we add shepherds, and other herdsmen, in order that our husbandmen may have oxen to plough with, and builders as well as husbandmen may have draught cattle, and curriers and weavers fleeces and hides, -still our State will not be very large.
-That is true; yet neither will it be a very small State which contains all these.
-Then, again, there is the situation of the city -to find a place where nothing need be imported is well-nigh impossible.
-Impossible.
-Then there must be another class of citizens who will bring the required supply from another city?
-There must.
-But if the trader goes empty-handed, having nothing which they require who would supply his need, he will come back empty-handed.
-That is certain.
-And therefore what they produce at home must be not only enough for themselves, but such both in quantity and quality as to accommodate those from whom their wants are supplied.
-Very true.
-Then more husbandmen and more artisans will be required?
-They will.
-Not to mention the importers and exporters, who are called merchants?
-Yes.
-Then we shall want merchants?
-We shall.
-And if merchandise is to be carried over the sea, skilful sailors will also be needed, and in considerable numbers?
-Yes, in considerable numbers.
-Then, again, within the city, how will they exchange their productions? To secure such an exchange was, as you will remember, one of our principal objects when we formed them into a society and constituted a State.
-Clearly they will buy and sell.
-Then they will need a market-place, and a money-token for purposes of exchange.
-Certainly.
-Suppose now that a husbandman, or an artisan, brings some production to market, and he comes at a time when there is no one to exchange with him. Is he to leave his calling and sit idle in the market-place?
-Not at all; he will find people there who, seeing the want, undertake the office of salesmen. In well-ordered States they are commonly those who are the weakest in bodily strength, and therefore of little use for any other purpose; their duty is to be in the market, and to give money in exchange for goods to those who desire to sell and to take money from those who desire to buy.
-This want, then, creates a class of retail-traders in our State. Is not 'retailer' the term which is applied to those who sit in the market-place engaged in buying and selling, while those who wander from one city to another are called merchants?
-Yes, he said.
-And there is another class of servants, who are intellectually hardly on the level of companionship; still they have plenty of bodily strength for labour, which accordingly they sell, and are called, if I do not mistake, hirelings, hire being the name which is given to the price of their labour.
-True.
-Then hirelings will help to make up our population?
-Yes.
-And now, Adeimantus, is our State matured and perfected?
-I think so.
-Where, then, is justice, and where is injustice, and in what part of the State did they spring up?
-Probably in the dealings of these citizens with one another. I cannot imagine that they are more likely to be found anywhere else.
-I dare say that you are right in your suggestion, I said; we had better think the matter out, and not shrink from the enquiry. Let us then consider, first of all, what will be their way of life, now that we have thus established them. Will they not produce corn, and wine, and clothes, and shoes, and build houses for themselves? And when they are housed, they will work, in summer, commonly, stripped and barefoot, but in winter substantially clothed and shod. They will feed on barley-meal and flour of wheat, baking and kneading them, making noble cakes and loaves; these they will serve up on a mat of reeds or on clean leaves, themselves reclining the while upon beds strewn with yew or myrtle. And they and their children will feast, drinking of the wine which they have made, wearing garlands on their heads, and hymning the praises of the gods, in happy converse with one another. And they will take care that their families do not exceed their means; having an eye to poverty or war.
-But, said Glaucon, interposing, you have not given them a relish to their meal.
-True, I replied, I had forgotten; of course they must have a relish-salt, and olives, and cheese, and they will boil roots and herbs such as country people prepare; for a dessert we shall give them figs, and peas, and beans; and they will roast myrtle-berries and acorns at the fire, drinking in moderation. And with such a diet they may be expected to live in peace and health to a good old age, and bequeath a similar life to their children after them.
-Yes, Socrates, he said, and if you were providing for a city of pigs, how else would you feed the beasts?
-But what would you have, Glaucon? I replied.
-Why, he said, you should give them the ordinary conveniences of life. People who are to be comfortable are accustomed to lie on sofas, and dine off tables, and they should have sauces and sweets in the modern style.
-Yes, I said, now I understand: the question which you would have me consider is, not only how a State, but how a luxurious State is created; and possibly there is no harm in this, for in such a State we shall be more likely to see how justice and injustice originate. In my opinion the true and healthy constitution of the State is the one which I have described. But if you wish also to see a State at fever heat, I have no objection. For I suspect that many will not be satisfied with the simpler way of life. They will be for adding sofas, and tables, and other furniture; also dainties, and perfumes, and incense, and courtesans, and cakes, all these not of one sort only, but in every variety; we must go beyond the necessaries of which I was at first speaking, such as houses, and clothes, and shoes: the arts of the painter and the embroiderer will have to be set in motion, and gold and ivory and all sorts of materials must be procured.
-True, he said.
-Then we must enlarge our borders; for the original healthy State is no longer sufficient. Now will the city have to fill and swell with a multitude of callings which are not required by any natural want; such as the whole tribe of hunters and actors, of whom one large class have to do with forms and colours; another will be the votaries of music -poets and their attendant train of rhapsodists, players, dancers, contractors; also makers of divers kinds of articles, including women's dresses. And we shall want more servants. Will not tutors be also in request, and nurses wet and dry, hairdressers and barbers, as well as confectioners and cooks; and swineherds, too, who were not needed and therefore had no place in the former edition of our State, but are needed now? They must not be forgotten: and there will be animals of many other kinds, if people eat them.
-Certainly.
-And living in this way we shall have much greater need of physicians than before?
-Much greater.
-And the country which was enough to support the original inhabitants will be too small now, and not enough?
-Quite true.
-Then a slice of our neighbours' land will be wanted by us for pasture and tillage, and they will want a slice of ours, if, like ourselves, they exceed the limit of necessity, and give themselves up to the unlimited accumulation of wealth?
-That, Socrates, will be inevitable.
-And so we shall go to war, Glaucon. Shall we not?
-Most certainly, he replied.
-Then without determining as yet whether war does good or harm, thus much we may affirm, that now we have discovered war to be derived from causes which are also the causes of almost all the evils in States, private as well as public.
-Undoubtedly.
-And our State must once more enlarge; and this time there will be nothing short of a whole army, which will have to go out and fight with the invaders for all that we have, as well as for the things and persons whom we were describing above.
-Why? he said; are they not capable of defending themselves?
-No, I said; not if we were right in the principle which was acknowledged by all of us when we were framing the State: the principle, as you will remember, was that one man cannot practise many arts with success.
-Very true, he said.
-But is not war an art?
-Certainly.
-And an art requiring as much attention as shoemaking?
-Quite true.
-And the shoemaker was not allowed by us to be husbandman, or a weaver, a builder -in order that we might have our shoes well made; but to him and to every other worker was assigned one work for which he was by nature fitted, and at that he was to continue working all his life long and at no other; he was not to let opportunities slip, and then he would become a good workman. Now nothing can be more important than that the work of a soldier should be well done. But is war an art so easily acquired that a man may be a warrior who is also a husbandman, or shoemaker, or other artisan; although no one in the world would be a good dice or draught player who merely took up the game as a recreation, and had not from his earliest years devoted himself to this and nothing else? No tools will make a man a skilled workman, or master of defence, nor be of any use to him who has not learned how to handle them, and has never bestowed any attention upon them. How then will he who takes up a shield or other implement of war become a good fighter all in a day, whether with heavy-armed or any other kind of troops?
-Yes, he said, the tools which would teach men their own use would be beyond price.
-And the higher the duties of the guardian, I said, the more time, and skill, and art, and application will be needed by him?
-No doubt, he replied.
-Will he not also require natural aptitude for his calling?
-Certainly.
-Then it will be our duty to select, if we can, natures which are fitted for the task of guarding the city?
-It will.
-And the selection will be no easy matter, I said; but we must be brave and do our best.
-We must.
-Is not the noble youth very like a well-bred dog in respect of guarding and watching? -What do you mean?
-I mean that both of them ought to be quick to see, and swift to overtake the enemy when they see him; and strong too if, when they have caught him, they have to fight with him.
-All these qualities, he replied, will certainly be required by them.
-Well, and your guardian must be brave if he is to fight well?
-Certainly.
-And is he likely to be brave who has no spirit, whether horse or dog or any other animal? Have you never observed how invincible and unconquerable is spirit and how the presence of it makes the soul of any creature to be absolutely fearless and indomitable?
-I have.
-Then now we have a clear notion of the bodily qualities which are required in the guardian.
-True.
-And also of the mental ones; his soul is to be full of spirit?
-Yes.
-But are not these spirited natures apt to be savage with one another, and with everybody else?
-A difficulty by no means easy to overcome, he replied.
-Whereas, I said, they ought to be dangerous to their enemies, and gentle to their friends; if not, they will destroy themselves without waiting for their enemies to destroy them.
-True, he said.
-What is to be done then? I said; how shall we find a gentle nature which has also a great spirit, for the one is the contradiction of the other?
-True.
-He will not be a good guardian who is wanting in either of these two qualities; and yet the combination of them appears to be impossible; and hence we must infer that to be a good guardian is impossible.
-I am afraid that what you say is true, he replied.
-Here feeling perplexed I began to think over what had preceded. My friend, I said, no wonder that we are in a perplexity; for we have lost sight of the image which we had before us.
-What do you mean? he said.
-I mean to say that there do exist natures gifted with those opposite qualities.
-And where do you find them?
-Many animals, I replied, furnish examples of them; our friend the dog is a very good one: you know that well-bred dogs are perfectly gentle to their familiars and acquaintances, and the reverse to strangers.
-Yes, I know.
-Then there is nothing impossible or out of the order of nature in our finding a guardian who has a similar combination of qualities?
-Certainly not.
-Would not he who is fitted to be a guardian, besides the spirited nature, need to have the qualities of a philosopher?
-I do not apprehend your meaning.
-The trait of which I am speaking, I replied, may be also seen in the dog, and is remarkable in the animal.
-What trait?
-Why, a dog, whenever he sees a stranger, is angry; when an acquaintance, he welcomes him, although the one has never done him any harm, nor the other any good. Did this never strike you as curious?
-The matter never struck me before; but I quite recognise the truth of your remark.
-Surely this instinct of the dog is very charming -your dog is a true philosopher.
-Why?
-Why, because he distinguishes the face of a friend and of an enemy only by the criterion of knowing and not knowing. And must not an animal be a lover of learning who determines what he likes and dislikes by the test of knowledge and ignorance?
-Most assuredly.
-And is not the love of learning the love of wisdom, which is philosophy?
-They are the same, he replied.
-And may we not say confidently of man also, that he who is likely to be gentle to his friends and acquaintances, must by nature be a lover of wisdom and knowledge?
-That we may safely affirm.
-Then he who is to be a really good and noble guardian of the State will require to unite in himself philosophy and spirit and swiftness and strength?
-Undoubtedly.
-Then we have found the desired natures; and now that we have found them, how are they to be reared and educated? Is not this enquiry which may be expected to throw light on the greater enquiry which is our final end -How do justice and injustice grow up in States? for we do not want either to omit what is to the point or to draw out the argument to an inconvenient length.
At the very point where have a picture of an open market city before our eyes, Plato introduces the need for luxuries and comforts, not in order to explain how this need can be satisfied by market transactions, but to suggest that their satisfaction will make people unhealthy-hence the need for more doctors-and also warlike: the "good life" can only be secured by exploiting others. Armies are needed, but they too must be made up of professional specialists. But these soldiers will not do any other work, so how can they live? And how can they be made to serve the city, rather than to exploit it? Plato's answer is that they must be incorporated into the ruling class and put under the strict control of a wise ruler. O course, they must remain full-time professionals, and that means, that they must be kept away from production, and especially trade. It is therefore-or so Plato would have us believe-an essential need of the city, that it has a ruling class, dedicated to military and political matters, but not involved in any way with economic activities. Indeed, trade, exchange, and communication are to be severely restricted. They are ways by means of which people order their affairs according to their own opinions and preferences. Consequently, they are likely to divert their attention from the tasks prescribed for them, and to weaken the control of the ruler.
Aristotle is even more outspoken in his hostility to trade and exchange than Plato. But he does accept the need for the division of labour in the same spirit as his teacher. His ideal form of political organisation is that of an aristocratic community in which every household is a complex economic unit, with slaves and servants supplying specialised labour under the direction of the pater familias. There is a certain measure of direct trade, mostly barter, among these economic units, but regular indirect exchange-trading present and future goods for money-is frowned upon. In chapter IX of Politics, Aristotle makes a distinction between natural acquisition, which is an acceptable part the management of a household, and unnatural acquisition, the art of "making money", which is to be condemned.
Moral objections to money-making and trade
There is another variety of the art of acquisition which is commonly and rightly called an art of wealth-getting, and has in fact suggested the notion that riches and property have no limit. Being nearly connected with the preceding, it is often identified with it. But though they are not very different, neither are they the same. The kind already described is given by nature, the other is gained by experience and art.
Let us begin our discussion of the question with the following considerations:
Of everything which we possess there are two uses: both belong to the thing as such, but not in the same manner, for one is the proper, and the other the improper or secondary use of it. For example, a shoe is used for wear, and is used for exchange; both are uses of the shoe. He who gives a shoe in exchange for money or food to him who wants one, does indeed use the shoe as a shoe, but this is not its proper or primary purpose, for a shoe is not made to be an object of barter. The same may be said of all possessions, for the art of exchange extends to all of them, and it arises at first from what is natural, from the circumstance that some have too little, others too much. Hence we may infer that retail trade is not a natural part of the art of getting wealth; had it been so, men would have ceased to exchange when they had enough. In the first community, indeed, which is the family, this art is obviously of no use, but it begins to be useful when the society increases. For the members of the family originally had all things in common; later, when the family divided into parts, the parts shared in many things, and different parts in different things, which they had to give in exchange for what they wanted, a kind of barter which is still practiced among barbarous nations who exchange with one another the necessaries of life and nothing more; giving and receiving wine, for example, in exchange for coin, and the like. This sort of barter is not part of the wealth-getting art and is not contrary to nature, but is needed for the satisfaction of men's natural wants. The other or more complex form of exchange grew, as might have been inferred, out of the simpler. When the inhabitants of one country became more dependent on those of another, and they imported what they needed, and exported what they had too much of, money necessarily came into use. For the various necessaries of life are not easily carried about, and hence men agreed to employ in their dealings with each other something which was intrinsically useful and easily applicable to the purposes of life, for example, iron, silver, and the like. Of this the value was at first measured simply by size and weight, but in process of time they put a stamp upon it, to save the trouble of weighing and to mark the value.
