...... A REPLY TO KELSEN’S CRITIQUE OF ARISTOTLE’S CONCEPT OF JUSTICE

Arthur Cristóvão Prado } } Universidad de São Paulo, São Paulo, Brasil]

Abstract

Kelsen wrote a book, much less known than his Reine Rechtslehre (Pure Theory of Law), called Was ist Gerechtigkeit (What is Justice), in which he attempts to show how and why several theories of justice, formulated by authors ranging from Greece to European Illuminism, are wrong. One of those concepts is Aristotle’s, as exposed in his Nichomachean Ethics. In this article, I argue that in order to show Aristotle wrong, Kelsen misinterprets his theory, then ignores the practical consequences it implies. I attempt to demonstrate that, although highly influenced by the (retrograde) mores of his time, Aristotle’s theory can be useful to us today, which Kelsen denies. Finally, I present a challenge regarding one point raised by Kelsen which is particularly hard to reply.

Keywords: Justice; Ethics; Critic; Actuality; Theory of Justice.

Recibido: 24 de julio de 2018. Aprobado: 24 de octubre de 2018

Praxis Filosófica, No. 48 enero-junio 2019: 53 - 67 DOI: 10.25100/pfilosofica.v0i48.7303 (D): 2389-9387 (I): 0120-4688 / ISSN ISSN Una respuesta a la crítica de Kelsen del concepto de justicia de Aristóteles

Resumen

Kelsen escribió un libro, mucho menos conocido que su otra obra Reine Rechtslehre (Teoría Pura del Derecho), llamado Was ist Gerechtigkeit (Que es Justicia), en el que busca mostrar cómo y por qué diversas teorías de la justicia, formuladas por autores que van de Grecia a la Ilustración europea, están equivocados. Uno de esos conceptos es el de Aristóteles, conforme expuesto en su obra Ética a Nicômaco. En este artículo, argumento que, para presentar que Aristóteles está equivocado, Kelsen interpreta erróneamente su teoría, y entonces ignora las consecuencias prácticas que implica. Busco mostrar que, aunque muy influenciado por las costumbres (retrasadas) de su tiempo, la teoría de Aristóteles puede ser útil para nosotros hoy, lo que Kelsen niega. Por último, planteo un desafío relativo a un punto planteado por Kelsen que es particularmente difícil de contestar.

Palabras clave: justicia; ética; crítica; actualidad; teoría de la justicia.

Arthur Cristóvão Prado: Universidad de São Paulo, São Paulo, Brasil. Abogado e investigador que realiza su maestría en el Departamento de Filosofía y Teoría General del Derecho en la Facultad de Derecho de la Universidad de São Paulo, de donde se graduó en Derecho (2015), con un semestre en la Freie Universität Berlin (2013/14). Trabaja como fiscal del estado federal desde enero de 2015, y actualmente ayuda al Fiscal General a representar a la Unión Federal ante el Tribunal Supremo de Brasil. Sus principales campos de interés son la filosofía política, la teoría de la justicia, la filosofía del derecho, la filosofía de la tributación, el derecho de sucesiones, los derechos humanos y los tribunales supremos. Ha publicado capítulos de libros, como (2017) “Sistema y Tópica en la Aplicação da Boa-Fé Objetiva”. En: A. A. Rodrigues, A. C. Prado, E. C. de Antonio Faria. (Org.). Lições de Direito Público. Pará de Minas: VirtualBooks Editora. E-mail: [email protected] A REPLY TO KELSEN’S CRITIQUE OF ARISTOTLE’S CONCEPT OF JUSTICE

Arthur Cristóvão Prado Universidad de São Paulo, São Paulo, Brasil

Introduction In his work Was ist Gerechtigkeit (1975), Hans Kelsen briefly presents an argument against Aristotle’s conception of justice. Kelsen argues that his definition is tautological and aims merely at justifying the social norms of his time. In this essay, I will attempt to show that Kelsen’s criticism reflects a flawed understanding of Aristotle’s philosophy. I will begin by briefly reconstructing Aristotle’s conception of justice as a virtue. Then I will describe Kelsen’s criticism to it. Having established the object of the controversy, I will offer one argument against Kelsen’s criticism. Then I will summarise the discussion and my conclusions.

Aristotle’s Theory of Justice Justice is a part of Aristotle’s ethical system, which is presented in his Nicomachean Ethics1. It is described as a moral virtue. In order, therefore, to reconstruct Aristotle’s concept of justice, I will outline his concept of moral virtue, and then proceed to his conception of justice and its most important characteristics.

