ARISTOTLE'S
JUSTICE: AND HIS MESOTES DOCTRINE 
(Based on my studies of the footnoted materials: NE:
[Introduction To Aristotle. Edited by Richard Mckeon, Modern Library
College Editions, 1947; Nicomachean Ethics,, pp. 298-548.]---MIJ:
"The Metamorphoses Of The Idea Of Justice," by Hans Kelsen, pp.
390-418; and PNL: "Positive And 'Natural' Law And Their Correlation by Max
M. Laserson, pp.434-449.] Both to be found in [IMLP: Interpretations of
Modern Legal Philosophies.) Edited by Paul Sayre, Oxford University Press,
1947;
I shall limit this analysis to Aristotle's doctrine of
the mean (mesotes) which he intended to prove is the true nature of justice.
I
am in agreement, with those whose works I've researched that show he failed, but
in doing so exposed many of the problems inherent in the concept.
To put it succinctly, Aristotle attempted to dissect
justice into its smallest components, causing him to postulate three kinds: (1)
Distribution, (2) Correction, and (3) Equity.
Distributive Justice for him is a relative mean;
i.e., it is a relative distribution of property, wealth, honor, disgrace, etc.,
between two or more persons which results in an equality of ratios. If
possessions are to be distributed between two unequals, the ratio of the
distribution must equal the ratio of the merits of the two unequals. This is a
just equality. In other words, it is relative to the persons involved; and the
objects to be distributed are divided proportionately to the merits of
each person.
Corrective Justice is the second type which
Aristotle investigates and which he calls "rectificatory." Unlike
distributive justice, corrective justice is the direct equality, that is one to
one, of exchange between two parties. Merits are irrelevant and the law is
concerned only with the "distinctive character of the injury, and treats
the parties as equal, if one is in the wrong and the other is being
wronged." (NE 405) The judge must eliminate this injustice.
We should keep
in mind here Aristotle's presumption that the law, through the judge, is just.
It
is the function of the judge, then, to equalize the defect and the excess, or
the gain and loss, by determining the intermediate between them.
. . .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. . . . (NE 410)
Equitable Justice is that kind of justice
which Aristotle postulated as being a form of justice superior to legal justice.
Realizing that the "universality" (generality) of the law sometimes
gave rise to injustices, Aristotle postulated equity, which was to function,
though the judge, as a "correction of the law where it is defective owing
to its universality." (NE 421) But Aristotle maintained that it, i.e., the
law, "is nonetheless correct; for the error is not in the law nor in the
legislator but in the nature of the thing." (NE 421) Aristotle opens his analysis of justice by laying down
three considerations of importance,
(1) the kind of actions that they [justice and injustice] are concerned with, (2) what sort of mean justice is, and (3) between what extremes the just act is intermediate. (NE 397)
He is referring to his previous application of the
mesotes formula to the other virtues. It is through this formula that Aristotle
posits virtue as the mean between two extremes -- (1) excess, and (2)
deficiency. The mean, however, is relative not absolute. It differs with respect
to (1) individuals, (2) objects, (3) time, (4) circumstances of action. To
determine virtue is to determine first the extremes of behavior in respect of
these and then the intermediate. The Doctrine Of The Mean, then, is justice as a
mean between two extremes, (i.e., of vices), deficiency, and excess, or gain and
loss. It is important to stress here that Aristotle intends to define justice as
a determinable mean between excesses which he presumes are vices.
A Quasi Mathematical-Geometrical procedure, i.e.,
Mesotes Doctrine, is implicit in his procedure and he attempts to render an
analysis of virtue on a quantitative or quasi mathematical-geometrical basis.