When the use of coin had once been discovered, out of the barter of necessary articles arose the other art of wealth getting, namely, retail trade; which was at first probably a simple matter, but became more complicated as soon as men learned by experience whence and by what exchanges the greatest profit might be made. Originating in the use of coin, the art of getting wealth is generally thought to be chiefly concerned with it, and to be the art which produces riches and wealth; having to consider how they may be accumulated. Indeed, riches is assumed by many to be only a quantity of coin, because the arts of getting wealth and retail trade are concerned with coin. Others maintain that coined money is a mere sham, a thing not natural, but conventional only, because, if the users substitute another commodity for it, it is worthless, and because it is not useful as a means to any of the necessities of life, and, indeed, he who is rich in coin may often be in want of necessary food. But how can that be wealth of which a man may have a great abundance and yet perish with hunger, like Midas in the fable, whose insatiable prayer turned everything that was set before him into gold? Hence men seek after a better notion of riches and of the art of getting wealth than the mere acquisition of coin, and they are right. For natural riches and the natural art of wealth-getting are a different thing; in their true form they are part of the management of a household; whereas retail trade is the art of producing wealth, not in every way, but by exchange. And it is thought to be concerned with coin; for coin is the unit of exchange and the measure or limit of it. And there is no bound to the riches which spring from this art of wealth getting. As in the art of medicine there is no limit to the pursuit of health, and as in the other arts there is no limit to the pursuit of their several ends, for they aim at accomplishing their ends to the uttermost (but of the means there is a limit, for the end is always the limit), so, too, in this art of wealth-getting there is no limit of the end, which is riches of the spurious kind, and the acquisition of wealth. But the art of wealthgetting which consists in household management, on the other hand, has a limit; the unlimited acquisition of wealth is not its business. And, therefore, in one point of view, all riches must have a limit; nevertheless, as a matter of fact, we find the opposite to be the case; for all getters of wealth increase their hoard of coin without limit. The source of the confusion is the near connection between the two kinds of wealth-getting; in either, the instrument is the same, although the use is different, and so they pass into one another; for each is a use of the same property, but with a difference: accumulation is the end in the one case, but there is a further end in the other. Hence some persons are led to believe that getting wealth is the object of household management, and the whole idea of their lives is that they ought either to increase their money without limit, or at any rate not to lose it. The origin of this disposition in men is that they are intent upon living only, and not upon living well; and, as their desires are unlimited they also desire that the means of gratifying them should be without limit. Those who do aim at a good life seek the means of obtaining bodily pleasures; and, since the enjoyment of these appears to depend on property, they are absorbed in getting wealth: and so there arises the second species of wealth-getting. For, as their enjoyment is in excess, they seek an art which produces the excess of enjoyment; and, if they are not able to supply their pleasures by the art of getting wealth, they try other arts, using in turn every faculty in a manner contrary to nature. The quality of courage, for example, is not intended to make wealth, but to inspire confidence; neither is this the aim of the general's or of the physician's art; but the one aims at victory and the other at health. Nevertheless, some men turn every quality or art into a means of getting wealth; this they conceive to be the end, and to the promotion of the end they think all things must contribute.
Thus, then, we have considered the art of wealth-getting which is unnecessary, and why men want it; and also the necessary art of wealth-getting, which we have seen to be different from the other, and to be a natural part of the art of managing a household, concerned with the provision of food, not, however, like the former kind, unlimited, but having a limit.
Utopian opposition to the rule of law
An potent source of opposition to the rule of law is utopianism. Utopia's are supposed to be much more perfect communities, even worlds. Typically, Utopia is a society in which everything is either common to all, or all are engaged in the same collective undertaking. It is a society in which all share the same opinions and preferences, free from conflict and rivalry, and-as if this were an evident consequence-free from want and misery.
The opposition of utopians and ascetics to natural law goes much farther than that of the political writers. While equally sceptical of trade and exchange, their anger is much more focused on the division of labour. The argument is partly moral-specialists tend to have a very particular, and partial, outlook on things, and are therefore much more likely to be narrow minded-but primarily metaphysical. Indeed, specialists are supposed to deny the full potential of the human being, by directing most of their efforts to the cultivation of only a few skills and talents, and by separating themselves even more clearly from their fellow men. As a consequence of this, they are no longer self-sufficient, but dependent on the co-operation of others-as the ascetics and utopian communists like to say: these specialists are slaves of the market, because they have to make their living by serving others.
The following excerpts from The German Ideology, Part I: Feuerbach, by Karl Marx and Friedrich Engels, demonstrate at once the overriding importance these utopians ascribe to the division of labour in explaining the human condition, and the religious fervour of their belief in the possibility of, and the need for, a liberation from its shackles.
Natural man, the slave of the division of labour
The original division of labour was the division of labour between the sexes in the act of copulation. After that came the division of labour based on natural faculties (e.g. physical power), needs, circumstances, etc. etc., as a spontaneous or natural consequence. But its effective divisive character emerges only with the division of manual and intellectual labour. ...
The important result is, that the power of production, the social condition, and conscious can and will come into conflict, because the division of labour calls forth the possibility, indeed the reality, of a distribution of labour under which those who do manual labour and those who do intellectual labour are different persons. This conflict between those who produce and enjoy real things and relationships, and those who produce pure theories and ideologies, which are expressions of a false consciousness of reality cannot be solved until the division of labour is again overcome.
...
The division of labour, in which all these contradictions and conflicts reside, rests on the natural division of labour within the family, and also on the division of society into separate, rivalrous families. It is at the same time the distribution of labour-the quantitatively and qualitatively unequal distribution of labour and its fruits, in other words: property, of which the germ and original form is, again, the family, with its master, the husband, and its slaves, the wife and the children. This form of slavery, be it ever so primitive and concealed, is nevertheless already fully in accord with the definition of modern economists, for whom property is the right to dispose of another's labour power. Besides, 'division of labour' and 'private property' signify the same thing, even if the former expression refers to human activity, and the latter to its product.
Furthermore, the division of labour implies the conflict between the particular interest of an individual or a family and the common interest of all individuals who are dealing with each other. ...
Finally, the division of labour is the first example of the fact that a man's own activity appears as an alien force over which he has no control, but which makes him into its slave. And this is true for as long as people live in natural society-i.e. as long as there is a conflict between particular and common interests, as long as man's work is not of his own choosing, but dictated by the natural division of labour. As soon as the division of labour comes into existence, everyone is forced into a particular, exclusive type of activity, from which there is no escape. He is hunter, fisherman, shepherd or critic and is forced to remain so, if he is to keep his means of existence.
On the other hand, in the communist society, where nobody has any particular exclusive sphere of work, and everybody can develop his talents in any way he wants, society takes care of general production, and thereby gives me the opportunity to do one thing today and another tomorrow, to go hunting in the moring, fishing in the afternoon, to raise cattle in the evening and to be critic after dinner, depending only on whether I want to do so or not-and yet I never have to become a hunter, a fisherman, shepherd or critic.
...
The division of labour implies social power: the multiplication of the powers of production, which is the outcome of the co-operation of many separate individuals. However, this social power appears not as a common, united power, but as an alien, external, incomprehensible and uncontrollable power that develops itself through different stages, independently of what people do or do not do. This is so because under the disvision of labour co-operation is not an act of will, but a natural necessity.
This attack on the division of labour and private property is an outright attack on natural man and natural society-on natural law. It goes beyond the discussion of the strictly economic merits of "capitalism" and "communism" to suggest that no genuine solution to the problems of human co-existence is possible, if that solution does not include a radical change of human nature. Not even the biological distinctions between the sexes or the intellectual and physical faculties, let alone the natural groupings of people into separate couples and families, can be left standing, because these are explicitly identified as the root causes of all social problems. It is difficult to comprehend the vehemence of the debates on Marxism in the twentieth century, unless we understand that he made himself the spokesman of a revolutionary religion that aims to "liberate" man by destroying all that has made human survival in this world possible.
The utopian rejection of law
For a long time utopia's remained in the realm of literary fiction, but in the nineteenth century many attempts were made to start utopian communities-most of them small, almost all of them short-lived. The great utopian era, however, is the twentieth century. Two major forms of utopian politics should be distinguished. The most spectacular is the totalitarianism of the Soviet Union and the People's Republic of China-both of them inspired by the German utopian communist, Karl Marx (1818-1883)-and Adolph Hitler's National Socialist Germany-the Third Reich, a conscious reference to the old Medieval vision of the millennium of the Third Era, when a new Earthly Paradise will come into existence. Common to all three is the attempt to forcibly control all aspects of social life, but especially the processes of production and distribution, by political means-the establishment of a Zwangsökonomie or command economy. The basic institutions of the economic method, property and contract, were dismantled or reduced to marginal aspects of social organisation. Respect for law, i.e. justice, had no place in the totalitarian strategies imposed on these countries and their satellites. They were massive experiments in utopian social engineering-attempts to forge a new society and a new man, and both of them would be on a far higher plane of development than anything the world had ever seen. Contrary to their leaders' utopian expectations, however, the destruction of the natural order did not lead to a flowering of human social potential, but to an economic, social, and cultural quagmire-and, in the case of Germany, to a mad military adventure and total devastation.
The other major form of utopian politics in the twentieth century was the welfare state, which arose in Western Europe, partly in response to the deep crisis of legitimacy of parliamentary democracy in the first half of the century. The nineteenth century attempts to create a Rechtsstaat had unravelled rapidly when its institutions became ever more politicised. Nevertheless the tradition of justice remained strong enough to keep totalitarianism and the wholesale destruction of the natural order of law at bay. However, it was not strong enough to prevent the emergence of a corporatist society in which more and more organised groups had enough power to use the legislative, administrative and fiscal powers of the state to their own particular advantage. Democracy, which is one thing in a Rechtsstaat, but quite another in a politicised state, appeared to many as either too weak to keep special interests in line, or as a main cause of the deterioration of politics into a "dirty business", a battle ground of special interests. The state was increasingly seen as the willing tool of whatever group got a hold on one of its many handles. Moreover, democracy had not averted the world war, and could neither prevent nor do much about the great depression of the nineteenthirties-in fact, there were many who saw that depression as a consequence of democratic politics itself, the general rush to the subsidies and easy credit which politicians used to buy votes.
In some countries corporatist interests were incorporated in a "strong authoritarian state", but in North America and Western Europe parliamentary democracy held firm. There the crisis of legitimacy was overcome by the good fortune of coming out of the second World War on the winning side, and, in Western Europe, by the onset of the long Cold War. The United States of America, carrying most of the military and diplomatic burdens of that conflict, exerted a moderating and unifying influence on European politics and re-invigorated European economies in various ways: from direct investment in the European economies to acting as the world's police force to protect trade routes and trading areas for Western interests.
However, the restoration of the legitimacy of politics also depended on the adoption on a large scale of welfare state policies. These promised to provide "security" against the major risks of life and provisions for general education, improved conditions of employment and housing, all of which had to be financed out of economic growth. The welfare state compromise rested on an uneasy balance between the major organised interest groups and the government, but it also supplied a broad, possibly spurious, consensus on a major, if only vaguely defined, social project. Utopian goals were introduced quite early, e.g. in the form of Roosevelt's Four Freedoms-which included the utopian freedom from want and fear-and later in numerous programmatic declarations, such as the World Health Organisation's explicitly utopian definition of health as "a state of complete physical, mental and social well-being". The latest utopian catchword is 'guaranteed basic income', which suggests the possibility of guaranteeing that everybody shall have sufficient means for a comfortable existence, regardless of circumstances, productive work, or personal virtue.
Thus, the final vision of the welfare state is essentially the same as in the Communist utopia's. It is the Marxian millennarian vision of a society in which everybody would be able to do what he wants, while society would take care of general production. However, the Western method for achieving it was to be very different from the Russian or Chinese: instead of totalitarian utopian engineering and the direct central planning of all the minutiae of daily life and work, the welfare state would rely on piecemeal engineering and indirect, or macro-economic, planning-i.e. on interventions in, rather than on elimination of, the market economy, and on controlling the fiscal, monetary and regulatory environment of economic decision making. It would also seek a "democratic legitimacy" for its programmes by guaranteeing a prominent role for elected politicians in an otherwise overwhelmingly technocratic and corporatist policy making process.
To the extent that welfare state policies implied a commitment to the market economy and its essential institutions of property and contract, welfare states continued to pay homage to the idea of law. On the side of production and distribution, markets continued to operate, albeit hampered by many fiscal, protectionist, corporatist, and "public interest" regulations-the latter being mainly concerned with zoning, health and safety. However, it rapidly became clear, that the utopian impetus of the welfare state was incompatible with justice or respect for law. On the welfare side, the human person rapidly lost his lawful standing, and control over his own life. Having had to fork over a significant part of his income to the state, a productive individual could then only wait and see if any, and how much, welfare or other state services would be made available to him-as an individual person he has no bargaining power at all, so that his existence becomes socially relevant only if he makes himself a member of some officially recognised pressure group (a political party, trade union, employers or home owners association) or of some officially recognised class of "victims of society". Most welfare policies involved extremely costly and complicated legal and administrative schemes, which required intrusive bureaucratic management of many aspects of life at home, at school, and at the place of work, with on-site inspections, extensive registration and legitimisation procedures, and so on. Like people in prison camps, who do not clamour for their freedom, but complain about their housing, food rations, and unfriendly treatment at the hands of the guards, large parts of the population, demoralised by two world wars and a world wide depression, settled into the welfare routines with relative equanimity, and appeared to accept its utopian ideology at face value.
The utopian attack on natural rights
To a large extent, people were manipulated by the state-acting for "the political majority"-in the interest of policy. Instead of persons in their own right, they became public resources to be managed by the state to enable it to finance the increasing number of publicly funded services. Of central importance for the utopian ideology of the welfare state was the fact, that these services were presented as fundamental "rights", not as what they ostensibly were: prizes for success in the political power struggle that could be lost in the next confrontation, or favours and hand-outs that could be revoked, diminished or redistributed according to the dictates of political expediency. These new "rights" were obviously incompatibility with natural rights. From the point of view of the individual person who is supposed to have them, they are essentially unrequited claims to the work and services produced by other persons-claims that are manifest violations of natural law. Moreover, they are not rights that the person who is supposed to hold them can personally and directly exercise: they must be exercised for him by the state, if, when, to the extent that, and for as long as the ruling coalition is willing to do so-and then for the price set by the political authorities. To call such things 'rights' is surely the ultimate in Orwellian Newspeak, but it apparently paid off in political terms.
