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Thursday, March 6, 2014

Aristotle on the nature/convention dichotomy: let's start with the debate



Dear All, as a follow-up to our discussion:

in the Nichomachean Ethics, Aristotle claimed that: “there are two forms of justice, the natural and the conventional. It is natural when it has the same validity everywhere and is unaffected by any view we may take of the justice of it. It is conventional when there is no original reason why it should take one form rather than another and the rule it imposes is reached by agreement, after which it holds good. It is not obvious what rules of justice are natural and what are legal and conventional, in cases where variation is possible. Yet it remains true that there is such a thing as natural, as well as conventional, justice” (Book V, Chapter II)

What do WE think? 

14 comments:

  1. "Yet it remains true that there is such a thing as natural, as well as conventional, justice."

    Speaking about conventional or natural justice, I think the two things should tend to correspond. That doesn't mean that what is conventionally reasonable, as a consequence should be regarded as naturally reasonable or fair too.
    I mean, when i was studying criminal procedural law, I read something which astonished me.
    It was a comment on the new art. 111 of Italian Constitution, which clearly states that everybody has got the right to have a fair trial, which has to be regulated by law. The Professor who wrote the comment claimed that the expression "a fair trial regulated by law" is tautological, because what is regulated by law is necessarily fair.
    Are we saying that what is legal is also legitimate, as a consequence? I find it absurd - I know I should try to reconcile the two thesis, but i don't want to become neither a poet nor a judge.
    If what is written in law was surely just and fair, we wouldn't need the Constitutional Court to check the coherence and congruence between a law and the Constitution, which is, according to me, the main and maybe the only point of equivalence between natural and conventional justice.

    Francesca Semeraro

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  2. As far as I'm concerned, Aristotle's opinion is absolutly great.With his theories regarding the conventional and the natural Justice he was able to anticipate the tipically modern distinction between natural law and and legal positivism.Aristotle thought there is a right for nature that everyone can notice in the most different cultural contexts and that therefore does not derive from the costumes and the customs.To me Justice is different from law.Justice must be considered the main principle of coordination and harmony in human relationship,while with the expression "law" we should refer to the complex of rules and legal acts with which man over the centuries has decided to regulate social and ethical behavior.Justice is a high value,certainly not created by humans.Laws are created by the human being.This last one is imperfect so many laws may be imperfect.

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  3. Great start guys! We are reading your comments so don't worry if we do not always reply. Debates can be developed both on the blog and in class.

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  4. In my opinion the historical, political and cultural environment in which we live affects our conception of natural law and conventional law. For example, in past, many people believed that being a slave was a law of nature, but now we say that it was wrong and that freedom is a law of nature.
    Nowadays there are cultures in which the subordination of women is a Law of Nature, but in our country we fight against this idea because it’s a law of nature that we all have the same rights and the gender doesn’t matter. I think that this Aristotele’s division of justice in natural and conventional is very interesting and even more interesting is try to understand how and why we decide that a law is conventional and we can change it or it’s natural and we have to protect it.

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  5. We could think that the nature/convention dichotomy is such an old idea. Every law student has certainly studied Sofocle’s Antigone as an example of this dichotomy: Creonte represents conventional justice(what today we call positive law), while Antigone represents natural justice(what today we call natural law). But many people should raise a question: is this dichotomy still actual?
    In fact, after French Revolution and the Declaration of Rights, almost all natural rights have become positive law. In this perspective, the Constitutions should have caused the “death” of natural justice. But I do not think that law has to be seen as something which is fixed and static. Law evolves as community changes, and the natural law is the “guide” for positive law to evolve. For me, this dichotomy will exist forever, although the borders between positive law and natural law will be less and less definite.
    I have an example that supports my theory, which is not an “ancient” example as it could be the one of Antigone; it is an example that dates back to the half XX century. I am thinking about Nuremberg Trials; I do not want to say my opinion about the fairness or not of these trials, but I just want to show how important was, only about 70 years ago, the dichotomy nature/convention. The International Military Tribunal formed by France, Great Britain, the United States and the Soviet Union prosecuted German military leaders for crimes against humanity and war crimes, although these crimes appeared in “ex post facto” laws. The fact that these crimes had been “created” after they were committed was the main argument of Nazi defendants, who looked for a “positive justice”. Instead, the International Military Tribunal looked for a “natural justice”, condemning all that was against the normal sense of humanity, even though it had not already been written in a specific law at the time the fact was committed.
    GIULIA TANTERI

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  6. The debate about natural justice and conventional justice had always been one of the most discussed theme in history, even if they were called in other ways or they were elaborated in different moments or years.
    I think that we have to separate, like Aristotle already has done, natural justice and conventional justice to understand better what they really are.
    The natural justice is a general concept that have to be valid everywhere and for everyone. In my opinion we can consider natural justice like a 'dream' that everyone wants to realize, but it's a really abstract idea and it's not easy, or maybe impossible, to accomplish.
    It is at this point that I consider conventional justice. It can be considered like a relative justice and it can be different from place to place, but it doesn't mean that it's not a good or fair justice.
    Justice has always been relative and different, because of the social contest where it actuate its effects.
    Once we have understood what natural justice and conventional justice are, we can consider them related: we want to overtake the first one with the second one, but we try and we are not sure if we can really do this.

