The following work was presented as my undergraduate thesis in Classics at Santa Clara University.
It is clear that Aristotle does not give rights the same explicit and systematic consideration as he does such subjects as memory, time, motion, or the soul. As Fred D. Miller notes in the opening to his defense of the notion of rights in Aristotle’s Politics, however, “the notion that Aristotle, in some sense, recognizes the rights of individuals is not new” (Miller 87). In general agreement with Miller, I propose that a coherent, integrated theory of rights underpins the political philosophy espoused by Aristotle in the Politics. Furthermore, I posit that this theory of rights is fundamental to Aristotle’s conception of the polis as he presents it in the Politics. Although the exposition of such a theory of rights is not Aristotle’s end purpose in the Politics, this does not prevent rights from being fundamental his conception of the city-state.
Aristotle did not have the luxury of many of the broad-sweeping terms we regularly employ in our discussions of political philosophy today. However, simply because there is no direct equivalent in ancient Greek to the modern English word “right,” this does not preclude Aristotle from presenting the logical structures of a variety of rights and rights-claims. Thus, while the rights locutions found in the Politics are clearly not identical to those we find in a relatively modern document such as the United States’ Bill of Rights, the underlying logical structures are nonetheless the same. This becomes clear, however, only if we as readers of Aristotle are able to understand these proposed rights locutions in terms of an objective framework for the sake of analysis and comparison.
Such a framework is employed by Fred Miller in his Nature, Justice, and Rights in Aristotle’s Politics, whereby he examines rights locutions in the Politics through the lens of the legal analysis of rights first proposed by Wesley Newcomb Hohfeld, an American jurist writing during the early 20th century. In his highly influential paper Fundamental Legal Conceptions, As Applied in Judicial Reasoning, Hohfeld provides a systematic deconstruction of the previously highly ambiguous term “right” into its logical and relational components. Accordingly, ensuing argumentation will proceed on the basis of Hohfeldian analysis with reference both to Miller and to his most compelling critics.
First however the question of whether or not any conception of “natural rights” exists in the Politics should be addressed. Many scholars hold that any usage of the language of “rights” is wholly anachronistic and misguided when discussing Aristotle, let alone natural rights. Miller makes the following distinction: “a natural1 right is based on natural justice; a natural2 right is possessed in a state of nature, i.e. in a pre-political state” (Miller, Nature, Justice, and Rights in Aristotle’s Politics his italics, 88). Miller offers convincing argumentation that Aristotle has a theory of natural1 rights but is quick to dismiss the existence of any theory of natural2 rights in the Politics. It is beyond the scope of this paper, however, to examine even this guarded position of Miller’s.
It is patently clear that Aristotle has no theory of rights as natural2 in the sense of their primacy outside of the construct of the state. The distinctions made between rights based on convention and rights based on natural justice, however, are markedly less clear and quite worthy of consideration, but to undertake an endeavor such as the definition and analysis of natural justice in the theory of Aristotle is not my intention here. Rather, we will proceed by considering Aristotle’s theory of rights “natural” only in the sense that that according to his political philosophy, human beings are by nature political animals. Therefore if the nature of human beings as political animals is essential to the political theory of Aristotle, a notion consistent with traditional interpretations, and if a theory of rights can be shown as fundamental to this very same political philosophy, then this seems to me to be sufficient consideration of the “naturalness” of rights in the Politics for the purposes of our discussion here.
