A Symposium on Natural Right and Natural Law*
Classical Natural Right
Joseph E. Goldberg
ALTHOUGHTHE Equal Rights Amendment
failed to obtain the requisite number of
state ratifications for adoption to the Con-
stitution, the fundamental issue posed by
the amendment will continue to be
debated. Stated simply, the issue concerns
what considerations should sexual dif-
ferences now be accorded in political life?
Does the fact that a person is a man or a
woman determine what he or she can do,
and thus allow a political community to
state what they may do? What is by nature
the political significance of the two sexes?
A denial that differences exist between
the sexes contradicts the most obvious
facts of life, but what is to be made
politically of these obvious facts is far
more controversial.
To pose the question of the Equal Rights
Amendment in the above manner returns
us to the classical question of what is by
nature right or just, l e . , the quest for what
is right independent of its enactment into
law by a political community. The natural
right teaching of classical political
philosophy assumes that there is a
knowable standard independent of con-
‘The four papers that follow were delivered at a
meeting of the Middle Atlantic States Political
Science Association held in Washington, D. C.,
January 1982. The symposium was chaired by
Professor George W. Carey, Department of
Government, Georgetown University, and was en-
titled “Natural Law and Natural Right.”
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ventional justice which can be used to
measure and guide political life. The
search for natural justice and right
emerged with political philosophy, and is
associated initially with Socrates, Plato,
and Aristotle.
Although t h e classical political
philosophers taught that not all men had
the natural equipment to become
philosophers, they also taught that the
understanding obtained through
philosophical inquiry was indispensable
for leading the highest life. Implicit in this
statement is the denial that all pursuits of
man are equal and that only knowledge of
the natural hierarchy of desires or wants
can provide proper guidance for man.
This is, of course, knowledge of what is
naturally right for man. In antiquity as
well as in contemporary life, the argument
has been advanced that the good is the
pleasant. The good life is a life dedicated
to the pursuit of pleasures. Pleasure is
good and pain is harmful. Yet, is it not
possible to recognize that certain
pleasures are harmful to man while the
experience of certain pains is beneficial?
Consumption of alcohol and the use of
drugs provide momentary pleasure but
ultimate harm, while surgical procedures
provide momentary pain but ultimate
good for the patient.’ Clearly, one must
have knowledge of what pleasures are
good and what are bad. This returns the
Spring/Summer 1984
 thoughtful man to the question of natural
right.
The intention of the following discussion
is to provide an introduction to the
classical natural right tradition.* That
tradition has become obfuscated to the
modern student of politics in part because
the assumptions of classical political
philosophy were challenged by the
modern political philosophers of the six-
teenth and seventeenth centuries, and in
part because the rise of modern social
science, a movement prepared by both
modern political philosophy and modern
natural science, called into question the
possibility of achieving the objectives of
the ancients. The enterprise of political
I philosophy is held to be either unscientific
in that it does not conform to the re-
quirements of a “value-free” social science
(the contention of positivism) or oblivious
of the historical character of human
phenomena (the contention of
historicism). In the latter criticism objec-
tive truth is said not to exist because all
truth is relative to its particular setting or
time. Both modern positivism and
historicism have denied the possibility of
political philosophy and the existence of
natural right.3
The recovery of the classical natural
right teachings has also been impeded by
the modern natural rights doctrine. The
modern doctrine is associated primarily
with the political philosophy of Thomas
Hobbes and John Locke. These rights are
said to be possessed by all men at birth
and are derived from the one original
right of self-pre~ervation.~ Natural rights,
according to the modern understanding,
do not owe their existence to human ac-
tion, but governments are created, in fact,
to secure them for all men. For this
reason, the natural rights doctrine em-
phasizes the rights of men and not their
duties or responsibilities.