    Ina Doci

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  7. Wich meaning should we give to natural justice? Starting point is the inconsistency between natural law and conventional law as an historical dicothomy wich shaped the development of society. For a long time humans had been holding the flag of natural justice to fight against dispotism and his reckless powerful kings and lords, until, in the 19th century, "Reichstaat" came to light. From that moment on, a legally-based protection of important human right was fixed; but the question still remains: who can grant us that a parliament would be more responsible (towards commonweal) rather than a King? That's why the Rule of Law evolved into the Constitutional State, thus creating a second and higher level of legal protection. Nowdays, could we suppose an existing relation between positive justice and natural justice?

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  9. Great job, boys and girls!

    As the debate grows more complex, we start perceiving some questions constituting the theoretical background of this course:

    - what is the conceptual boundary between law and justice?

    - can law realize what society and culture can't? For instance, consider the Italian debate on the so-called "quote rosa": can a norm concretely enforce gender equality? If so, how? Should this be a cultural issue? And, again, where culture and social structure fail, what can the relevance of law be (remember the Benetton case described by Patricia Williams)?

    Let's keep discussing.

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  11. Law and justice,inextricably linked in a relationship often difficult and controversial,arise in the context of interpersonal conflict or competition.Both the law and justice are asked to ensure the moral and social harmony inside of a society and to preserve a legitimate balance between them,taking appropriate measures of rectification in case of violations.For Aristotle,Justice must be applied through the universal laws,but because of their universal character,not always the laws may provide the particularities and exceptions that occur in specific cases.Therefore,the strict application of universal laws sometimes give rise to injustices.To resolve this problem, Aristotle argues that justice must be supplemented by equity,so that legal norms can allow space for certain exceptions.The contrast between law and Justice follows the distinction between formal justice that equals should be treated equally,and substantive justice,which requires us to go beyond the formal justice specifying who is equal to whom,and in what respect those who are deemed to be equal are equal.
    In order to answer to the second question,I just want to say that no law can be considered separated by a determinate culture,because all laws had been created in order to promote a cultural thought.So if a culture fails,laws based on it will surely fail.We can take as an example the law which was passed on 6th February of this year by the Afghan Parliament which proposed the amendment of the Penal Code prohibiting relatives of the defendants to domestic violence or forced marriages to testify against them in the courts.In this way,victims are forced into silence and can't denounce their suffering.As far as I'm concerned conventional law will never be completely able to remove injustices from our society,because every man should act in accordance with the principles that lead to a society where harmony reigns, regardless of the presence of laws requiring righteous attitudes.

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  12. For what concern the first question , personally i think that Justice is a concept that can't be defined in an absolute way.
    Of course there are some general principles that form a sort of nucleos of that concept. Anyway its meaning is not steady and it has been changing during the centuries. We also have to notice that each population has his own concept of justice.
    Premising that there is a srict bound between justice and law , consequently each idea of justice has its own laws created in order to realize that justice itself. Not always the concept of justice has been related with the concept of fair.
    In history we have many examples, it's enaugh thinking about nazism and the racist laws to understand the bound between law and justice , they are so realted that even if the idea of justice in a particular moment is absolutely unfair so are the laws.
    For what concern the second question , i think that law should realize what society and culture can't.
    In my opinion is aboveall in contexts where some rights are not recognized as a part of that culture like women's dignity ,for instance ,that law has to impose its strenght in order to realize the aim it was created for.
    maybe law can't completely remove the cultural issues but surely it can be a strong deterrent.

    Rita Trevisan

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  13. In response to; ‘What is the conceptual boundary between law and justice?’

    Is there a boundary between law and justice? Or do they take charge of different roles within society? Having a presumption (or a belief) as to the nature and/or the origin of law can affect the way someone answers the question above. If one believes that the law is natural, in so far as it coexists with everything else, then it can be presumed (for the sake of this point), that the law has a role within the natural order that may be different to the role of justice, yet both, as natural entities, work perfectly together in harmony, one as a tool, and one as a state of being. However, if one believes, as many do, that law and justice are somehow separate, then questioning the boundary between the two constructions can commence in an empirical fashion.

    A few further thoughts; is the law merely a tool to reveal the ‘justness’ and the ‘rightness’ of man? Thus giving power for a state to enforce ‘just’ and ‘right’ sanctions; this also leads to the question of whether justice is an indicator as to the perfect citizen? Would this perfect citizen then take the role as someone who is justified’?

    ‘Justice primes the human habitat for peaceful and friendly togetherness’ (Zygmunt Bauman, Europe: An Unfinished Adventure, 127).

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  14. I think that the law can force through the rules gender equality and get where culture and society can’t. The law changes the society in which we live marking a boundary between what is right and what is wrong . When in Italy the vote was extended to women by law, many Italians did not agree with it because they thought that women didn’t worth as much as men, but the law said to them: prevent women from voting is illegal and if you don’t want to commit a crime and go in prison you must obey the law and now none would ever say : women can’t vote .
    When the law against slavery entered into force in U.S.A. many Americans didn’t agree, but the law provoked debates and the American mindset about slavery changed. The law is linked to culture, a new law raises questions about whether it is right or not, and thanks to the debate a society changes. Without the law this evolution would be impossible.
    Let’s think about the Muslim countries: as long as a government will not propose a law on gender equality there will be no equality of the sexes.
    I believe that the law can not only get where culture and society can’t, but that is the law that forms them . Obviously, the law alone is not enough , for example in India there are laws that protect women but the disrespect towards women is so strong that there are many episodes of violence . A law is not a spelling : if we write that blacks should not be discriminated, racism will not disappear , but without the law we would have no chance to change culture and society, the law is a huge and important tool for development.

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