In Book I of the Politics Aristotle proposes that the city-state arises from the natural collaboration of several villages. These villages, in turn, have arisen naturally from the conglomeration of several households, with the household itself having developed in a similar natural fashion out of the primitive reproductive associations of male and female, driven by the most basic of needs: to survive. The relationships of man and woman, as well as master and slave, are cited by Aristotle as the starting point of this natural progression from couple (for mere reproductive purposes) to polis (for the general benefit of all of its constituents). Indeed, as Aristotle notes, the city-state “comes to be for the sake of life, and exists for the sake of the good life.” (Politics I.2.1252b27-30)
Aristotle defends the natural status of the city-state through this claim of natural progression. Furthermore, for Aristotle the polis is more than the goal of these progressive human associations; it is also self-sufficient: “that for the sake of which something exists—that is, its goal—is best, and self-sufficiency is both a goal and best “(Politics I 1252b30). Moreover, Aristotle cites the ability of human beings to speak, an ability we have been equipped with by nature, as another indicator of the naturalness of the city-state, for it is speech that allows man to communicate and deliberate on matters such as morality and justice. Moreover, speech is a tool generally necessary for the establishment of social relationships more complex than the simple household. Additionally, Aristotle notes that because individual human beings are not self-sufficient, the state must be prior to the individual; “by nature then, the drive for such a community exists in everyone” (Politics I.2 1253a29). While it is important to recognize Aristotle’s claim of the primacy of the state over the individual, I do not believe this to be a point which precludes Aristotle from conceiving the individual as a significant entity in relation to the state. Nor does Aristotle’s understanding of the state as naturally prior to the individual prevent him from advancing, in a number of locutions, the existence and function of certain rights to be held by the individual.
Before proceeding to an analysis of specific rights locutions, however, let us consider for a moment that the Politics is, to a certain extent, a response to Plato’s Republic. Considering politics (politikê epistêmê: ‘political science’) to be a practical science, Aristotle “thus understands politics as a normative or prescriptive discipline rather than as a purely empirical or descriptive inquiry” (Stanford Encyclopedia of Philosophy). In this vein, Aristotle is operating in a conceptual space whereby the individual can be shown to be of fundamental importance in relation to the constructions of the state, regardless of whether or not that same level of individualism existed in actuality in the political structures of the day. Therefore, rights locutions will appear more qualified and sensible if examined within context of the individual as a distinct and significant entity within the political theory of Aristotle.
Although Aristotle does indeed regard the polis as being prior to the individual, he qualifies his position by arguing that the communism of the Republic is inimical to the very nature of the polis itself as guarantor of the good life: as it becomes progressively more one it will no longer be a polis; for the polis is with respect to its nature a sort of multitude, and if it becomes more one it will become a household instead of a polis, and a human being instead of a household; for we would say that a household is more one than a polis, and one human being is more one than a household; so that even if one could do this, it ought not to be done; for it would destroy the polis. (Politics 1261a 16-22)
Here Aristotle opposes Socrates’ proposed “obliteration of the separate identities of individuals,” preferring the notion that “true unanimity involves agreement among distinct persons on a set of common virtues or common principles” (Miller 207). Clearly, the issue of individualism in the Politics is not easily resolved; indeed, a precise definition would prove most elusive. For our purposes here, however, let us consider both the extent and nature of Aristotle’s rejection of the extreme communism of the Republic.
In refuting communism, Aristotle proposes an opposing ideology as the basis for the fundamental relationships between citizen and citizen and also between the citizen and the state. Arguing against such practices as the sharing of wives, children, and property in common, Aristotle rejects the notion that the disintegration of the constructs of the individual will achieve greater unity. He notes, for example, that “a city is made up not only of many human beings but also of human beings who differ in kind. No city comes into existence from those who are all alike” (Politics 1261a22 Simpson). Accordingly, were no familial distinctions to be made, children, as well as all things and persons held in common, would fail to be tended to properly, for “what belongs in common to the most people gets the least care” (Politics 1261b32). Here Aristotle proposes both that self-interest is inherent to human nature and that it is our wont to focus our attentions and efforts on those affairs and interests which are most directly our own. Thus it is important to consider that private property not only provides a distinction between the public and private spheres, but also “defines the location and means of private activities” (Miller 309). Accordingly, at the very least Aristotle recognizes and is in favor of some general socio-political constructions, such as private property, which make distinctions among individuals.
It is worth noting at this point that in attributing certain rights to his political theory I do not mean to suggest that Aristotle’s primary intention was argumentation in favor of the protection of constructs resembling modern individual civil liberties. It is clear that Aristotle’s intentions in the Politics are to formulate a theory of the best possible construction of the state and in so doing to consider the models of states proposed by others as the best. I propose only that certain claims, powers, liberties, and immunities exist for individuals according to Aristotle’s formulation of the state. I do not posit that these rights, as we may reasonably refer to these four aforementioned constructs, are necessarily in themselves the ends that Aristotle seeks with his political philosophy.