In another passage Aristotle speaks of the virtue as
the mean between extremes:The greatest contrariety is that of the extremes to each other, rather than to the intermediate; for these are further from each other than from the intermediate, as the great is further from the small and the small from the great than both are from the equal. (NE 345)
One more quotation makes it quite clear that
Aristotle does, in fact, liken the determination of the mean to mathematical or
geometrical procedure. And too, it is clear evidence of Aristotle's contention
that the mean lies in the object or the act and is a determinable mean though
one must know how to determine it.For in everything it is no easy task to find the middle, e.g., to find the middle of a circle is not for everyone but for him who knows;. . . . (Italics, mine.) (NE 346)
It is important to show the relationship of
mathematical quantification and his divisions of "too much,"
"mean," and "too little" to the doctrine of the mean. That
these concepts are not applicable in those fields of inquiry to which Aristotle
applies his mesotes formula becomes evident as Kelson points out,
In the realm of moral values, there are no measurable quantities as are in the realm of reality as object of natural science. . . . A behavior can neither 'too much' nor 'too little' conform. . . it can only conform or not conform to a moral (or legal) norm. . . .or. . .to a psychic reality. (MIJ-IMLP 400)
Extremes As Expressions Of Non-conformity: --
It is conformity and nonconformity that Aristotle was unwittingly advocating.
And he failed to realize that there is no such thing as degrees of such a
behavior. One act of murder is not less conformity than ten such acts. When Aristotle speaks of "too much" and
"too little," he is merely giving two expressions to the one quality
of non-conformity. To call a defect "a vice," and excess another vice,
both as two different extremes, is, in fact, presupposing the existence of two
different norms for human behavior. When Aristotle speaks of the mean between excess and
deficiency in matters of justice, he is to be understood as saying that the man
who is deficient in justice is unjust and thus violates the norm of justice.
But
this is not the case with the man who is more than just, i.e., one who gives
more than the law requires, e.g., excess. This man does not violate the norm of
justice for he is still a just man by the standards of the norm. He, in fact,
violates a different norm. Conflict of Norms -- Hence it would seem that the
real problem is to find out how one's behavior can conform to more than one norm
at the same time; that is, to find a mean between norms. As Professor Kelson
says:
Justice As A Mean Is Not Determinable -- That
it pretends to be such an answer is evident in that it pretends to propound a
method for finding the mean (virtue) between two extremes of vices such as one
finds the point equidistant from the two ends of a line. But the two vices
between which virtue is a mean are not extremes in the same sense that the ends
of a line are. The same applies to the mean and the point bisecting the line.
Aristotle admits this in the following example:
On the basis of this quotation Aristotle refuses to
maintain his mean in the strict mathematical sense in "respect to us"
though he will maintain it "in respect of the thing." Therefore the
mean "in respect to us" now becomes an indefinite quantity between the
numbers "10" and "2." At the same time Aristotle refers to
them respectively as "too much" or "too little" which means
anything above 10 is also too much and anything below 2 is also too little. It follows, then, that if the two extremes are excess
and deficiency (and at that "self-evident" excess and deficiency),
that justice is the mean that falls somewhere between them. But how does
one determine where that "point" is? The Calculation Of Merits, Aristotle maintains,
is in "proportion to the merits of the two unequals." But certainly
one does not add up one's merits as on an adding machine. Such a calculation of
merits as he contemplated would indeed be nothing more than a hazardous guess
even if deliberated upon. It certainly could not be said to be in conformity
with all the facts which may possibly exist. How, then, can it be said that
justice, as a mean between excess and deficiency, would conform to the facts
(merits, etc.) when they, themselves, are never all known nor even considered? Professor Kelson considers the mesotes formula to be an
empty tautology that does not determine the mean at all, i.e., in the way
one would determine a point equidistant from two ends of a line or
proportionately dividing the line. In the case of the line, the ends are given,
i.e., arbitrarily chosen. In the same sense, Aristotle is presupposing that the
extremes are vices and that they are self-evident. He does not prove nor attempt
to prove what constitutes the vice other than that it is above or below the
mean. This "proof," however, is invalid because the extremes must be
determined before it is possible to derive their relative mean. Or, the mean, or
norm, must be arbitrarily chosen to determine the relative extremes. Kelson puts
it another way:
Relation Of A case To The Judge Is A Thing --
It should be clear, too, that when Aristotle talks about a "mean with
respect to the thing," that all "affected parties" stand as
"things" in relation to the judge. And he would insist that the mean,
though relative to the affected parties would be a determinable and identical
mean if a dozen honest judges all under the same constitution and laws were to
judge separately the same "case." This is substantiated by the fact
that Aristotle admits that the universality of the law sometimes does not cover
every case and hence the judge determines the mean as a "correction"
of the law as the "...legislator, himself, would have said had he been
present, and would have put into his law if he had known." (NE 421) Implication Of Identical Judgments -- The
implication is that the determination of the same mean is a certainty under the
laws of a constitution, which cover the case, regardless of who the judge might
be. But any determination of the mean is contingent upon presupposed vices --
extremes, the constitution of which, to reiterate, Aristotle makes no attempt to
demonstrate prior to his determination of the mean. Such presuppositions are
themselves questionable for we don't all agree as to what excess of deficiency
is. Only positive law sets the limits and they are often very vague. Mesotes Formula Presupposes Law And Social Order
-- For Aristotle, however, the doctrine of the mean should determine the law and
the social order. Hence, and as Kelson contends,
Hence, it must be concluded that the mesotes
doctrine, itself, is founded on an empty tautology. That Aristotle presupposes that positive law is
just is obvious on the basis of the following passage:
Positive Law Is Not Always Just: Political
upheavals in history attest to the fact that positive law is often at variance
with socially adapted intuitive law in which case positive law is unjust
compared to the concept of judgment prevailing in the society. Note the
"laws of Hitler's Germany" or any dictator or any of the great
religious institutions. However, Aristotle specifically mentions that a law is
just even if it is for the advantage only of "those who hold power."