Nevertheless it was impossible to pretend that the new "rights" were of the same kind as the natural rights. The latter were now preferably called classical or even first generation human rights, apparently to suggest that they belong to a by-gone age. The new "rights" were referred to as "social and economic rights"-as if natural rights, which embody the conditions of the peaceful, friendly co-existence of free persons are not eminently social and economic. Even more tendentiously, they were also called 'second generation human rights', a turn of phrase that suggests, not a radical break with, but a more advanced state of development of, human rights. In fact, however, they are not characteristically human rights at all, since they only apply to human beings the principles that had long been held to apply to the treatment of animals. In that sense, the new "rights" were all too obviously a transcription of the charter of the Society for the Protection of Animals. Thus, the doctrine of the social and economic rights bids states to "take care" of their subjects in the same way that people are enjoined to look well after the animals in their care: like pets and cattle, people have to be fed well, provided with comfortable and healthy dwellings and medical care, given the opportunity to stretch their legs and to rest, and so on.
Despite the fact that the new "rights" were codified, together with some vague echoes of natural rights, in the so-called Universal Declaration of Human Rights (1948), they are not universal rights-neither from the perspective of European tradition of justice, nor from the perspective of any other civilisation that has not embraced the recent upsurge of utopian mysticism. This is not a merely empirical, but a logical criticism of the new "rights". A simple thought experiment will prove the point.
Universal rights should at least be generators of order in all circumstances, including simple situations involving only a limited number of persons. Let us, therefore, consider the simplest case, involving only two persons-say, two people on an island. In such a situation, the so-called social and economic "rights" merely imply that either of these persons is entitled to force the other to supply it with food, shelter, education, paid holidays, and what not-there is no one else to enforce one's "rights" against the other. So, what sort of order is generated when our islanders try to exercise their "rights"? Either they get involved in a war, each trying to enforce his "right" against the other; or one of them quickly establishes himself as the Lord and Master of the Island; or they agree to live peacefully and friendly together as free persons, according to natural law.
Clearly, as the thought experiment shows, the great innovation of the "new rights", over and above natural law, is to provide "justifications" of war and domination: these conditions, incompatible with natural law, are obviously in accordance with the second generation human "rights". The analysis remains valid if we allow a third man on the island; it merely becomes more complicated because of the coalitions that might form. We even might have a democratic regime, with an elected Lord and Master of the Island-but that would still leave the conclusion of the thought experiment as it was. In fact, the conclusion holds if we allow a fourth, or a fifth man-or any number of men. However, if we make the situation complex enough, people will probably lose sight of the causal effects on them of anyone of them being guaranteed his "rights". It may begin to look as if they can claim these rights, not against identifiable real persons, but against an impersonal entity, "society", a fictive person that from any individual's point of view must appear to possess an inexhaustible supply of wealth-so that the social impact of any individual claim will seem to equal that of a drop in the ocean, even if makes a big difference for the individual in question.
The new "rights", then, were obviously not the rights of free persons. They were the legal implementations of programmes for dealing with-i.e. ruling-a subject population that in earlier decades of the century had become disturbingly disaffected. The main point to note is, that this kind of legal ordering of human affairs leaves no place for the natural person and his natural rights. At least from the legal perspective, the arrangement was a significant step towards the realisation of the utopian dream of doing away with natural man, the Old Adam-even if it remains questionable that this means that a New Man is ready to take his place.
Once the concepts of natural law and natural rights had been obfuscated by the advent of "second generation human rights", new developments could not long be contained-nothing spreads so rapidly as intellectual confusion hailed as a new orthodoxy. Third generation "human rights" began to appear in the form of "general interests", which everybody supposedly had a right to claim and enforce, regardless of any particular interest or "standing in law". The most significant area in which these latest "rights" came to fruition was environmental policy, but in many countries so-called anti-racist legislation and legislation dealing with immigration, prostitution or similar "social issues", defined other "public interests" that were to be protected, not by the application of principles of law, but by allowing everybody to sue anybody on the mere ground that one believes his actions are against the "public interest"-even if none of those who are materially or physically affected by those actions finds them objectionable, or worth the trouble of going to court.
Inevitably, such legislation provides an incentive for public posturing: you have to make sure you drum up sufficient media attention for your particular cause, so that no politician can safely deny that what you talk about is something the public is interested in-and that is, after all, the only operational definition of a "public interest" in a political system that has abandoned respect for law as its ruling principle. It should also be noted, that if it is said that in principle everybody should be able to sue in the "public interest", in practice the power to sue is usually reserved to privileged organisations-e.g. officially recognised, often subsided, but in other respects private, environmentalist organisations and lobbies. Thus standing in law is sacrificed to legal standing, and legal standing is more often than not a political privilege.
From the point of view of the philosophy of law, these so-called third generation "human rights" are premised on an outright denial of law. As one commentator put it in discussing the impact of environmentalist ideologists on international trade law: "In effect, [they] believe there are no boundaries-that what I do on my property affects everybody and is therefore subject to control". The point is, of course, not that something is subject to control if and when proof is given that it affects "everybody", but that everything is presumed to affect everything. Thus, it is in order to claim that something should not be subject to control, that one has to prove it does not affect anybody else. Obviously, no such proof can ever be given, if the mere fact, that someone protests against my doing something, is sufficient indication that it "affects" him.
The denial of the existence of boundaries is the ultimate utopian vision of unity: anyone's business is everybody's business-everybody is at all times and in all respects subject to legal censure by everybody else; everybody has a "right" to try to make everybody else serve his own "public" interests. Such a presumed "right" is, of course, a convenient starting point for attempts to justify political rule. But it is only in the utopian vision, that this "right" is unproblematic: the utopian aspect of the utopian vision is precisely, that everybody can freely exercise this "right", without thereby generating a relentless war of all against all.
'Ethics' and 'economics'
Because the means of action and production are scarce, choices become costly, at least to any one who is not completely indifferent as to what might happen to him. Except to one who is completely indifferent, scarcity therefore means that there is always a risk of making bad choices, i.e. choices that will result in giving up something of a higher value for something of a lower value. Managing one's resources (whether they are strictly personal, e.g. one's bodily faculties, or external to one's person, e.g. natural resources, foodstuff, water supplies, tools, money, and so on) is therefore a practical necessity of human life. The attempt to extract the highest yield (in terms of how one values different outcomes and activities) from one's resources is the particular object of economic analysis as well as of ethics. If one wishes to make a distinction between economics and ethics - as most moderns are likely to do - one may say that economics focuses on the problem of getting the most out of the available resources in terms of a given set of valuations, while ethics focuses on the fact that valuations are usually not simply and unalterably given, but somehow chosen (the choices being more or less free, more or less deliberate). Thus, whereas an economist will most likely comment on the appropriateness of the means and methods used to achieve a given end, an ethicist is likely to censure the ends pursued by an agent.
It is a fashionable dogma that "science can say nothing about ultimate ends". That belief underlies the opinion of many economists that while they are capable of doing science (because the appropriateness of a means or method for achieving a given end in given circumstances is supposedly an objective relation), ethics is not a science at all. However, ethics, properly understood, is no less concerned with objective relationships than economics. It is a common experience that people who have pursued a goal in the belief that achieving it will do them some good, make them happy or proud, eventually discover that having achieved the goal means nothing to them, or even makes them unhappy and dissatisfied with themselves. Or they might feel a sense of relief when it becomes clear that they cannot reach the goal they have set out to achieve, when in the mean time they have discovered that it was probably a bad goal to begin with. That is why ethics, at least since the days of Socrates, has stressed self-knowledge as the essential part of ethical knowledge, and hence of a science of ethics. While this may mean that ethical knowledge cannot readily be generalised from one person to the next, it certainly leaves it well within the sphere of objective, even empirically testable knowledge. Of course, on this understanding of the term, ethics accepts people as they are: it assumes that people are real entities with real properties, and therefore that people are not necessarily what they say or believe they are - and that what is good or bad for them is not necessarily what they say or believe is good for them. If people are real, if what they can be or do is objectively limited, then the idea of a most worthwhile life for them is no less 'objective' than any idea in economics.
The foregoing remarks focused on the individual person, and may therefore seem to be inspired by an individualistic conception of economics and ethics. However, economics and ethics can without difficulty we applied to all units of decision making, i.e. of making choices. In fact, both originally referred to the rather more than less autarkic family living on its own farm or in its own house. It is well-known that the word 'economy' is derived from the Greek for 'home' (oikos) and 'rule' or 'practice' (nomos). The Dutch words for 'economy' ('huishouding', literally: one's way of keeping house) and 'economics' ('huishoudkunde', literally: the art of keeping house) are particularly appropriate translations of these original ideas.
Interestingly, the word 'ethics' has a similar origin. In Classical Greece, at the time of Plato and Aristotle (4th century BC.), it was generally thought that ethical philosophy was concerned with the formation of character (čthos), and in particular with the role of customs or mores (éthos) in the formation of character. In particular, it was believed that the word for character was derived from the word for custom. Consequently, it was believed that ethics is concerned with the effects of morality, i.e. of getting instruction in, and knowledge of, the ways and customs of one's society. However, while 'éthos' appears rather late in the Greek language, 'čthos' is to be found already in Homer (who lived several centuries before the great philosophers, and wrote in a dialect that originated before the first millennium BC). In Homer, 'čthos' means 'house', 'dwelling', and the adjective 'čthikos' refers to whatever pertains to housekeeping. In this precise historical sense, one can therefore say that ethics and economics express our concern for the vital matters of practical life: to keep good house. While ethics appears to focus on the management of the human resources of the household (especially with a view to maintain its peaceful aspect), economics appears to concentrate more on the management of its material resources.
Taking into account these historical origins of our ideas of ethics and economics, we can also see that the latter are easily construed as master sciences - i.e. as sciences proper to whoever is the master, to whoever makes the decisions. For individualists, who believe that every individual person is his or her own master and therefore ought to be respected as such, every person is entitled to try get the most out of life. Consequently, from the individualists' perspective, every person is entitled to engage in a personal quest for economic and ethical enlightenment. Others, who see individuals as either masters or subjects of a master, are bound to deny any validity of economic or ethical conclusions when these do not reflect the masters' views on what is good for his own "house". For the classical philosophers of Ancient Greece, in particular for Plato and Aristotle, ethics and economics were the main branches of politics, the art of ruling cities. Their views survive unto this day, in the common belief that the state is a kind of house, and that the rulers (preferably democratically elected 'representatives') should take care of it. Again, the Dutch language testifies to the enduring strength of this tradition when it refers to economics as 'staathuishoudkunde' (literally: the art of keeping the house of the state).
The Old Testament gives us a vivid picture of this traditional view in the story of the Garden of Eden. It begins with the creation of the first man, Adam, whom God made out of clay for the express purpose of serving his Creator by working in His garden. Adam is the man-servant, and God is his master. The price Adam has to pay for his comfortable existence is blind obedience (Adam can hear God, but cannot see Him). Only God makes the decisions: all initiatives are supposed to originate in His word, because He alone has the knowledge and the ability to see opportunity and to appraise situations. The Biblical phrase which is now usually translated as 'the Lord' actually means 'the alert one' - and alertness is an obvious virtue for any decision maker or master. To underline the fundamental nature of human subservience, the story gives prominent place to the prohibition to eat from the tree of knowledge of good and evil, the knowledge a master has to have in order to make decisions.
Despite the modern emphasis on their distinction, it should be clear that economics and ethics address the same practical questions: How to get the most out of life? How to live well? What is the best thing to do? However, the historical origin of the words 'ethics' and 'economics' suggests, that they tend to view these problems from the perspective of [the masters or leaders of] a well-defined social entity or organisation (anything that resembles a household in having a definite hierarchical structure of command). For society at large, which has no such hierarchical structure, such a view is not appropriate: attempts to turn society at large into a kind of household, and to manage 'its' human and/or material resources, as if they were all engaged in a common enterprise, have not been among the most fortunate experiences of mankind. Managerial economists, trained to make organisations work efficiently, should recognise that society at large, 'the market', is not a business entity, but the social context in which business entities exist and interact. Ethicist should likewise recognise that society at large is not an entity to be governed by managerial principles, no matter how well-intentioned. Those who are aware of the distinction between an organisation and society at large have always tended to insist that the rule of law is the basis for social order, and that government or management (hence: economics and ethics) are aspects of particular organisations, but not of social order itself. Unfortunately, when 'law' is understood to refer, not to the necessary relations in the nature of things, but to the products of the governmental/managerial processes of legislation, the point of their insistence is lost.
Ethical syndromes
The commercial moral syndrome
Shun force
Come to voluntary agreements
Be honest
Collaborate easily with strangers and aliens
Compete
Respect contracts
Use initiative and enterprise
Be open to inventiveness and novelty
Be efficient
Promote comfort and convenience
Dissent for the sake of the task
Invest for productive purposes
Be industrious
Be thrifty
Be optimistic
The guardian moral syndrome
- Shun trade
- Take vengeance
- Treasure honour
- Be exclusive
- Be loyal
- Respect hierarchy
- Be obedient and disciplined
- Adhere to tradition
- Be ostentatious
- Exert prowess
- Deceive for the sake of the task
- Make rich use of leisure
- Show fortitude
- Dispense largesse
- Be fatalistic
An interesting application of the distinction between lawful and unlawful, or Oppenheimer's "economic" or "political", methods can be found in Jane Jacobs' Systems of Survival: A Dialogue on the Moral Foundations of Commerce and Politics (1992). Jacobs accepts the familiar position, that there are only two ways in which people can hope to achieve their goals, but she goes on to defend the thesis, that these contrasting methods of acting involve and depend for their integrity on contrasting ethical syndromes - groupings of ethical convictions that are usually found together, though with varying emphasis and qualifications. Trade or commerce is her paradigm for the lawful or economic method, politics for the unlawful or political method. Not questioning the usual opinion, that both methods are "necessary" for society, she sets out to inquire into the nature and effects of the corresponding ethical syndromes, the "commercial syndrome" and the "guardian syndrome". She lists the following ethical rules as representing their basic elements:
These "syndromes" are obviously mixed bags, and one wonders whether they are complete, or whether there are underlying principles that would allow a more systematic or deductive explication of them. However, these questions we leave aside. Jacobs' point is, that they are in any case clearly recognisable as opposites, that they represent radically divergent types of ethics, and that there is good reason for this. Thus, she argues (convincingly, I think) that when elements of the guardian syndrome creep into the moral outlook of traders, or elements of the commercial syndrome into the moral outlook of guardians, the result is bound to be negative: moral corruption becomes rampant, it will give rise to malfunctioning systems of trade, or politics. Some obvious examples come to mind. An organisation such as the Mafia, which is essentially a political or (in Jacobs' terminology) guardian-type organisation, have been forced by the state's monopoly of political power to seek refuge in the private economy, i.e. in "commercial" society, but since their activity is still guided by guardian ethics, it tends to corrupt commercial practices. Politicians and public administrators who are "on the take" may be said to bring commercial values into government: they are prime examples of corruption. Equally corruptive of the integrity of the guardian sphere are politicians and public administrators who want to make government more efficient by adopting a policy of "government by covenant" (i.e. by "making deals" with various groups who may be expected to want some advantages or privileges in return for their "voluntary compliance"), by collaborating easily with strangers and aliens when these have a competitive advantage over their own subjects, or by promoting comfort and convenience (for themselves or their subjects) rather obedience and discipline. Corruption of the commercial sphere often shows up in displays of largesse and ostentation (astronomical salaries for top managers, sponsoring, gifts to political parties, luxurious offices), rampant dishonesty and habitual deception justified with the guardian-type argument "that the end justifies the means", subordination of commercial goals to the rigidities of hierarchy, displays of "social responsibility" that mask the aspiration to a guardian role, fatalistic acceptance of risks that might fall heavily on others, and so on. Some industries are probably more vulnerable to corruption than others, perhaps because they are or were preferred places of employment for aristocrats (e.g. banking, which to a large extent has been made a part of governmental activities and has correspondingly enjoyed many privileges not available under common law).