This essay will examine the classical
understanding of nature and the way in
which the appeal to nature provided the
standard by which to measure and guide
, political life. The discussion will primarily
emphasize the political philosophy of
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Plato and Aristotle. Because this essay is
intended as an introduction, references to
selected scholarly literature will be provid-
ed in the notes for those who wish to ex-
plore the numerous questions raised by
classical political philosophy and the no-
tion of classical natural right.
I
POLITICAL LIFE EXISTED prior to the
emergence of political philosophy and the
discovery of natural right. For natural
right to be discovered, the idea of nature
first had to exist. Nature was not known
and could not serve as the justification of a
particular way of living for pre-
philosophical man, who understood things
in terms of custom or way. The
heterogeneity which characterizes
political phenomena, the variety of laws
and the diversity of practices which are
reflected in political life, was understood
as a reflection on the numerous customs
or ways distinct to a particular people. So
too were other nonpolitical phenomena
understood as reflecting the customs or
ways particular to different things. Dogs
and cats, men and women, Jews and
Amalekites manifested ways particular to
themselve~.~
The diversity of the ways or customs of
people required ultimately a justification
as to why one’s own way was superior to
other ways. The pre-philosophical
justification rested on ancestral authority.
The origin of one’s customs is associated
with the founders of the ancestral line,
and the account of the beginnings of a
people known through an oral and/or
written inheritance established the ab-
solute superiority of the founders over
other humans. They are identified with
the gods, and in turn the way of life
established by the fathers is identified as a
divine way. Pre-philosophical society iden-
tified their legal codes as divine in origin,
and their justification was rooted in divine
authority.
Since the origin of the divine codes was
not known directly by the existing genera-
tion, the authenticity of the account rested
223
on hearsay. As different people exhibited
different customs and provided distinct ac-
counts to justify the rightness of their
ways, so was there a heterogeneity of ac-
counts of beginnings: the beginnings of a
particular people, the beginnings of man,
and the beginning of the world. Clearly
there were observable differences in these
accounts of the first things; and, as stated
above, the claim of the rightness of one
over the other rested on the authority of
the community. Unless that authority was
challenged or doubted, there could not
emerge a quest to discover the true ac-
count. The authoritative nature of pre-
philosophic society precluded t h e
emergence of philosophy. For philosophy
to arise and nature to be discovered,
authority had to be challenged. “The
emergence of the idea of natural right
presupposes, therefore, the doubt of
authority.”6
The rejection of the pre-philosophical
accounts constituted a rejection of hear-
say. Hearsay was replaced by a desire to
know things either through observation
and/or human reason. Relying upon
human observation, the totality of observ-
able phenomena leant itself into a division
between those things that are of human
origin and those things of nonhuman
origin. We recognize that man is not the
creator of all things. Those things which
owe their existence to human agency are
artificial. They come into being as a conse-
quence of human intention and they could
be otherwise if their human creator so
conceived. Artificial things are as they are
because of human intention. Since the
origin of artificial things can be traced to
human origin, it is clear that those things
which come into being through human
contrivance cannot be the first things.
In contrast to the artificial is the natural.
“ ‘Nature’ is taken to mean many things,
but primarily it means the things, or the
principle of the things, that do not owe
their being to human a g e n ~ y . ”Unlike
~ ar-
tifacts which owe their being to human
agency, natural things have no apparent
force or agency visible as their cause. So
that when we describe something as
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natural, w e mean “There is only
necessity-which, as the alternative to in-
telligence, is not an explanation but a con-
cession that we find the natural
phenomena in principle unintelligible.”*
The attempt to understand the principles
of all things and thus acquire knowledge
of the beginnings of these natural
phenomena is the philosophical enter-
prise. Philosophy assumes not only the ex-
istence of first things, but that the first
things may possibly be known through
human reason.
The discovery of nature introduced a
distinction between things that were
natural (physis) and things that were con-
ventional norn no^).^ A new question con-
cerning political phenomena could now be
introduced: Is political life and its stand-
ards of right and wrong, natural or con-
ventional? The preSocratics believed that
political life belonged to the realm of the
conventional. Political right owed its
origin to human agency through human
agreement. Since different societies ad-
vocated different notions of justice and
justice within a society was identified with
the laws, agreed upon by men, observa-
tion of political life provided strong sup-
port to the conventionalist position.
