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.

The just, then, is a species of the proportionate (proportion being not a property only of the kind of number which consists of abstract units, but of number in general).  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, [the one person], then, is to B, [the other person], so will C [A's object or portion or right) be to D (B's share]. . . . [Bracketed are mine.]  This then is what the just is--the proportional; the unjust is what violates the proportion. (NE 40)


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 everything that is continuous and divisible it is possible to take more, less, or an equal amount, and that either in terms of the thing itself or relatively to us; and the equal is an intermediate between excess and defect.  By the intermediate in the object I mean that which is equidistant from each of the extremes, which is one and the same for all men; by the intermediate relatively to us that which is neither too much or too little -- and this is not one, nor the same for all. (Italics, mine.) (NE 339)
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:
The mesotes doctrine creates the appearance as if it were one and the same norm which one violates by, so to speak, remaining below, or by going beyond the line determined by the doctrine.  The mesotes formula veils the problem it pretends to solve: since the norms of a given moral system are very often in conflict with one another, it is necessary in order to act morally, to restrict the validity of the different norms in the proper way.  That "virtue" is the "mean" between two vices means that morally correct is only the behavior by which the one of the conflicting norms is obeyed without the other being violated.  The true problem is to show how this is possible, how, for example, a man's behavior can conform to the norm of courage and at the same time to that of prudence.  To this question the mesotes doctrine gives no answer; not to any question aiming at a determination of the moral value. (MIJ-IMLP 401)
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:
But the intermediate relatively to us is not to be taken so; if ten pounds are too much for a particular person to eat and two too little, it does not follow that the trainer will order six pounds; for this also is perhaps too much for the person who is to take it, or too little. . . .  (NE 339)
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:
If an ethical doctrine presupposes all possible vices, it presupposes together with those vices, all possible virtues.  If we know what is evil, we thereby know what is good, and then nothing remains to be determined.  Even if virtue determined according to the mesotes formula as a mean between the given vices, were a "mean with respect to the thing" and hence "one and the same for everybody" the formula could (My italics.) proclaim only an empty tautology, for its meaning would be, in this case, too, nothing else but that the good is opposite to the evil, which the formula itself does not determine but presupposes. (MIJ-IMLP 403)
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,
By presupposing in its mesotes formula the given social order, the ethics of Aristotle justifies the positive morality and the positive law which as a matter of fact determines what is too much and what too little, what are the extremes of evil -- or wrong, and thereby what is the mean. (MIJ-IMLP 403)
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:

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 [sic] 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 the best or of those who hold power, or something of the sort. (My italics); . . . . (NE 399)

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

1965-1997 by Pasqual S. Schievella