So what exactly is a right? In considering this question, it is important to first examine the manner in which the word is often employed. In his Fundamental Legal Conceptions as Applied in Judicial Reasoning, Wesley Hohfeld observes that “the word ‘right’ is used generically and indiscriminately to denote any sort of legal advantage, whether claim, privilege, power, or immunity” (Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, p. 717). Hohfeld, troubled that such broad and imprecise usage of the word “right” was altogether too prevalent in the practice and discussion of the legal matters of his time, proposed that “in its narrowest sense. . .the term is used as the correlative of duty; and, to convey this meaning, the synonym ‘claim’ seems the best” (ibid. 717). In applying this Hofeldian understanding of rights to the Politics, Fred Miller notes that such analysis “proceeds from the valuable insight that the term ‘rights’ is systematically ambiguous as it is used in modern legal and political discourse” (Miller 94).
A right can thus be thought of as a claim that is secured or recognized by law and exists, therefore, when one person is declared by law as entitled to enforce a claim against another. As Miller notes, “a right, at the very least, justifies the right-holder in making a claim against the duty-holder” (Miller 95). Accordingly, a right necessarily involves a relationship between three entities: a right-holder, some type of action, and a person against whom the right is asserted. Miller proposes the following structure for examining rights in the Politics:
“(1) X has a claim right to Y’s Aing if, and only if, Y has a duty to X to do A. (2) X has a liberty right to A relative to Y if, and only if, it is not the case that X has a duty to Y not to A. (3) X has a power right to A relative to Y if, and only if, Y has a liability to a change in Y’s legal position through X’s Aing. (4) X has an immunity right relative to Y’s Aing if, and only if, Y does not have a power right to A with respect to X.” Miller 94
These four flavors of ‘right’ are abstractions, and as such it is important to recognize that they do not exist in isolation. Rather, any given situation may often involve all or several of these Hohfeldian rights. For example, a citizen of the city-state depicted in the Politics may have the claim right against a tenant to pay the previously contractually agreed upon rent, the liberty right to use the land as he might wish (or even to sell it), and the immunity right against a neighbor from building upon his land without permission. Accordingly, these claims, duties, and liberties rest on the foundation of legal enforceability. That is to say, “persons with the rights in question can appeal to courts and enforcement agencies to have their rights enforced.” (Miller 94).
To illustrate the relationship between right and duty, Hohfeld observes that both affirmative and negative rights exist. An employer, due to an agreed upon contract, may have an affirmative right against an employee for work to be rendered. Alternatively, an artist may sell a work, and as part of the sale concede all rights of reproduction and resale. Accordingly, the buyer of the artwork could be said to have a negative right against the artist selling reproductions of the original. In the former situation, the employee is under a positive duty to provide work to his employer, whereas in the latter example, the artist is held to be under the negative duty of not producing or selling certain reproductions.
Miller seeks to qualify and clarify the nature of the right-duty relationship by noting that certain rights, such as liberty rights, do not involve correlative duties. A liberty right of a landowner to dispose of his land as he pleases does not necessitate any correlative duty on behalf of another. Rather, it entails that the landowner himself has no duty to his tenant not to dispose of his own land as he sees fit. Accordingly, liberty rights may also be said to involve implicit claim rights of non-interference against others. Hohfeld further posits that rather than having a single right against all persons together that they do not trespass, as in the case of a landowner, a right holder such as this has an aggregate of rights, privilege, powers, and immunities against every single other person, that shape his relationship to other persons with respect to the thing (or action) in question.