It should be clear that Jacobs' guardian syndrome fits, and is inspired by, the ethical codes of warrior and ruling classes, aristocracies and royal courts. She makes a good case, that politicians, public administrators, and political activists of the present day and age still appeal to what is basically the same set of ethical rules. However, it is questionable to call this set 'the guardian syndrome'. It is not obvious that most people, when they hear the word 'guardian', immediately and before anything else think of warriors, rulers, politicians or civil servants, who rely in one way or another on the political use of force. Most people will probably associate the term with parents, priests, teachers and educators, trustees of charities, custodians of museums, perhaps doctors and nurses, lawyers and judges. No one, I suppose, will readily assume that "the guardian moral syndrome" as Jacobs describes it comes anywhere near a valid description of an appropriate ethical code for these guardians, except in respect of the rule to shun trade (or to "make deals"). And even with respect to this rule, "shun trade" does not translate into "be prepared to use force". The point is not trivial: it is of course true, that for a complex society both tradesmanship and guardianship are necessary, but it is by no means evident that the sort of guardianship that is socially necessary includes political guardianship or guardians whose distinctive characteristic is their reliance on the aggressive use of force. Even if it is true that there are only the two methods of achieving anything in a social context, it is a fallacy to assume, that because "commerce" is not appropriate for all the aspects of human life, it must be complemented by political guardianship . It is also a fallacy to assume, that what government cannot do must be left to the market (if by 'market' one understands, not the whole sphere of lawful action, but only the commercial sphere).
There is, then, reason to be careful with the labels Jane Jacobs uses to describe her two syndromes. Her guardian syndrome might better be called 'the ruler syndrome'. There is even more reason to insist on a separate discussion of genuine (private sector, lawful) guardianship. Classical treatises on political philosophy often had a chapter or two on "paternal power" and also on "the government of the church", but it is rare for a modern political philosopher or thinker to bother with these. The logically valid dichotomisation of human action in two categories (the lawful and the unlawful, the economic and the political) becomes a farce if the lawful or economic is narrowed down to the stuff students of Business Administration study, and the political is correspondingly broadened to include education, charitable work, care of the sick and infirm, and so on. This politicisation and bureaucratisation of nearly every guardian role is now endemic in Western Society (where it is known as the welfare state). As a consequence the so-called 'non-profit' sector is torn apart between those can only see its work as government business and those who at least understand that this is not the case but can then think of no other alternative than to run such guardian institutions as if these were selling consumer products. Many observers have complained about "the destruction" or "the atomisation of society", with reference to the present condition of traditional non-state guardian institutions. It would be an interesting research subject to find out how much public policy and the legal environment (both shaped in political institutions) have contributed to this state of affairs. A lot of research has been done into the corrupting effects of modelling, say, the family on rule (as was advocated by many theorists of the "patriarchal family" in the past). There is little reason to suppose that utter "contractualisation" of family life should be less corrupting.
We see here, that there is a real danger in using a logically derived dichotomy and then affixing to it inappropriate or arbitrarily restricted classes of empirical phenomena. Especially in view of the by now familiar opposition between "market" and "state" (the most recent, and possibly most misleading, version of our dichotomy), which seems to underlie most public policy discussions, it is important to remember that this pair of contrasting terms ultimately also derives from the distinction between the lawful and the unlawful, which is founded in natural law. Genuine guardianship is a perfectly lawful institution, it is not at all like political ruler; but neither is the ethics of guardianship the same as, or similar to, the ethics of a business manager.
Further Readings
Democracy
Plato, The Republic Book VIII
-Next comes democracy; of this the origin and nature have still to be considered by us; and then we will enquire into the ways of the democratic man, and bring him up for judgement.
-That, he said, is our method.
Well, I said, and how does the change from oligarchy into democracy arise? Is it not on this wise? -The good at which such a State alms is to become as rich as possible, a desire which is insatiable? What then? The rulers, being aware that their power rests upon their wealth, refuse to curtail by law the extravagance of the spendthrift youth because they gain by their ruin; they take interest from them and buy up their estates and thus increase their own wealth and importance?
-To be sure.
-There can be no doubt that the love of wealth and the spirit of moderation cannot exist together in citizens of the same State to any considerable extent; one or the other will be disregarded.
-That is tolerably clear.
-And in oligarchical States, from the general spread of carelessness and extravagance, men of good family have often been reduced to beggary?
-Yes, often.
-And still they remain in the city; there they are, ready to sting and fully armed, and some of them owe money, some have forfeited their citizenship; a third class are in both predicaments; and they hate and conspire against those who have got their property, and against everybody else, and are eager for revolution.
On the other hand, the men of business, stooping as they walk, and pretending not even to see those whom they have already ruined, insert their sting -that is, their money -into some one else who is not on his guard against them, and recover the parent sum many times over multiplied into a family of children: and so they make drone and pauper to abound in the State.
-Yes, he said, there are plenty of them -that is certain.
-The evil blazes up like a fire; and they will not extinguish it, either by restricting a man's use of his own property, or by another remedy?
-What other? One which is the next best, and has the advantage of compelling the citizens to look to their characters: -Let there be a general rule that every one shall enter into voluntary contracts at his own risk, and there will be less of this scandalous money-making, and the evils of which we were speaking will be greatly lessened in the State.
-Yes, they will be greatly lessened.
-At present the governors, induced by the motives which I have named, treat their subjects badly; while they and their adherents, especially the young men of the governing class, are habituated to lead a life of luxury and idleness both of body and mind; they do nothing, and are incapable of resisting either pleasure or pain.
They themselves care only for making money, and are as indifferent as the pauper to the cultivation of virtue.
-Such is the state of affairs which prevails among them. And often rulers and their subjects may come in one another's way, whether on a pilgrimage or a march, as fellow-soldiers or fellow-sailors; aye, and they may observe the behaviour of each other in the very moment of danger -for where danger is, there is no fear that the poor will be despised by the rich -and very likely the wiry sunburnt poor man may be placed in battle at the side of a wealthy one who has never spoilt his complexion and has plenty of superfluous flesh -when he sees such an one puffing and at his wit's end, how can he avoid drawing the conclusion that men like him are only rich because no one has the courage to despoil them? And when they meet in private will not people be saying to one another 'Our warriors are not good for much'?
-Yes, he said, I am quite aware that this is their way of talking.
-And, as in a body which is diseased the addition of a touch from without may bring on illness, and sometimes even when there is no external provocation a commotion may arise within-in the same way wherever there is weakness in the State there is also likely to be illness, of which the occasions may be very slight, the one party introducing from without their oligarchical, the other their democratical allies, and then the State falls sick, and is at war with herself; and may be at times distracted, even when there is no external cause.
And then democracy comes into being after the poor have conquered their opponents, slaughtering some and banishing some, while to the remainder they give an equal share of freedom and power; and this is the form of government in which the magistrates are commonly elected by lot.
-Yes, he said, that is the nature of democracy, whether the revolution has been effected by arms, or whether fear has caused the opposite party to withdraw.
-And now what is their manner of life, and what sort of a government have they? for as the government is, such will be the man. In the first place, are they not free; and is not the city full of freedom and frankness -a man may say and do what he likes?
-'Tis said so, he replied.
-And where freedom is, the individual is clearly able to order for himself his own life as he pleases. Then in this kind of State there will be the greatest variety of human natures. This, then, seems likely to be the fairest of States, being an embroidered robe which is spangled with every sort of flower. And just as women and children think a variety of colours to be of all things most charming, so there are many men to whom this State, which is spangled with the manners and characters of mankind, will appear to be the fairest of States. Yes, my good Sir, and there will be no better in which to look for a government.
-Why?
-Because of the liberty which reigns there -they have a complete assortment of constitutions; and he who has a mind to establish a State, as we have been doing, must go to a democracy as he would to a bazaar at which they sell them, and pick out the one that suits him; then, when he has made his choice, he may found his State.
-He will be sure to have patterns enough.
-And there being no necessity, I said, for you to govern in this State, even if you have the capacity, or to be governed, unless you like, or go to war when the rest go to war, or to be at peace when others are at peace, unless you are so disposed -there being no necessity also, because some law forbids you to hold office or be a dicast, that you should not hold office or be a dicast, if you have a fancy -is not this a way of life which for the moment is supremely delightful?
-For the moment, yes.
-And is not their humanity to the condemned in some cases quite charming? Have you not observed how, in a democracy, many persons, although they have been sentenced to death or exile, just stay where they are and walk about the world-the gentleman parades like a hero, and nobody sees or cares?
-Yes, he replied, many and many a one.
-See too, I said, the forgiving spirit of democracy, and the 'don't care' about trifles, and the disregard which she shows of all the fine principles which we solemnly laid down at the foundation of the city -as when we said that, except in the case of some rarely gifted nature, there never will be a good man who has not from his childhood been used to play amid things of beauty and make of them a joy and a study -how grandly does she trample all these fine notions of ours under her feet, never giving a thought to the pursuits which make a statesman, and promoting to honour any one who professes to be the people's friend.
-Yes, she is of a noble spirit.
-These and other kindred characteristics are proper to democracy, which is a charming form of government, full of variety and disorder, and dispensing a sort of equality to equals and unequals alike.
-We know her well.
-Consider now, I said, what manner of man the individual is, or rather consider, as in the case of the State, how he comes into being.
-Very good, he said.
-Is not this the way-he is the son of the miserly and oligarchical father who has trained him in his own habits? And, obviously, like his father, he keeps under by force the pleasures which are of the spending and not of the getting sort, being those which are called unnecessary.
Would you like, for the sake of clearness, to distinguish which are the necessary and which are the unnecessary pleasures?
-I should.
-Are not necessary pleasures those of which we cannot get rid, and of which the satisfaction is a benefit to us? And they are rightly so, because we are framed by nature to desire both what is beneficial and what is necessary, and cannot help it. And the desires of which a man may get rid, if he takes pains from his youth upwards -of which the presence, moreover, does no good, and in some cases the reverse of good -shall we not be right in saying that all these are unnecessary?
-Yes, certainly.
-Suppose we select an example of either kind, in order that we may have a general notion of them. Will not the desire of eating, that is, of simple food and condiments, in so far as they are required for health and strength, be of the necessary class? The pleasure of eating is necessary in two ways; it does us good and it is essential to the continuance of life. But the condiments are only necessary in so far as they are good for health?
-Certainly.
-And the desire which goes beyond this, or more delicate food, or other luxuries, which might generally be got rid of, if controlled and trained in youth, and is hurtful to the body, and hurtful to the soul in the pursuit of wisdom and virtue, may be rightly called unnecessary. May we not say that these desires spend, and that the others make money because they conduce to production? Is it not the same for the pleasures of love, and all other pleasures?
-And the drone of whom we spoke was is overflowing with these unnecessary pleasures and desires of this sort, of which he is the slave. But is not he who is subject to the necessary desires only a miserly, oligarchical type?
-Very true.
-Again, let us see how the democratical man grows out of the oligarchical: the following, as I suspect, is commonly the process. When a young man who has been brought up as we were just now describing, in a vulgar and miserly way, has tasted drones' honey and has come to associate with fierce and crafty natures who are able to provide for him all sorts of refinements and varieties of pleasure -then, as you may imagine, the change will begin of the oligarchical principle within him into the democratical?
-Inevitably.
-And as in the city like was helping like, and the change was effected by an alliance from without assisting one division of the citizens, so too the young man is changed by a class of desires coming from without to assist the desires within him, that which is and alike again helping that which is akin and alike. And if there be any ally which aids the oligarchical principle within him, whether the influence of a father or of kindred, advising or rebuking him, then there arises in his soul a faction and an opposite faction, and he goes to war with himself. And there are times when the democratical principle gives way to the oligarchical, and some of his desires die, and others are banished; a spirit of reverence enters into the young man's soul and order is restored.
-Yes, he said, that sometimes happens.
-And then, again, after the old desires have been driven out, fresh ones spring up, which are akin to them, and because he, their father, does not know how to educate them, wax fierce and numerous.
-Yes, he said, that is apt to be the way.
-They draw him to his old associates, and holding secret intercourse with them, breed and multiply in him. At length they seize upon the citadel of the young man's soul, which they perceive to be void of all accomplishments and fair pursuits and true words, which make their abode in the minds of men who are dear to the gods, and are their best guardians and sentinels.
-None better.
-False and boastful conceits and phrases mount upwards and take their place.
-They are certain to do so.
-And so the young man returns into the country of the lotus-eaters, and takes up his dwelling there in the face of all men; and if any help be sent by his friends to the oligarchical part of him, the aforesaid vain conceits shut the gate of the king's fastness; and they will neither allow the embassy itself to enter, private if private advisers offer the fatherly counsel of the aged will they listen to them or receive them. There is a battle and they gain the day, and then modesty, which they call silliness, is ignominiously thrust into exile by them, and temperance, which they nickname unmanliness, is trampled in the mire and cast forth; they persuade men that moderation and orderly expenditure are vulgarity and meanness, and so, by the help of a rabble of evil appetites, they drive them beyond the border.
-Yes, with a will.
-And when they have emptied and swept clean the soul of him who is now in their power and who is being initiated by them in great mysteries, the next thing is to bring back to their house insolence and anarchy and waste and impudence in bright array having garlands on their heads, and a great company with them, hymning their praises and calling them by sweet names; insolence they term breeding, and anarchy liberty, and waste magnificence, and impudence courage.
-And so the young man passes out of his original nature, which was trained in the school of necessity, into the freedom and libertinism of useless and unnecessary pleasures.
-Yes, he said, the change in him is visible enough.