This, in fact, justifies even a tyrant, for by virtue of the fact that he is the
ruler, he is more meritorious than the ruled. By legal enactment -- by virtue of
the mesotes doctrine -- by Aristotle's justification of positive law, the
difference is so great between ruler and ruled that the latter cannot in any
sense of the word be considered equal to the former. Again history attests to
the fact that the ruler, in most cases, conceives himself to be superior. It is obvious, then, that if there is to be any sense of
social equality between ruler and ruled, some have suggested that qualities such
as wealth, sex, race, etc., (don't hold your breath) should and ought to be
declared irrelevant. Aristotle implies as much in his ridicule of the arrogant
and ignorant rich. CONCLUSION
In philosophical circles, the question, "What is
justice?" still remains. I do not pretend to have the answer. However, we
must consider the following. The socially adapted intuitive law, which is Dr.
Laserson's definition (PNL-IMLP 436) of the functional interpretation of natural
law, plays a decisive and dynamic part in our formulation of positive law and
the development of justice. But not even in the legal consciousness of our
various societies, Laserson declares, can it be explicitly defined. In spite of
that, and rightly so, he is convinced that it is a definite motivational force
in the world leading to an evolutionary tendency toward greater justice however
it be defined.
It is not my contention, as it seems to be Professor
Kelson's that these principles of justice are "empty tautologies"
(MIJ-IMLP 402) in the sense that they are meaningless. For, in fact, I believe
they do, taken as a whole, hold profound meaning. It is a well recognized fact
that the "just" administration of positive law often supersedes in
importance the "just" formulation of it. It is the case that laws are
not designed to determine the proper meaning of justice. As Kelson points out,
". . .justice is an ideal inaccessible to rational cognition. . . . And, indeed
... is an irrational ideal." (MIJ-IMLP 397) But, mankind has no choice but
to resort to such an ideal. It acts in the capacity of watchdog keeping us
constantly aware that we must continually strive for justice as an ideal good,
balancing the good of the individual, with the good of all sentient,
self-conscious, intelligent life -- potential and actual. That should be the
responsibility of all analytical minds: always reaching always searching for the
good as the essence of humanity.
It is to be admitted that Aristotle's principles of
justice, as presented here, have brought clarification to problems inherent in a
just administration of law. He has, however, as have all those who have since
followed him, failed in helping us to understand what justice is. It's clear
from the evidence, like so many countless abstract terms, open to a multiplicity
of interpretations. The term 'justice' is but one more. Those who dream of
defining it to the satisfaction of everyone are in pursuit of a will-o'-the-
wisp.
As for me, I'm drawn to this conclusion: With the
passive or active consent of the societies among which there is little or no
necessary conceptual commonality, justice and injustice are whatever those
allowed to administer them determine them to be. So long as ignorance, envy,
greed, desire for and grasp of power, and wars waged under the aegis of our
separate gods cast their shadows upon the world, there is serious question as to
the evolution of justice toward a greater good.
SEE FILE 21: PERENNIAL QUESTIONS