An important locution of Aristotle’s which has often been translated in terms of a claim right is το δικαιον, a substantive noun phrase formed with the attributive adjective δικαιον and the neuter definite article το. Accordingly, Miller notes that το δικαιον may correctly be translated as ‘the just thing’, referring to “a particular application of a virtue of justice, for example a just act or what is required by justice” (Miller, NJR, p. 97). This expression is employed by Aristotle in a number of situations in which various parties in conflict have opposing claims in regards to what is theirs by right. In the Nicomachean Ethics, for example, Aristotle discusses the role of the judge as mediator in the resolution of such conflicting claims:
. . . when people dispute [amphisbetosin], they have recourse to a judge [or juror, dikasten], and to go to a judge is to go to justice [to dikaion]; for the judge is meant to be a sort of ensouled justice [empsuchon dikaion]. And they seek the judge as an intermediary, and in some places they call judges mediators, assuming that if they get an intermediate amount, they will get justice [tou dikaiou]. The just [to dikaion] is therefore in some way intermediate, if the judge is also. (EN V 4 1132a 19-24)
Aristotle holds that there are certain reasonable claims which one may make and have protected by the invocation of the mediation of a judge. Under the model Aristotle proposes here, a citizen may reasonably expect a guarantee of judicial recourse if he feels a claim, liberty, authority, or immunity he understands himself to possess has been violated; accordingly, the language of rights seems quite fitting in translation. Upon satisfactory resolution of a dispute, a disputant is said to ‘have that which is their own’ (EN 1132a 27-9). Such language clearly indicates that such a claimant has a right or entitlement according to a common understanding of justice as mediated by a judge or jury.
One might object that such language as to ‘have that which is their own’ seems to indicate desert more than a justified right. In response to this objection, however, Miller notes that in a case of disputants making competing claims against the same piece of property, for example, to ‘have one’s own’ seems to clearly mean to have one’s claim legally enforced. Indeed, it is the very function of such a judge to determine what claims are valid and what transgressions have occurred. In this vein, Miller proposes the phrase ‘just-claim right’ (i.e. a right based on a claim of justice) as most completely and accurately capturing the notion conveyed by Aristotle’s use of το δικαιον. Accordingly, even without consideration of other, more specific rights locutions, this passage illustrates that Aristotle is operating in a conceptual space whereby citizens understand themselves as having and being able to exercise a guarantee of judicial mediation in the case of an alleged transgression; we might reasonably call such a guarantee the right to pursue litigation.
The locution το δικαιον is similarly used in book three of the Politics, in which Aristotle discusses the nature of citizenship and political office:
Nor is one a citizen because he dwells in a particular place, for metics [that is, resident aliens] and slaves have a community in the dwelling-place; nor are those persons [citizens] who partake of just-claim rights [hoi ton dikaion metechontes] to the extent of undergoing and bringing lawsuits, for this [touto] also belongs to those who have a community as a result of treaties (for these [rights] also belong to these persons). In many places, moreover, the metics do not even partake completely in these rights [touton], but must be assigned a patron, so that they partake in such a community in an incomplete manner… (III 1 1275a 7-14)
This passage draws upon the particularly illuminating notion that for Aristotle, real distinctions are to be made between the citizen and the non-citizen (be that person a slave, metic, woman, or foreigner). Such distinctions are the result of the conception of the nature of citizenship as a protective and shared status. The constructs of citizenship are defended by the greater political system, which is able to be engaged by the citizen to defend or assert certain claims, powers, liberties, and immunities. Accordingly, the citizen is a function of the aggregate rights and duties held by someone of such status.
Furthermore, the translation of τον δικαιον, Miller points out, has been expressed in terms of rights by a number of translators and commentators, including Newman (1887), Jowett (1984), Barker (1946), and Robinson (1962), who offer the following, respective translations: ‘political rights’ ‘legal rights’ ‘civic rights’ and ‘the rights of citizens’. Thus, the ability to call upon legal recourse with reasonable consistency and dependability is seen by many fundamentally in terms of rights. Whereas a slave or woman could be prevented from taking legal action, a citizen could not be kept from doing so. One thus charged by another stood in obligation to respond accordingly, just as any Hohfeldian right claim is to be paralleled by a corresponding and relative duty. Thus because claim rights are necessarily claims against other individuals, corresponding and correlative duties are imposed as a result according to the Hohfeldian system of rights analysis. Accordingly, Miller proposes that the phrase to dikaion (like its Latin counterpart ius) is employed in a number of locations to express such a duty.