-After this he lives on, spending his money and labour and time on unnecessary pleasures quite as much as on necessary ones; but if he be fortunate, and is not too much disordered in his wits, when years have elapsed, and the heyday of passion is over -supposing that he then re-admits into the city some part of the exiled virtues, and does not wholly give himself up to their successors -in that case he balances his pleasures and lives in a sort of equilibrium, putting the government of himself into the hands of the one which comes first and wins the turn; and when he has had enough of that, then into the hands of another; he despises none of them but encourages them all equally.
-Very true, he said.
-Neither does he receive or let pass into the fortress any true word of advice; if any one says to him that some pleasures are the satisfactions of good and noble desires, and others of evil desires, and that he ought to use and honour some and chastise and master the others -whenever this is repeated to him he shakes his head and says that they are all alike, and that one is as good as another.
-Yes, he said; that is the way with him.
-Yes, I said, he lives from day to day indulging the appetite of the hour; and sometimes he is lapped in drink and strains of the flute; then he becomes a waterdrinker, and tries to get thin; then he takes a turn at gymnastics; sometimes idling and neglecting everything, then once more living the life of a philosopher; often he-is busy with politics, and starts to his feet and says and does whatever comes into his head; and, if he is emulous of any one who is a warrior, off he is in that direction, or of men of business, once more in that. His life has neither law nor order; and this distracted existence he terms joy and bliss and freedom; and so he goes on.
-Yes, he replied, he is all liberty and equality.
-Yes, I said; his life is motley and manifold and an epitome of the lives of many; -he answers to the State which we described as fair and spangled. And many a man and many a woman will take him for their pattern, and many a constitution and many an example of manners is contained in him.
-Just so.
-Let him then be set over against democracy; he may truly be called the democratic man .
Aristotle on democracy
Aristotle, Politics, Book III
Chapter 7
Having determined these points, we have next to consider how many forms of government there are, and what they are; and in the first place what are the true forms, for when they are determined the perversions of them will at once be apparent. The words constitution and government have the same meaning, and the government, which is the supreme authority in states, must be in the hands of one, or of a few, or of the many. The true forms of government, therefore, are those in which the one, or the few, or the many, govern with a view to the common interest; but governments which rule with a view to the private interest, whether of the one or of the few, or of the many, are perversions. For the members of a state, if they are truly citizens, ought to participate in its advantages. Of forms of government in which one rules, we call that which regards the common interests, kingship or royalty; that in which more than one, but not many, rule, aristocracy; and it is so called, either because the rulers are the best men, or because they have at heart the best interests of the state and of the citizens. But when the citizens at large administer the state for the common interest, the government is called by the generic name- a constitution. And there is a reason for this use of language. One man or a few may excel in virtue; but as the number increases it becomes more difficult for them to attain perfection in every kind of virtue, though they may in military virtue, for this is found in the masses. Hence in a constitutional government the fighting-men have the supreme power, and those who possess arms are the citizens.
Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.
Chapter 8
But there are difficulties about these forms of government, and it will therefore be necessary to state a little more at length the nature of each of them. For he who would make a philosophical study of the various sciences, and does not regard practice only, ought not to overlook or omit anything, but to set forth the truth in every particular. Tyranny, as I was saying, is monarchy exercising the rule of a master over the political society; oligarchy is when men of property have the government in their hands; democracy, the opposite, when the indigent, and not the men of property, are the rulers. And here arises the first of our difficulties, and it relates to the distinction drawn. For democracy is said to be the government of the many. But what if the many are men of property and have the power in their hands? In like manner oligarchy is said to be the government of the few; but what if the poor are fewer than the rich, and have the power in their hands because they are stronger? In these cases the distinction which we have drawn between these different forms of government would no longer hold good.
Suppose, once more, that we add wealth to the few and poverty to the many, and name the governments accordingly- an oligarchy is said to be that in which the few and the wealthy, and a democracy that in which the many and the poor are the rulers- there will still be a difficulty. For, if the only forms of government are the ones already mentioned, how shall we describe those other governments also just mentioned by us, in which the rich are the more numerous and the poor are the fewer, and both govern in their respective states?
The argument seems to show that, whether in oligarchies or in democracies, the number of the governing body, whether the greater number, as in a democracy, or the smaller number, as in an oligarchy, is an accident due to the fact that the rich everywhere are few, and the poor numerous. But if so, there is a misapprehension of the causes of the difference between them. For the real difference between democracy and oligarchy is poverty and wealth. Wherever men rule by reason of their wealth, whether they be few or many, that is an oligarchy, and where the poor rule, that is a democracy. But as a fact the rich are few and the poor many; for few are well-to-do, whereas freedom is enjoyed by an, and wealth and freedom are the grounds on which the oligarchical and democratical parties respectively claim power in the state.
Aristotle, Politics, Book IV
Chapter 2
In our original discussion about governments we divided them into three true forms: kingly rule, aristocracy, and constitutional government, and three corresponding perversions- tyranny, oligarchy, and democracy. Of kingly rule and of aristocracy, we have already spoken, for the inquiry into the perfect state is the same thing with the discussion of the two forms thus named, since both imply a principle of virtue provided with external means. We have already determined in what aristocracy and kingly rule differ from one another, and when the latter should be established. In what follows we have to describe the so-called constitutional government, which bears the common name of all constitutions, and the other forms, tyranny, oligarchy, and democracy.
It is obvious which of the three perversions is the worst, and which is the next in badness. That which is the perversion of the first and most divine is necessarily the worst. And just as a royal rule, if not a mere name, must exist by virtue of some great personal superiority in the king, so tyranny, which is the worst of governments, is necessarily the farthest removed from a well-constituted form; oligarchy is little better, for it is a long way from aristocracy, and democracy is the most tolerable of the three.
A writer who preceded me has already made these distinctions, but his point of view is not the same as mine. For he lays down the principle that when all the constitutions are good (the oligarchy and the rest being virtuous), democracy is the worst, but the best when all are bad. Whereas we maintain that they are in any case defective, and that one oligarchy is not to be accounted better than another, but only less bad.
Not to pursue this question further at present, let us begin by determining (1) how many varieties of constitution there are (since of democracy and oligarchy there are several): (2) what constitution is the most generally acceptable, and what is eligible in the next degree after the perfect state; and besides this what other there is which is aristocratical and well-constituted, and at the same time adapted to states in general; (3) of the other forms of government to whom each is suited. For democracy may meet the needs of some better than oligarchy, and conversely. In the next place (4) we have to consider in what manner a man ought to proceed who desires to establish some one among these various forms, whether of democracy or of oligarchy; and lastly, (5) having briefly discussed these subjects to the best of our power, we will endeavor to ascertain the modes of ruin and preservation both of constitutions generally and of each separately, and to what causes they are to be attributed.
Chapter 3
The reason why there are many forms of government is that every state contains many elements. In the first place we see that all states are made up of families, and in the multitude of citizen there must be some rich and some poor, and some in a middle condition; the rich are heavy-armed, and the poor not. Of the common people, some are husbandmen, and some traders, and some artisans.
There are also among the notables differences of wealth and property- for example, in the number of horses which they keep, for they cannot afford to keep them unless they are rich. And therefore in old times the cities whose strength lay in their cavalry were oligarchies, and they used cavalry in wars against their neighbors; as was the practice of the Eretrians and Chalcidians, and also of the Magnesians on the river Maeander, and of other peoples in Asia. Besides differences of wealth there are differences of rank and merit, and there are some other elements which were mentioned by us when in treating of aristocracy we enumerated the essentials of a state. Of these elements, sometimes all, sometimes the lesser and sometimes the greater number, have a share in the government. It is evident then that there must be many forms of government, differing in kind, since the parts of which they are composed differ from each other in kind. For a constitution is an organization of offices, which all the citizens distribute among themselves, according to the power which different classes possess, for example the rich or the poor, or according to some principle of equality which includes both. There must therefore be as many forms of government as there are modes of arranging the offices, according to the superiorities and differences of the parts of the state.
There are generally thought to be two principal forms: as men say of the winds that there are but two- north and south, and that the rest of them are only variations of these, so of governments there are said to be only two forms- democracy and oligarchy. For aristocracy is considered to be a kind of oligarchy, as being the rule of a few, and the so-called constitutional government to be really a democracy, just as among the winds we make the west a variation of the north, and the east of the south wind. Similarly of musical modes there are said to be two kinds, the Dorian and the Phrygian; the other arrangements of the scale are comprehended under one or other of these two. About forms of government this is a very favorite notion. But in either case the better and more exact way is to distinguish, as I have done, the one or two which are true forms, and to regard the others as perversions, whether of the most perfectly attempered mode or of the best form of government: we may compare the severer and more overpowering modes to the oligarchical forms, and the more relaxed and gentler ones to the democratic.
Chapter 4
It must not be assumed, as some are fond of saying, that democracy is simply that form of government in which the greater number are sovereign, for in oligarchies, and indeed in every government, the majority rules; nor again is oligarchy that form of government in which a few are sovereign. Suppose the whole population of a city to be 1300, and that of these 1000 are rich, and do not allow the remaining 300 who are poor, but free, and in an other respects their equals, a share of the government- no one will say that this is a democracy. In like manner, if the poor were few and the masters of the rich who outnumber them, no one would ever call such a government, in which the rich majority have no share of office, an oligarchy. Therefore we should rather say that democracy is the form of government in which the free are rulers, and oligarchy in which the rich; it is only an accident that the free are the many and the rich are the few. Otherwise a government in which the offices were given according to stature, as is said to be the case in Ethiopia, or according to beauty, would be an oligarchy; for the number of tall or good-looking men is small. And yet oligarchy and democracy are not sufficiently distinguished merely by these two characteristics of wealth and freedom. Both of them contain many other elements, and therefore we must carry our analysis further, and say that the government is not a democracy in which the freemen, being few in number, rule over the many who are not free, as at Apollonia, on the Ionian Gulf, and at Thera; (for in each of these states the nobles, who were also the earliest settlers, were held in chief honor, although they were but a few out of many). Neither is it a democracy when the rich have the government because they exceed in number; as was the case formerly at Colophon, where the bulk of the inhabitants were possessed of large property before the Lydian War.
But the form of government is a democracy when the free, who are also poor and the majority, govern, and an oligarchy when the rich and the noble govern, they being at the same time few in number.
I have said that there are many forms of government, and have explained to what causes the variety is due. Why there are more than those already mentioned, and what they are, and whence they arise, I will now proceed to consider, starting from the principle already admitted, which is that every state consists, not of one, but of many parts. If we were going to speak of the different species of animals, we should first of all determine the organs which are indispensable to every animal, as for example some organs of sense and the instruments of receiving and digesting food, such as the mouth and the stomach, besides organs of locomotion.
Assuming now that there are only so many kinds of organs, but that there may be differences in them- I mean different kinds of mouths, and stomachs, and perceptive and locomotive organs- the possible combinations of these differences will necessarily furnish many variedes of animals. (For animals cannot be the same which have different kinds of mouths or of ears.) And when all the combinations are exhausted, there will be as many sorts of animals as there are combinations of the necessary organs. The same, then, is true of the forms of government which have been described; states, as I have repeatedly said, are composed, not of one, but of many elements. One element is the food-producing class, who are called husbandmen; a second, the class of mechanics who practice the arts without which a city cannot exist; of these arts some are absolutely necessary, others contribute to luxury or to the grace of life. The third class is that of traders, and by traders I mean those who are engaged in buying and selling, whether in commerce or in retail trade. A fourth class is that of the serfs or laborers. The warriors make up the fifth class, and they are as necessary as any of the others, if the country is not to be the slave of every invader. For how can a state which has any title to the name be of a slavish nature? The state is independent and self-sufficing, but a slave is the reverse of independent. Hence we see that this subject, though ingeniously, has not been satisfactorily treated in the Republic. Socrates says that a state is made up of four sorts of people who are absolutely necessary; these are a weaver, a husbandman, a shoemaker, and a builder; afterwards, finding that they are not enough, he adds a smith, and again a herdsman, to look after the necessary animals; then a merchant, and then a retail trader. All these together form the complement of the first state, as if a state were established merely to supply the necessaries of life, rather than for the sake of the good, or stood equally in need of shoemakers and of husbandmen. But he does not admit into the state a military class until the country has increased in size, and is beginning to encroach on its neighbor's land, whereupon they go to war. Yet even amongst his four original citizens, or whatever be the number of those whom he associates in the state, there must be some one who will dispense justice and determine what is just. And as the soul may be said to be more truly part of an animal than the body, so the higher parts of states, that is to say, the warrior class, the class engaged in the administration of justice, and that engaged in deliberation, which is the special business of political common sense-these are more essential to the state than the parts which minister to the necessaries of life. Whether their several functions are the functions of different citizens, or of the same- for it may often happen that the same persons are both warriors and husbandmen- is immaterial to the argument. The higher as well as the lower elements are to be equally considered parts of the state, and if so, the military element at any rate must be included. There are also the wealthy who minister to the state with their property; these form the seventh class. The eighth class is that of magistrates and of officers; for the state cannot exist without rulers. And therefore some must be able to take office and to serve the state, either always or in turn. There only remains the class of those who deliberate and who judge between disputants; we were just now distinguishing them. If presence of all these elements, and their fair and equitable organization, is necessary to states, then there must also be persons who have the ability of statesmen. Different functions appear to be often combined in the same individual; for example, the warrior may also be a husbandman, or an artisan; or, again, the councillor a judge. And all claim to possess political ability, and think that they are quite competent to fill most offices. But the same persons cannot be rich and poor at the same time. For this reason the rich and the poor are regarded in an especial sense as parts of a state. Again, because the rich are generally few in number, while the poor are many, they appear to be antagonistic, and as the one or the other prevails they form the government. Hence arises the common opinion that there are two kinds of government- democracy and oligarchy.
I have already explained that there are many forms of constitution, and to what causes the variety is due. Let me now show that there are different forms both of democracy and oligarchy, as will indeed be evident from what has preceded. For both in the common people and in the notables various classes are included; of the common people, one class are husbandmen, another artisans; another traders, who are employed in buying and selling; another are the seafaring class, whether engaged in war or in trade, as ferrymen or as fishermen. (In many places any one of these classes forms quite a large population; for example, fishermen at Tarentum and Byzantium, crews of triremes at Athens, merchant seamen at Aegina and Chios, ferrymen at Tenedos.) To the classes already mentioned may be added day-laborers, and those who, owing to their needy circumstances, have no leisure, or those who are not of free birth on both sides; and there may be other classes as well. The notables again may be divided according to their wealth, birth, virtue, education, and similar differences.
Of forms of democracy first comes that which is said to be based strictly on equality. In such a democracy the law says that it is just for the poor to have no more advantage than the rich; and that neither should be masters, but both equal.
