Aristotle and Law: The Politics of Nomos by George Duke (review)

In this excellent book, drawing on previously published articles, George Duke gathers the scattered threads of Aristotle's discussions of law while defending clear stances in the various philosophical debates they have engendered. The book works within Aristotelian methodology and metaphysics, developing the view that a politeia should be understood as a formal cause (64) that is worked out in terms of the successive definitions offered in book III of Politics. Building on studies of the evolution of the meaning of nomos and making occasional reference to Greek legal history and practice, primarily in Athens, it treats what I see as three themes, spread across seven chapters.

In chapters 1 and 2, Duke addresses the place of law in Aristotle's ethics and politics, understood as exercises of practical philosophy. He argues that law enters the final book of the Nicomachean Ethics as a mechanism that includes compulsion to guide citizens who may not fully grasp the rationality that it contains. This construction of the political is, he claims, reconcilable with the "political naturalism" (14, 54, and passim) of Politics I, so long as human nature is itself understood as containing the potential to exercise practical reason, something perfected in the "architectonic legislator" (9, 11, and passim).

In chapters 3–5, Duke explores the relationship between laws and politeiai (constitutions). He argues for "the constitutional relativity of law" (15, 63, and passim) as being nevertheless still subject to normative evaluation based on the "common advantage (to koine[i] sumpheron)" (85). Duke tackles the division between "individualist" and "holist" readings of the "common advantage," arguing that both elements are present in its ability to serve, respectively, as "a motivating reason for individuals to enter the polis" and as "a normative reason … which serves as a criterion" for evaluating constitutions and laws (87). With John Finnis and Liam Murphy, he claims that Aristotle employs a "method of focal analysis" (147–48) in relating the lawful to the just. And he follows Hans Rosler's Razian reconstruction of Aristotle on obedience to law, supplementing it with a holistic account of the value of eunomia. Against critics like Eugene Garver, Duke argues that the importance of legal stability for habituation rightly counts for Aristotle against overly activist approaches to constitutional and legal reform.

In chapters 6 and 7, Duke explores the role of natural justice in Aristotle's thinking about law. In chapter 6, Duke contends that "Aristotle holds to some, if not all, central commitments associated with natural law positions" (139). In chapter 7, he discusses the relationship of law to equity (epieikeia), arguing that "the mature practically reasonable citizen" (159)—or spoudaios (more textually accurate than the tendency of modern philosophers to refer to the phronimos)—relies on a foundation of natural justice rather than exemplifying decisionism.

The "cautious conclusion" (139) of chapter 6 on natural law is nevertheless likely to invite critical disagreement. Duke treats Aristotle's standard of justice as "a ground for the evaluation of positive law as just or unjust" (130), working out a reading of political justice as being in one part natural, in another conventional (Nicomachean Ethics V.7, 1134b18–22), and also points to his treatment of the best constitution as aiming at virtue. He takes both as cases of Aristotle's supporting key tenets of the natural law tradition. Yet this would make any metaphysical realist a candidate for natural lawyer, and discounts the lack of lawlike form attaching to Aristotelian natural justice. Duke's comparisons of Aristotelian to Thomist and Stoic conceptions of natural law do not clarify in what sense of 'dependence' Aristotle could be understood to hold the "natural law" position "that the existence and content of positive law depends in some way on normative facts" (141).

Two further criticisms both hinge on philosophical contrasts that incorporate overly modern assumptions. While Duke rightly asserts that "the true founding legislator of the best constitution is presumably Aristotle himself, or at least a practically wise statesperson...