II
ClCERO IDENTIFIES SOCRATES as the founder
of political philosophy.lO According to this
tradition, Socrates called philosophy down
from the heavens. In particular, Socrates
is said to have examined human things by
inquiring into their distinctive character.
According to Xenophon, Socrates “would
hold discourse, from time to time, on what
concerned mankind, considering what
was pious, what impious, what was
becoming, what unbecoming; what was
just, what unjust. . . .‘’I1 The recognition of
human things, however, is dependent
upon the recognition of nonhuman things
whether they are of natural or divine
origin. To begin with the examination of
human things, as Socrates did, required
some understanding of the totality of
things or some understanding of the
Spring/Surnmer 1984
whole of which the human things are a
part.
Man finds himself beneath the heavens
and above the earth. This condition is per-
manent and is fundamentally an enigma.
Furthermore, since man as a corporeal
and thinking being is of nature in the same
way that a tree, or a dog, or a planet is of
nature, the condition of man is derivative
from the whole as are all natural things.
But our knowledge of this derivation as
well as the exact character of the whole
itself is of a different order from that
knowledge which we possess of human
things. We are limited to the examination
of the whole that is visible to us, and we
are required by necessity to discover the
true whole aware that we are restricted in
its examination. This awareness that we
pursue the truth about the whole without
ever having seen the visible whole in its
e n t i r e t y is what Socrates called
“knowledge of ignorance.”12 We know
that which we do not know.
The whole for Plato consists of parts
which are heterogeneous. Its heterogenei-
ty fundamentally is not rooted in the sensi-
ble qualities of the parts, but rather the dif-
ferences are to be understood in terms of
the eidos, the form or shape of a thing.
Things, whether man or a beast, are
observed, but it is not the observation of
the sensible qualities which provides
knowledge of the essential forms of the
parts. The eidos is grasped noetically, i.e.,
the eidos is apprehended by the intel1e~t.l~
For this reason, the Platonic Socrates
begins his examination of the nature of
things not with the observation of their
sensible qualities but with opinions about
their natures. The examination of clashing
speeches about things, dialectics, is the
means of transcending opinion and replac-
ing it with knowledge. To be certain, there
is no assurance that such inquiry will ob-
tain the truth or knowledge of things.
Despite the fact that human things can-
not b e fully understood without
understanding their relationship to
nonhuman things, man does live within a
particular accessible whole. It is the whole
between the earth and the heavens; and
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though it ultimately is part of the entirety
of things, the human things can be
understood in terms of man’s eidos. Thus,
Socrates examined human things with this
awareness of the human situation.
Political philosophy also begins with an
examination -of opinions about what is
right or just for man.14 The classical
political philosophers were as aware as
the pre-Socratics that different political
communities held vastly different opinions
about the nature of man and what is pro-
per for a good life. Unlike the conven-
tionalists who appeared to identify the
good with the pleasant,15 the Socratics
believed that the good is more fundamen-
tal than the pleasant and that knowledge
of the good provides guidance as to
whether or not certain pleasures should
be satisfied. Guidance can only be provid-
ed, of course, if one knows what is and
what is not good for man. This knowledge,
in turn, is dependent upon knowledge of
man’s eidos. Only if one pursues
knowledge of the nature of man can one
know whether or not something is in ac-
cord with that nature or violates that
nature. Stated simply, only if we possess
knowledge of what is by nature right for
man can we determine whether a want or
a desire should be satisfied. Classical
natural right teaching therefore perceives
a natural hierarchy of human objectives.
For classical political philosophy, “The
good life is the perfection of man’s nature.
It is the life according to nature.”16 Man’s
soul must be properly ordered in order to
achieve its excellence.