Aristotle evokes the locution of το δικαιον in a such a fashion again in book three of the Politics when he comments on Lycophron’s theory of the polis as a sort of alliance. Lycophron holds that the law is a form of contract (suntheke) which acts as ‘a guarantor of men’s rights against one another’ (egguete allelois ton dikaion, 1280b11, Miller’s translation). Lycophron’s view was that individuals possessed “just claims against others that impose duties on them, and that the polis should protect these claims” (NJR, Miller p. 99). While Aristotle believes the protection of such rights to be a necessary precondition for the existence of the polis, he does not hold this protection as the natural function of the state:
a city is not a matter of sharing a place in common or for the purpose of not doing each other wrong and for commerce. Rather, while these things must be present if there is to be a city, not even when they all are present is there yet a city, but only when households and families form a community in living well for the sake of a complete and self-sufficient existence. (Politics 1280b 29-34)
Thus Aristotle’s consideration of Lycophron is illustrative of his conception of the polis as more than a simple guarantor of contracts, but it is also provides illumination as to what he regards as necessary for the environment in which the good life is to be lived. Given full opportunity to deny the role of the polis as a guarantor of what we may correctly refer to as rights, Aristotle chooses rather to affirm the necessity of such rights, diminishing them only in their position relative to what he holds to be the loftier functions of the polis.
Several locutions can also be shown to be representative of the Hohfeldian notion of liberty as it pertains to Aristotle’s conception of the polis as expressed in the Politics. An individual can be said to possess such a liberty if they are in a state free from obligation to complete a certain action, while at the same time remaining free from potential negative duties to not perform the same given action. As we recall, all Hohfeldian rights are necessarily relationships between persons, extending to actions or objects as the case may be. Thus one can be said to have a liberty right if one is neither compelled nor prevented from the execution of a given action. According to both the theoretical model Aristotle proposes in his Politics and the model that was in existence and practice throughout much of ancient Athenian history, a citizen would have the right (i.e. the liberty right) to attend an assembly without such attendance being compulsory.
Miller stresses the importance of liberty rights in their function as defining “a sphere within which the agent is able to choose among alternatives” (NJR, Miller p.102). Accordingly, Miller points to traditional translations of the two terms used by Aristotle to express these notions, eleutheria and exousia, as ‘freedom’ and ‘liberty’ respectively. Miller cites the notion of freedom (eleutheria) as “prominent within the ideology of ancient Greek democracy,” pointing in particular to its role as a central theme of the funeral oration of Pericles (Miller 102). Moreover, as Aristotle writes in the Metaphysics “the free human being exists for his own sake and not for the sake of another” (I 2 982b26). The free person, or eleutheros, can thus be understood in contrast with the slave, who is owned by, and therefore exists for, the sake of another person.
Similarly, according to Miller the term exousia, “denotes the unobstructed ability to perform a particular action” (Miller 102). Accordingly, the term exousia is used in book four of the Politics to describe a form of democratic constitution whereby citizens must possess a certain amount of wealth to qualify for political office: “a person who possesses [sufficient property] must have the liberty [exousian] to partake [in offices] and those who lose it ought not to have it” (Miller’s translation, IV 4 1291b40-1). In contrast, Aristotle also notes that “in many oligarchies one does not have the liberty (ouk exesti) to make [commercial] acquisitions, but the laws prevent it” (V 12 1316b3-5). In this regard, citizens of Aristotle’s polis would have the liberty right to political participation without being required to exercise that right. This freedom can be understood as a right in that the correlative duty of non-interference is imposed on others as a result. Thus, conceptions of freedom and liberty are central to Aristotle’s understanding of the definition of citizenship: “a citizen is one who has the liberty to partake in [exousia koinonein] deliberative or judicial office” (Pol. III 1 1275b18-19;cf. Plato, Laws, VI 768b2). Therefore, according to Aristotle for a citizen to be prevented from exercising this right of political participation he would have to be treated in the manner of a slave, woman, or foreigner; that is to say, he would have to be treated as a non-citizen.
