Vol. 14 No. 3 (March 2004)

ARISTOTLE AND MODERN LAW, by Richard O. Brooks and James Bernard Murphy (eds.). Ashgate Publishing Company, 2003. 722pp. Hardback. $190.00 102.50. ISBN: 0 7546 2143 X.

Reviewed by Brian Z. Tamanaha, St. John’s University School of Law. Email: tamanahb@stjohns.edu

Edited collections carry certain risks, among which are unevenness of quality, differences in tone and style, and coverage of some topics that might be uninteresting to particular readers. The latter risk is enhanced when the theme of the collection is the work of a person instead of a specific subject, and even more so when the person is someone like Aristotle, who wrote across a remarkable range of subjects. Although this collection suffers (inevitably) from some of these problems, its quality is consistently strong, and it provides a coherent introduction/overview of various ways that Aristotle figures into contemporary discussions of law. The select bibliography alone, completed by the editors, is worth the price of the book-by libraries.

Aside from the obvious potential audience of scholars interested in Aristotle as his work relates to law, perhaps the readers who might find this book most interesting would be sociologists of knowledge. After reading (and occasionally skimming) the almost seven hundred pages of text, I could not shake the sense that there is something unseemly, in a telling way, about contemporary discussions of Aristotle. The thrust of most discussions or points of debate covered in this collection can be characterized thusly: “Aristotle is on my side.”

Aristotle, we are told, advanced a theory of individual rights-depending on how you define rights; he was a pre-liberal (sort of); he was also a proto-civic republican or communitarian; he accepted aspects of positive law theory and natural law theory while superceding both; he was for equity in judicial decision-making and tells us how this can operate consistently with the rule of law; he articulates a theory that underlies contract and tort law (as corrective justice between private individuals); his ideas on ethics form a superior basis for punishment in criminal law; he presents a guide on how to educate lawyers and the legal profession to incorporate ethics and virtue; he teaches lawyers that they can be more persuasive as advocates if they project integrity. The debate on these and other issues takes place at various levels, including over whose understanding of Classical Greek language is better, what passages from which of his books are more relevant or authoritative on a given subject, how to read him in the proper context, what is the proper understanding of the modern theory at issue, and so forth. There is also a lot of instrumental borrowing from, and isolated citation to, passages from his work.

Modern theorists are fond of pointing out that a common pre-Enlightenment form of legitimization was the resort to charismatic authority, a mode we moderns have out-grown. We now subject everything to the close scrutiny of reason. Judging from this collection (and from the titles in the bibliography), the power of charismatic authority has not yet been banished entirely, even from the purported citadels of reason-the halls of the philosophical and legal academies.

Although it might be said, in response, that Aristotle is all about reason (or is that just another commonplace of our authority worship?), it ought to be asked whether references to Aristotle add anything to the discussion and at what cost. A 93 page piece by criminal law theorist Kryon Huigens recommending consideration of virtue in criminal punishment cited (though hardly discussed) Aristotle a dozen or so times, but the very same points could have be made with no mention of The Philosopher (as Aquinas dubbed him). An immediately following responsive piece by L.A. Zaibert (which, oddly, responded to a different article by Huigens on a separate criminal law issue) engaged in an extensive examination of whether Huigens properly understood or enlisted Aristotle. This pseudo-exchange highlights the problem with resort to authority: the discussion then turns to who got Aristotle right, away from the merits of the issue at hand.

Aristotle’s authority is so powerful that it overflows onto his contemporary high priests (or acknowledged expositors). Articles from philosopher Martha C. Nussbaum (on “human capabilities” as an alternative to human rights) and legal theorist Anthony T. Kronman (on being an ethical lawyer), both of whom have prominently identified themselves with Aristotle, were included in this collection, despite the fact that neither article contains much more than a scattered, passing mention of Aristotle (mostly in the footnotes). Presumably these very interesting pieces were added owing to the Aristotelian vision or sensibility their authors apply to modern problems.

Not all of the contributions to this collection can be fairly characterized as resorts to Aristotelian authority. Dennis Peter Maio wrote about the place of politics in adjudication in classical Athens that is actually not specifically about Aristotle or his views. Malcolm Schofield critically challenged Fred D. Miller’s attempt to construe Aristotle in a manner consistent with modern views of individual rights by insisting that Aristotle should be understood on his own terms. As the editors point out in their informative introduction, the literature manifests a variety of ways of discussing Aristotle. For example, an historian of the classical period can shed interesting light on Aristotle and his ideas and time for their intrinsic interest (pace Maio), or someone engaged in the history of ideas can trace the actual influence of Aristole’s ideas on modern thought, through its revival in the Medieval period (which James Gordley’s piece on equality in market exchanges does a little bit of). And certainly Aristotle’s ideas merit serious consideration on their own, owing to their insight and acuity, independent of and without respect to the fact that he articulated them. All of these usages are different, however, from arguing or claiming that Aristotle is an ally, and much in this collection (which, in the Series Preface, purportedly comprises a selection of the “most important essays in English” on the subject) smacks of this instrumental resort to authority.

This extended commentary (while weaving in a review-see above) should not be interpreted as finger-wagging, preaching by an academic purist; rather it is the confession and repentance of a sinner. I admit that in the past I have thumbed through POLITICS and NICOMACHEAN ETHICS looking for good quotes to back up a point I wanted to make-at least I have read them both through, at times laboriously, more than once, plus reams of commentaries on his work. Reading this collection has cured me of that urge, which I promise to no longer indulge, after I make this one final argument:

            “Aristotle was a (proto-) Yankees fan. . .”

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Copyright 2004 by the author, Brian Z. Tamanaha