111
CLASSICAL POLITICAL PHILOSOPHY believed
that the perfection of man could rarely oc-
cur in isolation from other men. Political
life is required for the pursuit of human
excellence. As Aristotle observed: “The
man who is isolated-who is unable to
share because he is already self-
sufficient-is no part of the polis, and must
therefore be either a beast or a god”
(Politics 1253a). A few lines later Aristotle
adds, “Man, when perfected, is the best of
225
animals: but if he be isolated from law and
justice is the worst of all.” Between man’s
godly status and man’s beastly status is the
realm of politics or civilized life, and
within this conventional order are to be
found a variety of understandings of
justice-some superior and 6ome inferior.
But even the inferior kind of justice ap
pears superior to no justice. Without
political life, justice can only be imperfect
if it exists at all.
Self-sufficiency for Aristotle does not
refer to the simple provisions necessary to
sustain life. Rather, a self-sufficient man is
one who has knowledge of the desires
natural to man and their natural hierar-
chy, and he can fulfill those desires
according to their natural importance.
Aristotle provides a discussion of man’s
virtues in the Nicomachean Ethics in
Books 111 to V. An examination of these
books shows that there is an order accord-
ing to which some of the virtues are lower
in rank than others. All of the virtues,
Aristotle observes, are commanded by the
law (1129b14). The conduct of a brave
man not to desert his post, the conduct of
a temperate man not to commit adultery,
and the conduct of a gentleman not to
speak ill are used as examples to
demonstrate how certain actions are com-
manded or forbidden. But Aristotle adds a
critical qualification. The law can com-
mand rightly or poorly. Therefore, proper
legislation would depend upon a proper
understanding of the virtues. Further-
more, if the law commands rightly or
poorly, there must exist a standard of
rightness independent of the law which
serves as the standard by which to
measure law. The legal is not simply to be
equated with the just.
Aristotle argues in the Nicomachean
Ethics ,
Political Justice is of two kinds, one
natural, the other conventional. A rule
of justice is natural that has the same
validity everywhere, and does not de-
pend on our accepting it or not. A rule
is conventional that in the first instance
may be settled in one way or the other
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indifferently, though having once been
settled it is not indifferent (1 134b24).
A similar statement is to be found in
Aristotle’s Rhetoric (1373b ff.) where he
says that the universal law is “the law ac-
cording to nature, so whereas the one
kind of law is man-made, there is a law
which is not man-made.” Aristotle adds
that the universal law is divined by all
men. Natural right for Aristotle owes its
strength, unlike positive law, to the fact
that it is not of human creation. Natural
right for Aristotle “is that right which must
be recognized by any political society if it
is to last and which for this reason is
everywhere in force.”17 Near the end of
Book 111 of the Politics, Aristotle speaks of
a kind of kingship ruled by a man whose
virtues are so outstanding as to make him
naturally as a god among men
(1284a4-15). Such men are themselves law
because it would be ridiculous to try and
legislate for them. Thus, this best regime is
without positive law. Understood in light
of the arguments in the Nicomachean
Ethics and the Politics, natural right helps
explicate the “flooring and the ceiling, the
minimum condition and the maximum
possibility of political society. . . .”I8 These
extremes of political life are natural. To
rise above the ceiling of political life man
must be as a god, and to sink beneath the
flooring of political life man must be as a
beast.
Conventional political life consists of a
variety of regimes each of which reflects
its particular understanding of justice
through its laws. These ways of life are in-
formed by dominant principles which in
turn reflect the principal characteristic@)
of the ruling element. A democratic form
of government will have democratic laws
reflecting a democratic understanding of
what is just, and an oligarchic form of
government will have oligarchic laws
reflecting an oligarchical understanding of
the just. By examining the principles of
justice in the regime, i.e.,what the regime
understands as the proper life for man, it is
possible to order regimes in terms of their
Spring/Summer 1984
soundness: Aristotle observes in the
Politics that “it is clear that the laws in
conformity with the correct constitutions
must necessarily be just and those in con-
formity with the divergent forms of con-
stitution unjust” (1282b6). The question of
the rightness of the laws cannot be
separated from the question of the
rightness of the regimes, and, therefore,
Aristotle’s inquiry returns to the discovery
of what is by nature the proper regime for
man. For Artistotle as well as Plato the
legal does not constitute the fundamental
political expression.