For if liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost. And since the people are the majority, and the opinion of the majority is decisive, such a government must necessarily be a democracy. Here then is one sort of democracy. There is another, in which the magistrates are elected according to a certain property qualification, but a low one; he who has the required amount of property has a share in the government, but he who loses his property loses his rights. Another kind is that in which all the citizens who are under no disqualification share in the government, but still the law is supreme. In another, everybody, if he be only a citizen, is admitted to the government, but the law is supreme as before. A fifth form of democracy, in other respects the same, is that in which, not the law, but the multitude, have the supreme power, and supersede the law by their decrees. This is a state of affairs brought about by the demagogues. For in democracies which are subject to the law the best citizens hold the first place, and there are no demagogues; but where the laws are not supreme, there demagogues spring up. For the people becomes a monarch, and is many in one; and the many have the power in their hands, not as individuals, but collectively. Homer says that 'it is not good to have a rule of many,' but whether he means this corporate rule, or the rule of many individuals, is uncertain. At all events this sort of democracy, which is now a monarch, and no longer under the control of law, seeks to exercise monarchical sway, and grows into a despot; the flatterer is held in honor; this sort of democracy being relatively to other democracies what tyranny is to other forms of monarchy. The spirit of both is the same, and they alike exercise a despotic rule over the better citizens. The decrees of the demos correspond to the edicts of the tyrant; and the demagogue is to the one what the flatterer is to the other. Both have great power; the flatterer with the tyrant, the demagogue with democracies of the kind which we are describing. The demagogues make the decrees of the people override the laws, by referring all things to the popular assembly. And therefore they grow great, because the people have an things in their hands, and they hold in their hands the votes of the people, who are too ready to listen to them. Further, those who have any complaint to bring against the magistrates say, 'Let the people be judges'; the people are too happy to accept the invitation; and so the authority of every office is undermined. Such a democracy is fairly open to the objection that it is not a constitution at all; for where the laws have no authority, there is no constitution. The law ought to be supreme over all, and the magistracies should judge of particulars, and only this should be considered a constitution. So that if democracy be a real form of government, the sort of system in which all things are regulated by decrees is clearly not even a democracy in the true sense of the word, for decrees relate only to particulars.
These then are the different kinds of democracy.
Bastiat on the right to vote
If, as the republicans of our present-day Greek and Roman schools of thought pretend, the right of suffrage arrives with one's birth, it would be an injustice for adults to prevent women and children from voting. Why are they prevented? Because they are presumed to be incapable. And why is incapacity a motive for exclusion? Because it is not the voter alone who suffers the consequences of his vote; because each vote touches and affects everyone in the entire community; because the people in the community have a right to demand some safeguards concerning the acts upon which their welfare and existence depend.
Restrict the law
I know what might be said in answer to this; what the objections might be.
But this is not the place to exhaust a controversy of this nature. I wish merely to observe here that this controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be.
In fact, if law were restricted to protecting all persons, all liberties, and all properties; if law were nothing more than the organized combination of the individual's right to self defence; if law were the obstacle, the check, the punisher of all oppression and plunder-is it likely that we citizens would then argue much about the extent of the franchise? Under these circumstances, is it likely that the extent of the right to vote would endanger that supreme good, the public peace? Is it likely that the excluded classes would refuse to peaceably await the coming of their right to vote? Is it likely that those who had the right to vote would jealously defend their privilege? If the law were confined to its proper functions, everyone's interest in the law would be the same. Is it not clear that, under these circumstances, those who voted could not inconvenience those who did not vote?
The fatal idea of legal plunder
But on the other hand, imagine that this fatal principle has been introduced:
Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few-whether farmers, manufacturers, shipowners, artists, or comedians. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so.
The excluded classes will furiously demand their right to vote-and will overthrow society rather than not to obtain it. Even beggars and vagabonds will then prove to you that they also have an incontestable title to vote. They will say to you:
"We cannot buy wine, tobacco, or salt without paying the tax. And a part of the tax that we pay is given by law -in privileges and subsidies-to men who are richer than we are. Others use the law to raise the prices of bread, meat, iron, or cloth. Thus, since everyone else uses the law for his own profit, we also would like to use the law for our own profit. We demand from the law the right to relief, which is the poor man's plunder. To obtain this right, we also should be voters and legislators in order that we may organize Beggary on a grand scale for our own class, as you have organized Protection on a grand scale for your class. Now don't tell us beggars that you will act for us, and then toss us, as Mr. Mimerel proposes, 600,000 francs to keep us quiet, like throwing us a bone to gnaw. We have other claims. And anyway, we wish to bargain for ourselves as other classes have bargained for themselves!" And what can you say to answer that argument!
Perverted law causes conflict
As long as it is admitted that the law may be diverted from its true purposethat it may violate property instead of protecting it-then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious. To know this, it is hardly necessary to examine what transpires in the French and English legislatures; merely to understand the issue is to know the answer.
Is there any need to offer proof that this odious perversion of the law is a perpetual source of hatred and discord; that it tends to destroy society itself? If such proof is needed, look at the United States [in 1850]. There is no country in the world where the law is kept more within its proper domain: the protection of every person's liberty and property. As a consequence of this, there appears to be no country in the world where the social order rests on a firmer foundation. But even in the United States, there are two issues-and only two-that have always endangered the public peace. -
Slavery and tariffs are plunder
What are these two issues? They are slavery and tariffs. These are the only two issues where, contrary to the general spirit of the republic of the United States, law has assumed the character of a plunderer.
Slavery is a violation, by law, of liberty. The protective tariff is a violation, by law, of property.
It is a most remarkable fact that this double legal crime -a sorrowful inheritance from the Old World-should be the only issue which can, and perhaps will, lead to the ruin of the Union. It is indeed impossible to imagine, at the very heart of a society, a more astounding fact than this: The law has come to be an instrument of injustice. And if this fact brings terrible consequences to the United States-where the proper purpose of the law has been perverted only in the instances of slavery and tariffs-what must be the consequences in Europe, where the perversion of the law is a principle; a system?Classical theories of justice
Aristotle on Justice
Aristotle (384-322 BC), whom Dante called "the master of those who know," is said to have reflected on every subject which came within the range of ancient thought. The excerpts below are from the fifth book, On Justice, of the Nichomachean ethics (350 BC). In the ten books of this treatise. His starting point is, that the aim of all action is the Good. For him, the Good is a mean between two extremes, between too little of something and too much of it. Thus, virtue is to be found in balance and moderation.
Even today, in discussions on justice, the influence of Aristotle is prominent. Much of the confusion that continues to reign on the subject is due to his insistence that justice "in general" is the sum of the moral or social virtues, while at the same time being a particular virtue. The result of this treatment is, that the peculiarity of justice is obscured, and, especially, that it is made to seem as proper to enforce any virtue as it is to enforce justice or respect for law. This is an essential argument for Aristotle's thesis, developed in another work, The Politics, that the proper task of politics-i.e. of political rule-is to make men virtuous, i.e. just in the general sense. In other words: the enforcement of a morality of virtue is what political rule is all about, not the enforcement of law as such. Moreover, Aristotle equates respect for law-i.e. justice in the ordinary sense-with respect for "the results of the legislative art", i.e. the laws or leges. And this is in turn equated with general justice, "which is co-extensive with virtue in general". As he states: "The law bids us practise every virtue and forbids us to practise any vice. And the things that tend to produce virtue taken as a whole are those of the acts prescribed by the law which have been prescribed with a view to education for the common good." Thus, for all practical purposes, the just man is one who lives by the rules that the legislators of the political community have laid down for him. Or, as Aristotle writes, "everything unfair is against the laws, but not every illegal act is unfair"-consequently, what is legal is fair, but that something is fair does not make it legal.
If "justice in the particular sense" is not the same as respect for law, what is it? It turns out that it is a part of "general justice". It is concerned with distributions, i.e. with respecting laws that determine that each member of the community gets what he entitled to, neither more nor less. And it is concerned with rectifying illegitimate gains and corresponding losses created by private transactions-crimes, illegal acts, and breaches of contract. Thus, particular justice is of two kinds: it is either distributive justice or it is corrective justice. Of these, justice in distribution (distributive justice), is by far the more important, primarily because it is the appeal to distributive justice that justifies unequal distributions of politically managed resources (taxes and subsidies, honours, and so on) according to some criterion of political merit. What that criterion is, Aristotle again leaves open: that is to be decided according to the prevailing morality in any given community-in other words, by the ruling authorities.
Aristotle goes to extraordinary lengths to vindicate his assumption that virtue, and also justice, is a mean. He does so by presenting justice as the outcome of a calculation that is supposed to reveal in mathematical terms just where, and how, the mean is to be found. For corrective justice the calculation is supposed to be simple: one man's gain is another's loss, and correction is achieved by removing the illegitimate of the one and to return it, in some form or other, to the injured party, so that the status quo ante is restored. What is taken from the evil-doer is given back to his victim, and the part that is taken is equal to the part given. Thus, corrective justice implies a simply arithmetical equality: if A has stolen n from B, the injustice is measured as 2n, because A has an illegitimate excess of n, and B a loss of n; but justice is the mean, and in this case the mean is 2n/2 or n; therefore we ought to take the difference with the mean, i.e. 2n-n or n, from A and return it to B: (A+n)-n=A and (B-n)+n=B. Now A and B are back where they were before there was injustice: the injustice has been corrected. (There are simpler ways to express the principle of corrective justice, but Aristotle is trying to convince us, that his doctrine of the mean is a universal principle.)
Distributive justice is a far more complex affair. It requires that benefits or burdens are distributed in accordance with the "merit" or "worth" of the persons involved in it. The key to the calculation is the assumption, that before any transaction takes places, the relative worth or merit of all those involved in it can be established. The transaction is then to be performed in such a way that the goods, services, or other values in it are distributed according to the relative worth of each and every participant. "Distributive justice is therefore a sort of proportion... and involves four terms at least: two persons for whom the distribution is just, and two shares which are just." Inevitably, this remark leads to another round of mathematese. The grand formula of distributive justice turns out to be
-as in "As is the ratio of the builder to the shoemaker, so must the number of shoes be to the house". The exchange ratio of houses and shoes must be proportionate to the ratio of the worth or merit of the producers-traders.
Amazingly, Aristotle returns to this formula in chapter 5, which is ostensibly devoted to the analysis of market exchange, and obviously inspired by a description of the market process. However, market exchange is not what Aristotle is concerned with. The exchange he writes about is the "proportionate reciprocity on which the very existence of the state or the community depends"-and that is not ordinary commercial exchange, but the exchange of services, or rather favours and other acts of kindness, and the proper way to repay them. Only that type of exchange will maintain the "order of the community", its system of rank, status and standing. In other words, the formula-known as Aristotle's formula of exchange, even if it does not make any sense whatsoever when applied to market exchange-is a conceptual device for the political pricing of goods and services among the members of an organised community. Not only is the formula of "proportionate reciprocity" the same as that of distributive justice, it also serves the same political purpose.
To make the confusion complete, Aristotle discusses the formula of exchange under the heading of corrective justice; and this has misled some readers into believing that it is different from distributive justice, and even that it looks upon exchange as an interaction between equals, i.e. irrespective of their "worth" or "merit". Because it is clearly distinct from corrective justice, and thought to be distinct from distributive justice, it is sometimes referred to as commutative justice-i.e. justice in exchanges, and particularly in market exchanges. However, Aristotle has virtually nothing to say about market exchanges: commutative justice, as it relates to market exchange, is left hanging in the air. What Aristotle does indicate is, that market exchanges are voluntary, i.e. based on the consent of the participants, and any injustice that might come out of them-presumably as a result of breach of contract or fraud-should be dealt with according to the principle of corrective justice. One other remark is made to characterise them: such exchanges are allowed by law to have unequal terms, i.e. outcomes that are not proportionate to the worth of the persons involved in them. Thus, trade is made to look like something inherently unjust, that should only take place if and when there is a specific legal licence for it. And, as Aristotle states elsewhere, "what the laws do not expressly permit they forbid."
Figure 14Thus, by the time Aristotle gets to discuss political justice, he has made it abundantly clear, that justice is basically a legalistic affair. The just man obeys the laws, and the laws, insofar as they have distributive effects, determine the criteria of merit or worth that should be used in making distributions. The discussion of political justice in chapter 6 serves merely to make the point, that justice is relevant only for citizens-"the free and equal citizens whose mutual relations are regulated by the laws, that is persons who share equally in ruling and being ruled". That is to say, justice exists only within the political community, and then only among the political elite-although Aristotle allows that "a sort of justice, in a metaphorical sense" can exist, where other persons are concerned.
In addition, he says that there is a natural sort of political justice, the rules of which "have the same validity everywhere, whether we accept them or not". However, nothing more is said about natural law and natural justice, except that even the rules of natural justice are "variable". How variable rules can have universal validity, Aristotle does not explain. However, his final word on the subject makes clear, that natural justice is nothing but an idealisation of conventional justice: "conventional forms of government are many, though in all places there is only one form of government that is natural, namely, the best form." By saying that even natural justice is variable, Aristotle indicates, that the best or natural form of political regime varies from place to place.
Chapter 1
WITH regards to justice and injustice we must (1) consider what kind of actions they are concerned with, (2) what sort of mean justice is, and (3) between what extremes the just act is intermediate...
We see that all men mean by justice that kind of state of character which makes people disposed to do what is just and makes them act justly and wish for what is just; and similarly by injustice that state which makes them act unjustly and wish for what is unjust. Let us too, then, lay this down as a general basis: ... a state of character which is one of two contraries does not produce the contrary results; e.g. as a result of health we do not do what is the opposite of healthy, but only what is healthy; for we say a man walks healthily, when he walks as a healthy man would.
Now often one contrary state is recognized from its contrary, ... E.g. If good condition is firmness of flesh, it is necessary both that bad condition should be flabbiness of flesh and that the wholesome should be that which causes firmness in flesh. And it follows for the most part that if one contrary is ambiguous the other also will be ambiguous; e.g. if 'just' is so, that 'unjust' will be so too.
Now 'justice' and 'injustice' seem to be ambiguous, but because their different meanings approach near to one another the ambiguity escapes notice and is not obvious as it is, comparatively, when the meanings are far apart, e.g. (for here the difference in outward form is great) as the ambiguity in the use of key for the collar-bone of an animal and for that with which we lock a door. Let us take as a starting-point, then, the various meanings of 'an unjust man'. Both the lawless man and the grasping and unfair man are thought to be unjust, so that evidently both the law-abiding and the fair man will be just. The just, then, is the lawful and the fair, the unjust the unlawful and the unfair.
...