Authority rights are also present in Aristotle’s Politics. Miller notes that “the term kurios is applied to persons, groups of persons, offices, political groups, and the law itself” (Miller 104). Translating kurios in terms of authority, one can take esti kurios as meaning ‘is authoritative’ or ‘has the authority’. Accordingly, Miller parallels the usage of the term kurios in Aristotle to the Hohfeldian notion of a power right: “by exercising authority, X can create specific rights, duties, powers, etc., on the part of Y” (Miller104). The term kurios used with an infinitive can be taken to indicate that a certain action is under the authority of a given person. The adjective with a genitive can also indicate those “things or affairs over which the person or office has authority,” such as sacrifices (kurioi ton thusion). Furthermore, the genitive plural can be used to designate those persons over whom an authority right is exercised.
Aristotle’s usage of the term kurios can be compared with his usage of the similar term dunamis, meaning power. In book two of the Politics Aristotle writes, “Solon seems at any rate to grant the most necessary power [dunamin] to the people, namely to elect and audit the offices, for if they did not have the authority [kurios] over this, the people would be a slave and an enemy [of the constitution]” (Pol. 2 12 1274a15-18). Thus the aforementioned liberty right of political participation can now be considered correlative to the authority right of the people to have actual influence and impact upon the affairs and structure of the state. Furthermore, the relationship between the terms kurios and dunamis and their implications for our considerations of rights in Aristotle’s politics can be understood in terms of legal conception and enforceability:
There is also a puzzle concerning [the king’s] power (dunameos): ought one who is going to be king to have some strength about him, by which he has the power to force those who do not wish to obey, or how else can he conduct his office? For even if he had the authority (kurios) according to law and acted in nothing according to his own wish contrary to the law, nevertheless he must possess power (dunamin) by which to guard the laws (Pol. 3 15 1286b27-33)
Thus, as Miller notes, this locution illustrates that the term kurios is understood as a legal concept “defined by the constitution and laws of the polis” (Miller 105). Accordingly, the possession of constitutional or legal authority, i.e. kurios, does not necessarily imply enforceability, or dunamis (that is, the power to enforce). Conversely, “it also implies that one may exercise power (dunamis) without legal authority” (Miller 105). Thus the courts are to act as a venue for the enforcement of claims regarding authority. In as much as one could be said to understand oneself to possess certain authorities and to be able to enforce those authorities through legal bodies and practices backed by the power of the state, one could be said to possess an authority right in the full Hohfeldian sense of the term.
In examining Aristotle’s Politics according to the Hohfeldian framework of rights, Fred Miller proposes the following relationships between locutions and the categories of rights to which they correspond:
|Claim||τὸ δίκαιον (to dikaion)|
|Liberty, Privilege||ἐξουσία (exousia)|
|Authority, Power||κύριος (kurios)|
Thus, while the logical structures associated with Hohfeldian rights have been shown to be present in Aristotle’s Poltics according to this rubric, Miller remarks: “In spite of this correspondence there still may be reluctance to concede a concept of rights to Aristotle on the grounds that no single Greek word corresponds to the single modern term ‘right’” (Miller 106). Yet as we have also shown, so long as the underlying logical associations can be compared and maintained as similarly related, no such word need exist. Indeed, the very motivation for Hohfeld’s analysis of the term right was its widely varied and ambiguous use in the legal proceedings of American courts in the early twentieth century.
Miller thus establishes with his argumentation that the general view held by Aristotle in book three of the Politics is that “the right to authority ought to be based upon a claim of justice” (Miller 107). This notion is expressed in passages which connect the concept of authority with the concept of a just-claim right: ‘if one man is better than the other excellent persons in the government, this person ought to have authority based on the same just-claim right’ (Pol. 3 13 1283b21-23). Similarly, the just claims of citizenship are related to claims of authority and liberty. “The citizen,” as Miller notes, “has the liberty to participate in deliberative and judicial office (1 1275b18-19). Hence, he may not be hindered by other citizens or officials from participating in such offices” (Miller 107). Ultimately, the system of Hohfeldian rights as it exists in Aristotle can be seen as a ‘family of concepts’ (Miller’s term) which are closely related and serve the common purpose of conflict resolution among opposing claimants. Fundamentally, the social constructs which establish citizenship according to the conceptions of Aristotle thus defined compose a body of rights consistent with Hohfeldian analysis.