IV
POLITICAL LIFE for the ancients was
understood to exist not for the sake of
IHarry V. Jaffa, “Aristotle,” in History of Political
Philosophy, 2nd ed., ed. Leo Strauss and Joseph
Cropsey (Chicago, 111.. 1972), p. 75. 2The modern at-
tempt to recover an understanding of the classical
natural right tradition owes its greatest debt to the
scholarship of Leo Strauss. This introduction to
classical natural right has benefited greatly from his
work. Although the subject of natural right is treated
in many of his works, his major treatment of its
origins, formulation by the ancients, and critique by
modern political philosophers is to be found in
Natural Right and History (Chicago, Ill., 1953). A
recently published article, Richard Kennington.
“Strauss’s Natural Right and History,” Review of
Metaphysics, 35 (September 1981). 57-86, stands as
one of the most important and helpful works in
understanding the structure of Natural Right and
History as well as continuing the recovery of the
tradition. See also Strauss’s writings: “Natural Law,”
International Encyclopedia of the Social Sciences,
Vol. 1 1 (New York, 1968), 80-85. 3See Strauss,
Natural Right and History, pp. 1-80; Kennington, pp.
63-70; and Leo Strauss, “What Is Political
Philosophy?” in What Is Political Philosophy? and
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mere life, but was directed toward human
perfection or virtue. For man this means
that the good life is that which fulfills
man’s natural inclinations in their proper
order to the highest degree possible. As
discussed in earlier sections of this article,
the perfection of man’s nature, according
to classical political philosophy, required
that men live together within political life.
Since men differ in their understanding of
what is human perfection, the objectives
or ends of political life which reflect their
understanding will also differ. These dif-
ferences constitute the fundamental prob-
lem for political life since they invite
serious men to reflect upon the nature of
the good. The pursuit of natural right and
the importance of political philosophy for
statemanship arises from reflection upon
the human situation as we confront it.
Other Studies (New York, 1959), pp. 18-27. ‘For a
discussion of modern natural rights see Harry V. Jaf-
fa, “Natural Rights,” International Encyclopedia of
the Social Sciences, vol. 1 1 (New York, 1968), 85-89;
Strauss, Natural Right and History, pp. 165-323; and
Kennington, pp. 80-86. SStrauss, Natural Right and
History, pp. 82 ff.; and Kennington, pp. 71-72.
6Strauss, Natural Right and History, p. 84. 7Joseph
Cropsey, “Political Life and a Natural Order,” Jour-
nal of Politics, 23 (February 1961), 47. Vbid., p. 48.
gStrauss, Natural Right and History, p. 90; and Ken-
nington, pp. 73-74. 10Cicero,Tusculan Disputations
v. 10; See Leo Strauss, The City and Man (Chicago,
Ill., 1964). p. 13. IlXenophon, Memorabilia 1.1.16;
and Strauss, Natural Right and History3p. 13. 1ZPlat0,
Gorgias 509a; See also Kennington, pp. 75-76; and
Jacob Klein, flato’s Trilogy (Chicago, Ill., and Lon-
don, 1977), pp. 137 ff. I3Strauss,Natural Right and
History, p. 123. “Ibid., p. 124. 151bid.,p. 126. Vbid.,
p. 127. 17Aristotle,Nicomachean Ethics 1134b20 ff.;
and see Strauss, “Natural Law,” p. 81; and Harry V.
Jaffa, Thomism and Aristotelianism (Chicago, Ill.,
1952). pp. 30 ff. ’*Aristotle, Politics 128a4-15,
1288a15-29.
22 7