Since the lawless man was seen to be unjust and the law-abiding man just, evidently all lawful acts are in a sense just acts; for the acts laid down by the legislative art are lawful, and each of these, we say, is just. Now the laws in their enactments on all subjects aim at the common advantage either of all or of the best or of those who hold power, or something of the sort; so that in one sense we call those acts just that tend to produce and preserve happiness and its components for the political society. And the law bids us do both the acts of a brave man (e.g. not to desert our post nor take to flight nor throw away our arms), and those of a temperate man (e.g. not to commit adultery nor to gratify one's lust), and those of a good-tempered man (e.g. not to strike another nor to speak evil), and similarly with regard to the other virtues and forms of wickedness, commanding some acts and forbidding others; and the rightly-framed law does this rightly, and the hastily conceived one less well. This form of justice, then, is complete virtue, but not absolutely, but in relation to our neighbour. And therefore justice is often thought to be the greatest of virtues, and 'neither evening nor morning star' is so wonderful; and proverbially 'in justice is every virtue comprehended'. And it is complete virtue in its fullest sense, because it is the actual exercise of complete virtue. It is complete because he who possesses it can exercise his virtue not only in himself but towards his neighbour also; for many men can at the same time exercise virtue in their own affairs, and not in their relations to their neighbour. This is why the saying of Bias is thought to be true, that 'rule will show the man'; for a ruler is necessarily in relation to other men and a member of a society. For this same reason justice, alone of the virtues, is thought to be 'another's good', because it is related to our neighbour; for it does what is advantageous to another, either a ruler or a copartner. Now the worst man is he who exercises his wickedness both towards himself and towards his friends, and the best man is not he who exercises his virtue towards himself but he who exercises it towards another; for this is a difficult task. Justice in this sense, then, is not part of virtue but virtue entire, nor is the contrary injustice a part of vice but vice entire. What the difference is between virtue and justice in this sense is plain from what we have said; they are the same but their essence is not the same; what, as a relation to one's neighbour, is justice is, as a certain kind of state without qualification, virtue.
Chapter 2
But at all events what we are investigating is the justice which is a part of virtue; for there is a justice of this kind, as we maintain. Similarly it is with injustice in the particular sense that we are concerned.
That there is such a thing is indicated by the fact that while the man who exhibits in action the other forms of wickedness acts wrongly indeed, but not graspingly (e.g. the man who throws away his shield through cowardice or speaks harshly through bad temper or fails to help a friend with money through meanness), when a man acts graspingly he often exhibits none of these vices,-no, nor all together, but certainly wickedness of some kind (for we blame him) and injustice. There is, then, another kind of injustice which is a part of injustice in the wide sense, and a use of the word 'unjust' which answers to a part of what is unjust in the wide sense of 'contrary to the law'. Again if one man commits adultery for the sake of gain and makes money by it, while another does so at the bidding of appetite though he loses money and is penalized for it, the latter would be held to be self-indulgent rather than grasping, but the former is unjust, but not self-indulgent; evidently, therefore, he is unjust by reason of his making gain by his act. Again, all other unjust acts are ascribed invariably to some particular kind of wickedness, e.g. adultery to self-indulgence, the desertion of a comrade in battle to cowardice, physical violence to anger; but if a man makes gain, his action is ascribed to no form of wickedness but injustice. Evidently, therefore, there is apart from injustice in the wide sense another, 'particular', injustice which shares the name and nature of the first, because its definition falls within the same genus; for the significance of both consists in a relation to one's neighbour, but the one is concerned with honour or money or safety-or that which includes all these, if we had a single name for it-and its motive is the pleasure that arises from gain; while the other is concerned with all the objects with which the good man is concerned.
It is clear, then, that there is more than one kind of justice, and that there is one which is distinct from virtue entire; we must try to grasp its genus and differentia.
The unjust has been divided into the unlawful and the unfair, and the just into the lawful and the fair. To the unlawful answers the afore-mentioned sense of injustice. But since unfair and the unlawful are not the same, but are different as a part is from its whole (for all that is unfair is unlawful, but not all that is unlawful is unfair), the unjust and injustice in the sense of the unfair are not the same as but different from the former kind, as part from whole; for injustice in this sense is a part of injustice in the wide sense, and similarly justice in the one sense of justice in the other. Therefore we must speak also about particular justice and particular injustice, and similarly about the just and the unjust. The justice, then, which answers to the whole of virtue, and the corresponding injustice, one being the exercise of virtue as a whole, and the other that of vice as a whole, towards one's neighbour, we may leave on one side. And how the meanings of 'just' and 'unjust' which answer to these are to be distinguished is evident; for practically the majority of the acts commanded by the law are those which are prescribed from the point of view of virtue taken as a whole; for the law bids us practise every virtue and forbids us to practise any vice. And the things that tend to produce virtue taken as a whole are those of the acts prescribed by the law which have been prescribed with a view to education for the common good. But with regard to the education of the individual as such, which makes him without qualification a good man, we must determine later whether this is the function of the political art or of another; for perhaps it is not the same to be a good man and a good citizen of any state taken at random.
Of particular justice and that which is just in the corresponding sense, (A) one kind is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution (for in these it is possible for one man to have a share either unequal or equal to that of another), and (B) one is that which plays a rectifying part in transactions between man and man. Of this there are two divisions; of transactions (1) some are voluntary and (2) others involuntary- voluntary such transactions as sale, purchase, loan for consumption, pledging, loan for use, depositing, letting (they are called voluntary because the origin of these transactions is voluntary), while of the involuntary (a) some are clandestine, such as theft, adultery, poisoning, procuring, enticement of slaves, assassination, false witness, and (b) others are violent, such as assault, imprisonment, murder, robbery with violence, mutilation, abuse, insult.
Chapter 3
(A) We have shown that both the unjust man and the unjust act are unfair or unequal; now it is clear that there is also an intermediate between the two unequals involved in either case. And this is the equal; for in any kind of action in which there's a more and a less there is also what is equal. If, then, the unjust is unequal, just is equal, as all men suppose it to be, even apart from argument. And since the equal is intermediate, the just will be an intermediate. Now equality implies at least two things. The just, then, must be both intermediate and equal and relative (i.e. for certain persons). And since the equal is intermediate it must be between certain things (which are respectively greater and less); equal, it involves two things; qua just, it is for certain people. The just, therefore, involves at least four terms; for the persons for whom it is in fact just are two, and the things in which it is manifested, the objects distributed, are two. And the same equality will exist between the persons and between the things concerned; for as the latter-the things concerned-are related, so are the former; if they are not equal, they will not have what is equal, but this is the origin of quarrels and complaints-when either equals have and are awarded unequal shares, or unequals equal shares. Further, this is plain from the fact that awards should be 'according to merit'; for all men agree that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit, but democrats identify it with the status of freeman, supporters of oligarchy with wealth (or with noble birth), and supporters of aristocracy with excellence.
The just, then, is a species of the proportionate... For proportion is equality of ratios, and involves four terms at least (...); and the just, too, involves at least four terms, and the ratio between one pair is the same as that between the other pair; for there is a similar distinction between the persons and between the things. As the term A, then, is to B, so will C be to D, and therefore, alternando, as A is to C, B will be to D. Therefore also the whole is in the same ratio to the whole; and this coupling the distribution effects, and, if the terms are so combined, effects justly. The conjunction, then, of the term A with C and of B with D is what is just in distribution, and this species of the just is intermediate, and the unjust is what violates the proportion; for the proportional is intermediate, and the just is proportional. This proportion is not continuous; for we cannot get a single term standing for a person and a thing.
This, then, is what the just is: the proportional. And the unjust is what violates the proportion. Hence one term becomes too great, the other too small, as indeed happens in practice; for the man who acts unjustly has too much, and the man who is unjustly treated too little, of what is good. In the case of evil the reverse is true...
This, then, is one species of the just.
Chapter 4
(B) The remaining one is the corrective, which arises in connexion with transactions both voluntary and involuntary. This form of the just has a different specific character from the former. For the justice which distributes common possessions is always in accordance with the kind of proportion mentioned above-e.g. if the distribution is to be made from the common funds of a partnership it will be according to the ratio of the investements of each partner); and the injustice opposed to this kind of justice is that which violates the proportion. But the justice in transactions between man and man is a sort of equality indeed, and the injustice a sort of inequality; not according to that kind of proportion, however, but according to arithmetical proportion. For it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has committed adultery; the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it. Therefore, this kind of injustice being an inequality, the judge tries to equalize it; for in the case also in which one has received and the other has inflicted a wound, or one has slain and the other been slain, the suffering and the action have been unequally distributed; but the judge tries to equalize by means of the penalty, taking away from the gain of the assailant. For the term 'gain' is applied generally to such cases, even if it be not a term appropriate to certain cases, e.g. to the person who inflicts a wound to the sufferer; at all events when the suffering has been estimated, the one is called loss and the other gain. Therefore the equal is intermediate between the greater and the less, but the gain and the loss are respectively greater and less in contrary ways; more of the good and less of the evil are gain, and the contrary is loss; intermediate between them is, as we saw, equal, which we say is just; therefore corrective justice will be the intermediate between loss and gain. This is why, when people dispute, they take refuge in the judge; and to go to the judge is to go to justice; for the nature of the judge is to be a sort of animate justice; and they seek the judge as an intermediate, and in some states they call judges mediators, on the assumption that if they get what is intermediate they will get what is just. The just, then, is an intermediate, since the judge is so.
Now the judge restores equality; it is as though there were a line divided into unequal parts, and he took away that by which the greater segment exceeds the half, and added it to the smaller segment. And when the whole has been equally divided, then they say they have 'their own'-i.e. when they have got what is equal.
The equal is intermediate between the greater and the lesser line according to arithmetical proportion. It is for this reason also that it is called just (), because it is a division into two equal parts (), just as if one were to call it ; and the judge () is one who cuts in half (). For when something is subtracted from one of two equals and added to the other, the other is in excess by these two; since if what was taken from the one had not been added to the other, the latter would have been in excess by one only. It therefore exceeds the intermediate by one, and the intermediate exceeds by one that from which something was taken. By this, then, we shall recognize both what we must subtract from that which has more, and what we must add to that which has less; we must add to the latter that by which the intermediate exceeds it, and subtract from the greatest that by which it exceeds the intermediate...
These names, loss and gain, have come from voluntary exchange; for to have more than one's own is called gaining, and to have less than one's original share is called losing, e.g. in buying and selling and in all other legal transactions, in which the laws do not punish unequal terms of contract. But when they get neither more nor less but just what belongs to themselves, they say that they have their own and that they neither lose nor gain.
Therefore the just is intermediate between a sort of gain and a sort of loss, viz. those which are involuntary; it consists in having an equal amount before and after the transaction.
Chapter 5
Some think that reciprocity is without qualification just, as the Pythagoreans said; for they defined justice without qualification as reciprocity. Now 'reciprocity' fits neither distributive nor corrective justice... for in many cases reciprocity and rectificatory justice are not in accord; e.g. (1) if an official has inflicted a wound, he should not be wounded in return, and if some one has wounded an official, he ought not to be wounded only but punished in addition.
Further (2) there is a great difference between a voluntary and an involuntary act.
But in associations for exchange this sort of justice does hold men together-reciprocity in accordance with a proportion and not on the basis of precisely equal return. For it is by proportionate requital that the city holds together. Men seek to return either evil for evil-and if they cannot do so, think their position mere slavery-or good for good-and if they cannot do so there is no exchange, but it is by exchange that they hold together. This is why they give a prominent place to the temple of the Graces-to promote the requital of services; for this is characteristic of grace-we should serve in return one who has shown grace to us, and should another time take the initiative in showing it.
Now proportionate return is secured by cross-conjunction. Let A be a builder, B a shoemaker, C a house, D a shoe. The builder, then, must get from the shoemaker the latter's work, and must himself give him in return his own. If, then, first there is proportionate equality of goods, and then reciprocal action takes place, the result we mention will be effected. If not, the bargain is not equal, and does not hold; for there is nothing to prevent the work of the one being better than that of the other; they must therefore be equated. (And this is true of the other arts also; for they would have been destroyed if what the patient suffered had not been just what the agent did, and of the same amount and kind.) For it is not two doctors that associate for exchange, but a doctor and a farmer, or in general people who are different and unequal; but these must be equated. This is why all things that are exchanged must be somehow comparable. It is for this end that money has been introduced, and it becomes in a sense an intermediate; for it measures all things, and therefore the excess and the defect-how many shoes are equal to a house or to a given amount of food. The number of shoes exchanged for a house (or for a given amount of food) must therefore correspond to the ratio of builder to shoemaker. For if this be not so, there will be no exchange and no intercourse. And this proportion will not be effected unless the goods are somehow equal. All goods must therefore be measured by some one thing, as we said before. Now this unit is in truth demand, which holds all things together (for if men did not need one another's goods at all, or did not need them equally, there would be either no exchange or not the same exchange); but money has become by convention a sort of representative of demand; and this is why it has the name 'money' (µµ)-because it exists not by nature but by custom (µ) and it is in our power to change it and make it useless. There will, then, be reciprocity when the terms have been equated so that as farmer is to shoemaker, the amount of the shoemaker's work is to that of the farmer's work for which it exchanges.
But we must not bring them into a figure of proportion when they have already exchanged (otherwise one extreme will have both excesses), but when they still have their own goods. Thus they are equals and associates just because this equality can be effected in their case. Let A be a farmer, C food, B a shoemaker, D his product equated to C. If it had not been possible for reciprocity to be thus effected, there would have been no association of the parties. That demand holds things together as a single unit is shown by the fact that when men do not need one another, i.e. when neither needs the other or one does not need the other, they do not exchange,.... This equation therefore must be established.
Now money serves us as the guarantee of exchange in the future: for suppose we need nothing at the moment, then holding money ensures that we shall be able to pay for what we need, when the need arises. Now the same thing happens to money itself as to goods-it is not always worth the same; yet it tends to be steadier. This is why all goods must have a price set on them; for then there will always be exchange, and if so, association of man with man. Money, then, acting as a measure, makes goods commensurate and equates them; for neither would there have been association if there were not exchange, nor exchange if there were not equality, nor equality if there were not commensurability. Now in truth it is impossible that things differing so much should become commensurate, but with reference to demand they may become so sufficiently. There must, then, be a unit, and that fixed by agreement (for which reason it is called money); for it is this that makes all things commensurate, since all things are measured by money. Let A be a house, B ten minae, C a bed. A is half of B, if the house is worth five minae or equal to them; the bed, C, is a tenth of B; it is plain, then, how many beds are equal to a house, viz. five. That exchange took place thus before there was money is plain; for it makes no difference whether it is five beds that exchange for a house, or the money value of five beds.