In replying to objections against a theory of rights as proposed in his Nature, Justice and Rights in Aristotle’s politics, Fred Miller notes a number of protestations worthy of consideration. Primarily, “the failure to recognize that Aristotle uses ‘rights’ locutions has resulted, at least in part, from the conviction that the concept of rights is a peculiarly modern European development” (Miller 111). Fundamentally, the cause for this misconception, as well as much other general disagreement as to the presence or absence of rights in Aristotle’s Politics, lies in the broad ambiguity of the term ‘rights’ when left undefined and unqualified. Many different theories of rights are in existence and practice today: human rights, natural rights, civil rights, etc. Simply because Aristotle does not appear to fully subscribe to any one particular modern manifestation of rights does not preclude the existence of rights in his political theory. A prominent opponent of Miller on this particular topic, Alasdair Macintyre argues that “there is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the middle ages” (MacIntyre, After Virtue 66). Yet his disagreement with Miller only becomes clear as he qualifies what he means by ‘rights’:
By ‘rights’ I do not mean those rights conferred by positive law or custom on specified classes of persons; I mean those rights which are alleged to belong to human beings as such and which are cited as a reason for holding that people ought not to be interfered with in their pursuit of life, liberty and happiness. They are the rights which were spoken of in the eighteenth century as natural rights or as the rights of man. MacIntyre, After Virtue
Thus we see that while Miller and MacIntyre may very well go on at great length to disagree with one another over the naturalness of these rights and the diction used to describe them, that the logical structures of Hohfeldian rights underlies the Politics is left unchallenged in any substantive sense. Indeed, much that has been written in disagreement with Miller appears to be caused by a difference in interpretation of the term ‘rights’, a problem remedied by the application of an objective, logical, legal framework (i.e. Hohfeld).
Yet others, including Michael Villey, argue that while the Latin ius can be understood in terms of rights, the ancient Greek to dikaion “could only refer to an objective condition of justice, viz., the correct assignment or relation of things to persons, and thus could not be used for ‘subjective’ rights (Villey, via Miller 112). As has been shown, however, “to dikaion is used in classical Greece by individuals to assert that they have a just claim to something, and that other citizens, jurors, and officials are expected to respond to this claim in regular legal and political proceedings” (Miller 112).
Malcolm Schofield, in his Sharing in the Constitution, responds to Miller’s thesis of the existence of rights in Aristotle’s Politics by asserting that rights cannot occupy a central role in Aristotle’s political theory because “Citizenship as Aristotle conceives it is a matter not primarily of possessing certain rights, but of ‘sharing in the constitution’” (Schofield 831). Schofield further notes in the introduction of his analysis that he holds himself to be operating according to traditional interpretations in Aristotelian scholarship. Although Schofield’s commentary on Miller’s Nature, Justice, and Right in Aristotle’s Poltics is worthwhile in its analysis, it is distracted in part by its focus on the Athens during the lifetime of Aristotle. Rather than examining the theoretical framework within which Aristotle operates in his Politics Schofield often refers to the actuality of the political state of affairs in fourth-century B.C. Athens. While Aristotle’s conception of the state is meant to be normative and practical in scope, and while it surely is also heavily influenced by the polis in which he lived, it is nonetheless a conception. Thus Aristotle is operating in a theoretical space in his Politics, a space upon which we should be careful of casting aspersions grounded solely in the analysis of historical Athens.
Although in general disagreement with Miller, Schofield does however concede that the citizens of Aristotle’s polis could be said to possess rights qua citizens. In conceding this point Schofield rejects Miller’s arguments around the usage of the phrase to dikaion as a basis for a theory of political rights. To start, Schofield remarks that “historians of the institutions of classical democratic Athens have no qualms in introducting the topic of citizen rights into their accounts”:
“The rights of anyone in Athens, including his right to prosecture at law, depended on his status, on whether he was a citizen (polites or astos) or an alien (xenos) or a slave (doulos or oiketes)” Douglas M. MacDowell
“The principal privilege of an Athenian citizen was his political rights; in fact they were more than just a “privilege”: they constituted the essence of citizenship” Mogens Herman Hansen
Having thus noted and conceded these points, Schofield proceeds to offer a viewpoint in opposition with Miller’s on a number of accounts. He begins by referring to the language of rights such as we find in the American Declaration of Independece:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. American Declaration of Independence
In proceeding, Schofield proposes that “virtually none of this would have seemed self-evident to an ancient Athenian,” on the grounds that such Athenians would have lacked the vocabulary for the conception of the general notion of a right (Schofield 832). As has already been established, the lack of exact correlatives in ancient Greek for such modern terms as “right” does not necessarily preclude the existence of similar or parallel logical constructs which, once properly identified, can be understood in terms of rights. Yet the notion of freedom of political participation would not have been a foreign concept to the ancient Athenian, nor would the freedom to pursue happiness have been unfamiliar. Furthermore, one could point to a number of points in Athenian history whereby the government was altered, abolished, and even instituted anew according to the agreement of its constituents whose participation in these processes entailed a number of rights, including the liberty right of political participation.
Subsequently, Schofield argues that Miller’s analysis of the phrase to dikaion in terms of rights is incorrect. While noting that to dikaion can be, and indeed has been, translated in terms of rights, Schofield proposes that to do so is to assign greater objectivity and certainty to the term than would have been appropriate. Yet his reasoning for doing so again points to an analysis of actual Athenian government rather than to specific locutions in the Politics. Schofield notes that “[no Athenian] would have supposed it obvious that human beings had equal rights simply in as much as they were human” (Schofield 832). While this may be true, Athenian citizens would also not have thought lightly of their citizenship nor the social constructs and guarantees associated with it. Such an argument may address the issue of whether or not such rights as can be found in the Politics are ‘natural rights’, but to ignore the underlying logical structures of rights and rights claims that are clearly present in the Politics simply because they do not apply to non-citizens would be an unfortunate miscalculation. Additionally, Schofield’s position that the phrase ta dikaia be translated in a number of locations cited by Miller as “the legal system of justice” rather than “legal rights” is semantic in nature and fails to address the clear logical structures proposed by Hohfeld and applied by Miller.
Schofield’s analysis is illuminating, however, in that his juxtaposition of the rights which Miller proposes exist in the Politics with both the actuality of classical Athens and such language as is found in the American Declaration of Independence calls for proper framing and qualification of the assertion of rights in Aristotle’s Politics. I propose that the political theory described by Aristotle in his Politics was certainly based at least in part on the actuality of the political structures he experienced during his lifetime. Thus, in crafting his political theory Aristotle set forth in his Politics some constructs identified by Miller and others as the foundation of what are presently understood as rights. Throughout the course of western civilization, these constructs have both existed in practice and been theoretically debated; ultimately, understandings of rights as ‘fundamental’, ‘human’, and ‘natural’ arose, and it is with these terms that rights are now discussed on a global scale. Accordingly, the rights found in Aristotle’s Politics are worthy of our consideration not because they are exactly the same as a modern understanding of rights, but because they represent both the beginning and the foundation of any such understanding.
- Alasdair MacIntyre, After Virtue: A Study in Moral Theory (University of Notre Dame Press, 1984, 2nd edn.).
- Brown, Vivienne. ““Rights” in Aristotle’s Politics and Nicomachean Ethics.” The Review of Metaphysics 55 (2001): 269-295.
- Hohfeld, W. N. (1923), Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, Conn.).
- Miller, Fred. “Aristotle’s Political Theory.” Stanford Encyclopedia of Philosophy. 2002. Dept. of Philosophy, Stanford. 1 Apr. 2008 http://plato.stanford.edu/entries/aristotle-politics/.
- Miller, Fred D. Nature, Justice, and Rights in Aristotle’s Poltiics. Oxford: Clarendon P, 1995. 87-139.
- Phillips Simpson, Peter L. The Politics of Aristotle. Chapel Hill: University of North Carolina P, 1997.
- Schofield, Malcolm. “Sharing in the Constitution.” The Review of Metaphysics 49 (1996): 831-858.
- Villey, M. (1946), ‘L’Idee du droit subjectif et les systemes juridiques romains;, Revue historique de droit, ser. 4 24-5, 201-27”.