We have now defined the unjust and the just. These having been marked off from each other, it is plain that just action is intermediate between acting unjustly and being unjustly treated; for the one is to have too much and the other to have too little. Justice is a kind of mean, but not in the same way as the other virtues, but because it relates to an intermediate amount, while injustice relates to the extremes. And justice is that in virtue of which the just man is said to be a doer, by choice, of that which is just, and one who will distribute either between himself and another or between two others not so as to give more of what is desirable to himself and less to his neighbour (and conversely with what is harmful), but so as to give what is equal in accordance with proportion; and similarly in distributing between two other persons. Injustice on the other hand is similarly related to the unjust, which is excess and defect, contrary to proportion, of the useful or hurtful.
For which reason injustice is excess and defect, viz. because it is productive of excess and defect-in one's own case excess of what is in its own nature useful and defect of what is hurtful, while in the case of others it is as a whole like what it is in one's own case, but proportion may be violated in either direction. In the unjust act to have too little is to be unjustly treated; to have too much is to act unjustly.
Let this be taken as our account of the nature of justice and injustice, and similarly of the just and the unjust in general.
Chapter 6
...but we must not forget that what we are looking for is not only what is just without qualification but also political justice. This is found among men who share their life with a view to selfsufficiency, men who are free and either proportionately or arithmetically equal, so that between those who do not fulfil this condition there is no political justice but justice in a special sense and by analogy. For justice exists only between men whose mutual relations are governed by law; and law exists for men between whom there is injustice; for legal justice is the discrimination of the just and the unjust. And between men between whom there is injustice there is also unjust action (though there is not injustice between all between whom there is unjust action), and this is assigning too much to oneself of things good in themselves and too little of things evil in themselves. This is why we do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant. The magistrate on the other hand is the guardian of justice, and, if of justice, then of equality also. And since he is assumed to have no more than his share, if he is just (for he does not assign to himself more of what is good in itself, unless such a share is proportional to his merits-so that it is for others that he labours, and it is for this reason that men, as we stated previously, say that justice is 'another's good'), therefore a reward must be given him, and this is honour and privilege; but those for whom such things are not enough become tyrants.
The justice of a master and that of a father are not the same as the justice of citizens, though they are like it; for there can be no injustice in the unqualified sense towards thing that are one's own, but a man's chattel, and his child until it reaches a certain age and sets up for itself, are as it were part of himself, and no one chooses to hurt himself (for which reason there can be no injustice towards oneself). Therefore the justice or injustice of citizens is not manifested in these relations; for it was as we saw according to law, and between people naturally subject to law, and these as we saw' are people who have an equal share in ruling and being ruled. Hence justice can more truly be manifested towards a wife than towards children and chattels, for the former is household justice; but even this is different from political justice.
Chapter 7
Of political justice part is natural, part legal-natural, that which everywhere has the same force and does not exist by people's thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent, e.g. that a prisoner's ransom shall be a mina, or that a goat and not two sheep shall be sacrificed, and again all the laws that are passed for particular cases, e.g. that sacrifice shall be made in honour of Brasidas, and the provisions of decrees.
Now some think that all justice is of this sort, because that which is by nature is unchangeable and has everywhere the same force (as fire burns both here and in Persia), while they see change in the things recognized as just. This, however, is not true in this unqualified way, but is true in a sense; or rather, with the gods it is perhaps not true at all, while with us there is something that is just even by nature, yet all of it is changeable; but still some is by nature, some not by nature. It is evident which sort of thing, among things capable of being otherwise, is by nature, and which is not but is legal and conventional, assuming that both are equally changeable. And in all other things the same distinction will apply; by nature the right hand is stronger, yet it is possible that all men should come to be ambidextrous.
The things which are just by virtue of convention and expediency are like measures; for wine and corn measures are not everywhere equal, but larger in wholesale and smaller in retail markets. Similarly, the things which are just not by nature but by human enactment are not everywhere the same, since constitutions also are not the same, though there is but one which is everywhere by nature the best. Of things just and lawful each is related as the universal to its particulars; for the things that are done are many, but of them each is one, since it is universal...
Chapter 11
Whether a man can treat himself unjustly or not, is evident from what has been said. For (a) one class of just acts are those acts in accordance with any virtue which are prescribed by the law; e.g. the law does not expressly permit suicide, and what it does not expressly permit it forbids. Again, when a man in violation of the law harms another (otherwise than in retaliation) voluntarily, he acts unjustly, and a voluntary agent is one who knows both the person he is affecting by his action and the instrument he is using; and he who through anger voluntarily stabs himself does this contrary to the right rule of life, and this the law does not allow; therefore he is acting unjustly. But towards whom? Surely towards the state, not towards himself. For he suffers voluntarily, but no one is voluntarily treated unjustly. This is also the reason why the state punishes; a certain loss of civil rights attaches to the man who destroys himself, on the ground that he is treating the state unjustly....
Plato on justice
-The time then has arrived, Glaucon, when, like huntsmen, we should surround the cover, and look sharp that justice does not steal away, and pass out of sight and escape us; for beyond a doubt she is somewhere in this country: watch therefore and strive to catch a sight of her, and if you see her first, let me know.
-Would that I could! but you should regard me rather as a follower who has just eyes enough to, see what you show him -that is about as much as I am good for.
-Offer up a prayer with me and follow.
-I will, but you must show me the way.
-Here is no path, I said, and the wood is dark and perplexing; still we must push on. Here I saw something: Halloo! I begin to perceive a track, and I believe that the quarry will not escape.
-Good news, he said.
-Truly, I said, we are stupid fellows. Why, my good sir, at the beginning of our enquiry, ages ago, there was justice tumbling out at our feet, and we never saw her; nothing could be more ridiculous. Like people who go about looking for what they have in their hands -that was the way with us -we looked not at what we were seeking, but at what was far off in the distance; and therefore, I suppose, we missed her.
-What do you mean?
-I mean to say that in reality for a long time past we have been talking of justice, and have failed to recognise her.
-I grow impatient at the length of your exordium.
-Well then, tell me, I said, whether I am right or not: You remember the original principle which we were always laying down at the foundation of the State, that one man should practise one thing only, the thing to which his nature was best adapted; -now justice is this principle or a part of it.
-Yes, we often said that one man should do one thing only.
-Further, we affirmed that justice was doing one's own business, and not being a busybody; we said so again and again, and many others have said the same to us.
-Yes, we said so.
-Then to do one's own business in a certain way may be assumed to be justice.
Can you tell me whence I derive this inference?
-I cannot, but I should like to be told.
-Because I think that this is the only virtue which remains in the State when the other virtues of temperance and courage and wisdom are abstracted; and, that this is the ultimate cause and condition of the existence of all of them, and while remaining in them is also their preservative; and we were saying that if the three were discovered by us, justice would be the fourth or remaining one.
-That follows of necessity.
-If we are asked to determine which of these four qualities by its presence contributes most to the excellence of the State, whether the agreement of rulers and subjects, or the preservation in the soldiers of the opinion which the law ordains about the true nature of dangers, or wisdom and watchfulness in the rulers, or whether this other which I am mentioning, and which is found in children and women, slave and freeman, artisan, ruler, subject, -the quality, I mean, of every one doing his own work, and not being a busybody, would claim the palm -the question is not so easily answered.
-Certainly, he replied, there would be a difficulty in saying which.
-Then the power of each individual in the State to do his own work appears to compete with the other political virtues, wisdom, temperance, courage.
-Yes, he said.
-And is not the virtue which enters into this competition justice? Let us look at the question from another point of view: Are not the rulers in a State those to whom you would entrust the office of determining suits at law? And are suits decided on any other ground but that a man may neither take what is another's, nor be deprived of what is his own?
-Yes; that is their principle.
-Which is a just principle?
-Yes.
-Then on this view also justice will be admitted to be the having and doing what is a man's own, and belongs to him. Think, now, and say whether you agree with me or not. Suppose a carpenter to be doing the business of a cobbler, or a cobbler of a carpenter; and suppose them to exchange their implements or their duties, or the same person to be doing the work of both, or whatever be the change; do you think that any great harm would result to the State?
-Not much.
-But when the cobbler or any other man whom nature designed to be a trader, having his heart lifted up by wealth or strength or the number of his followers, or any like advantage, attempts to force his way into the class of warriors, or a warrior into that of legislators and guardians, for which he is unfitted, and either to take the implements or the duties of the other; or when one man is trader, legislator, and warrior all in one, then I think you will agree with me in saying that this interchange and this meddling of one with another is the ruin of the State.
-Most true.
-Seeing then, I said, that there are three distinct classes, any meddling of one with another, or the change of one into another, is the greatest harm to the State, and may be most justly termed evil-doing?
-Precisely.
-And the greatest degree of evil-doing to one's own city would be termed by you injustice?
-Certainly.
-This then is injustice; and on the other hand when the trader, the auxiliary, and the guardian each do their own business, that is justice, and will make the city just.
-I agree with you.
-We will not, I said, be over-positive as yet; but if, on trial, this conception of justice be verified in the individual as well as in the State, there will be no longer any room for doubt; if it be not verified, we must have a fresh enquiry. First let us complete the old investigation, which we began, as you remember, under the impression that, if we could previously examine justice on the larger scale, there would be less difficulty in discerning her in the individual. That larger example appeared to be the State, and accordingly we constructed as good a one as we could, knowing well that in the good State justice would be found. Let the discovery which we made be now applied to the individual -if they agree, we shall be satisfied; or, if there be a difference in the individual, we will come back to the State and have another trial of the theory. The friction of the two when rubbed together may possibly strike a light in which justice will shine forth, and the vision which is then revealed we will fix in our souls.
-That will be in regular course; let us do as you say.
-I proceeded to ask: When two things, a greater and less, are called by the same name, are they like or unlike in so far as they are called the same?
-Like, he replied.
-The just man then, if we regard the idea of justice only, will be like the just State. And a State was thought by us to be just when the three classes in the State severally did their own business; and also thought to be temperate and valiant and wise by reason of certain other affections and qualities of these same classes?
-True, he said.
-And so of the individual; we may assume that he has the same three principles in his own soul which are found in the State; and he may be rightly described in the same terms, because he is affected in the same manner?
-Certainly, he said.
-Once more then, O my friend, we have alighted upon an easy question -whether the soul has these three principles or not?
-An easy question! Nay, rather, Socrates, the proverb holds that hard is the good.
-Very true, I said; and I do not think that the method which we are employing is at all adequate to the accurate solution of this question; the true method is another and a longer one. Still we may arrive at a solution not below the level of the previous enquiry.
-May we not be satisfied with that? he said; -under the circumstances, I am quite content.
-I too, I replied, shall be extremely well satisfied.....
And so, after much tossing, we have reached land, and are fairly agreed that the same principles which exist in the State exist also in the individual, and that they are three in number.
-Exactly.
-Must we not then infer that the individual is wise in the same way, and in virtue of the same quality which makes the State wise? Also that the same quality which constitutes courage in the State constitutes courage in the individual, and that both the State and the individual bear the same relation to all the other virtues? And the individual will be acknowledged by us to be just in the same way in which the State is just?
-That follows, of course.
We cannot but remember that the justice of the State consisted in each of the three classes doing the work of its own class?
-We are not very likely to have forgotten, he said.
-We must recollect that the individual in whom the several qualities of his nature do their own work will be just, and will do his own work. And ought not the rational principle, which is wise, and has the care of the whole soul, to rule, and the passionate or spirited principle to be the subject and ally?
-Certainly.
-And, as we were saying, the united influence of music and gymnastic will bring them into accord, nerving and sustaining the reason with noble words and lessons, and moderating and soothing and civilizing the wildness of passion by harmony and rhythm?
-Quite true, he said.
And these two, thus nurtured and educated, and having learned truly to know their own functions, will rule over the concupiscent, which in each of us is the largest part of the soul and by nature most insatiable of gain; over this they will keep guard, lest, waxing great and strong with the fulness of bodily pleasures, as they are termed, the concupiscent soul, no longer confined to her own sphere, should attempt to enslave and rule those who are not her natural-born subjects, and overturn the whole life of man?
-Very true, he said.
-Both together will they not be the best defenders of the whole soul and the whole body against attacks from without; the one counselling, and the other fighting under his leader, and courageously executing his commands and counsels?
-True.
-And he is to be deemed courageous whose spirit retains in pleasure and in pain the commands of reason about what he ought or ought not to fear. And him we call wise who has in him that little part which rules, and which proclaims these commands; that part too being supposed to have a knowledge of what is for the interest of each of the three parts and of the whole?
-Assuredly.
-And would you not say that he is temperate who has these same elements in friendly harmony, in whom the one ruling principle of reason, and the two subject ones of spirit and desire are equally agreed that reason ought to rule, and do not rebel?
-Certainly, he said, that is the true account of temperance whether in the State or individual.
-And surely, I said, we have explained again and again how and by virtue of what quality a man will be just....
If the case is put to us, must we not admit that the just State, or the man who is trained in the principles of such a State, will be less likely than the unjust to make away with a deposit of gold or silver? Would any one deny this?
-No one, he replied.
-Will the just man or citizen ever be guilty of sacrilege or theft, or treachery either to his friends or to his country?
-Never.
-Neither will he ever break faith where there have been oaths or agreements. No one will be less likely to commit adultery, or to dishonour his father and mother, or to fall in his religious duties. And the reason is that each part of him is doing its own business, whether in ruling or being ruled?
-Exactly so.
-Are you satisfied then that the quality which makes such men and such states is justice, or do you hope to discover some other?
-Not I, indeed.
-Then our dream has been realised; and the suspicion which we entertained at the beginning of our work of construction, that some divine power must have conducted us to a primary form of justice, has now been verified?
-Yes, certainly.
-And the division of labour which required the carpenter and the shoemaker and the rest of the citizens to be doing each his own business, and not another's, was a shadow of justice, and for that reason it was of use?
-Clearly.
-But in reality justice was such as we were describing, being concerned however, not with the outward man, but with the inward, which is the true self and concernment of man: for the just man does not permit the several elements within him to interfere with one another, or any of them to do the work of others, -he sets in order his own inner life, and is his own master and his own law, and at peace with himself; and when he has bound together the three principles within him, which may be compared to the higher, lower, and middle notes of the scale, and the intermediate intervals -when he has bound all these together, and is no longer many, but has become one entirely temperate and perfectly adjusted nature, then he proceeds to act, if he has to act, whether in a matter of property, or in the treatment of the body, or in some affair of politics or private business; always thinking and calling that which preserves and co-operates with this harmonious condition, just and good action, and the knowledge which presides over it, wisdom, and that which at any time impairs this condition, he will call unjust action, and the opinion which presides over it ignorance. -
-You have said the exact truth, Socrates.
-Very good; and if we were to affirm that we had discovered the just man and the just State, and the nature of justice in each of them, we should not be telling a falsehood?
-Most certainly not.
END