1 Throughout this section and the remainder of this work, when quoting Aristotle’s Ethics, I will do so using Bekker numbering, since it is the standard notation for quoting Aristotle’s works. 56 Arthur Cristóvão Prado or without deliberation immediately virtuous, for virtuous acts can be accidentally (or by mistake, that, two conclusions can follow: (i) mere virtuous acts do not make a man itself. Courage would then, e.g., be developed through acts of bravery. From in man through the recurrent exercise of the action through which it manifests neither a nature-given attribute nor a mere result of education. It is developed is noted) otherwise essay,unless this of purposes the for “virtue”, merely 35-37 and1107a 1-3). relatively to the persons concerned, as determined mean by the reason” (NE II of 6 observance 1106bor moderation in lies which of characteristic the aspect of this moral system. Aristotle shows Aristotle system. moral this of aspect it isdeveloped. which through acts voluntary the without impossible voluntary,least at or What then precisely can this function be? The mere act of living appears to be shared even by being also has a certain function over and above all the functions of his particular members? human a so own, its of function certain a has manifestly body the of members various the any function? Must we not rather assume that, just as the eye, the hand, the foot and each of businesses belonging to them, man as such has none, and is not designed by nature to fulfil re we then to suppose that, while the carpenter and the shoemaker have definite functions or in BooksIII,IV and V. virtues specific to method this applying by induction, through then and 1004a, on strength possible through the exercise of reason of exercise the through possible characteristic in respect to other beings in nature, and his happiness is only to (ergonfunction the Aristotle, distinctive its as understood thus man, of ) Ethics demand that this mean be determined by reason. Reason is, according between twoviciousextremes:imprudenceandcowardice. the characteristic of a brave man. For that reason, bravery is the virtue lying is time right the at cowardly.challenges is right he the do, Facing to thing honourable the be would them facing when even them, refuses he If man. imprudent an fear,is without he faces he challenge any to rushes man a If given characteristic. The virtue of bravery provides a good example to that. therefore vicious. Virtue is then the point that lies between the extremes of a as adultery –, either to exceed or to fall short of a given measure are bad and characteristic that can possibly be good – some are bad in any amount, such 4 3 2 Through the analogy with the result of either too little or too much exercise on physical The paragraph in which this idea is formulated is a milestone of moral philosophy: “[a] Aristotle explicitlyacknowledgesthatthisappliestothecaseofjustice By “habit or trained faculty”, Aristotle means that moral virtue (or virtue moral that means Aristotle faculty”, trained or “habit By choice, of faculty trained or habit “a Aristotle, for is, virtue Moral The fact that virtue is a mean (mesotes ) is perhaps the most remarkable As a final characteristic, the premises laid down in the Book I of the of I Book the in down laid premises the characteristic, final a As 2 ) performed by vicious men; and (ii) moral virtue is 4 . He uses that idea to arrive at the at arrive to idea that uses He . 3 that, in any human moral human any in that, (1134a). “best State”dothe lawsreallyhavethosecharacteristics. to possible be would understand, and It indeed some authors behavior.have done so (Bien, virtuous 1995, p. 143), that prescribe only under the not do which laws i.e. laws, bad to perfect amongthem.”( most and best the with conformity in virtues, or excellences human several be there if or soul’shis the activeexerciseof is man of virtue, excellence or conformity with faculties in Good the that follows it premises these excellence—from proper own its with accordance these activities well and rightly, and if a function is well performed when it is performed in in association with rational principle, and say that the function of a good man is to perform form of life, and define that form of life as the exercise of the soul’s faculties and activities certain a is man of function the that declare we if and so, is this if well): harp the play to is harper good a of that harp, the play to is harper a of function the if that mean (I case his in function the to added being excellence in superiority latter’s the of qualification the same, instance, a harper and a good harper, and so generally with all classes) to be generically the (for class same the of individual good a of and individual an of function the acknowledge with rational principle, or at all events not in dissociation from rational principle, and if we the term. If then the function of man is the active exercise of the soul’s faculties in conformity with the active exercise of the rational faculty, since this seems to be the more proper sense of intelligence). Rational life again has two meanings; let us assume that we are here concerned divisions, one rational as obedient to principle, the others possessing principle and exercising therefore what may be called the practical life of the rational part of man. (This part has two life; but this too appears to be shared by horses, oxen, and animals generally. There remains the vital activity of nutrition and growth. Next in the scale will come some form of sentient plants, whereas we are looking for the function peculiar to man; we must therefore set aside be virtuous understands that the law prescribes the good of man and encourages him to Aristotle that noted be must It 11-13). 1129b 3 (NE V laws to obedience one ofthevirtues. is good,thenitmustbeinaccordancetoreason. which action, human of provides the base of his moral philosophy.end From that follows that, if virtue the is reason of use good the that concept hurt by him). But it nevertheless enfolds the whole of moral virtue. For that being is someone that implies hand, other the in unjust, in man a that fact incurs in vice, but doesn’t hurt anyone simply by being a coward; the mere more than his share, thereby affecting others (if a man fails to be brave, he takes doer the that imply ones unjust the only acts, bad are acts vicious all who wields them, justice is only relevant in respect to other people, for, while whereas the whole of the other virtues are defined with respect to the person virtues, it has the special quality of being manifested towards others. That is, habit or trained faculty of abiding to laws. Unlike the mere sum of the other 5 It is left unclear whether this definition still stands in a situation where men are subject The word “justice” has two meanings in Greek. Justice in general means is which justice, of characteristics the describe to proceed now can I 5 . Justice in general sense is a virtue because it corresponds to the NE I61097b28-34and1098a1-18)

A reply to kelsen’s critique of aristotle’s concept of justice 57 58 Arthur Cristóvão Prado especially p.159). 159-174, pp. (1979, “honest” being without fair be may man a but sense), this in just also in the special sense is one of the virtues, and a completely virtuous man must necessarily be word English “honesty”. the Ato closer honest man is is general a in man of justice complete of integrity,speak who to is Aristotle necessarily leads also that fair justice (as justice of fair. But a given amount of chairs can only be said to have the same worth be to transaction the for order in house the of worth the to equal be must chairs the of worth total the builder, a with house a for chairs of amount is equality the preserved by if the transaction, just that is, be A=B. will If a transaction carpenter exchanges the a certain persons, two by possessed good certain a of amounts the be B and AIf tort). of means by (for example involuntarily or example) for contract, a of means (by voluntarily either relate, individuals which in ways expresses “transactions” word the amounts, in which case it applies to transactions. In Aristotle’s terminology, and thesecond,amountD,suchthat A/C =B/DandC+D=H. C amount receives person first the if distributed justly be then will honour The second. the of that B and person first the of Let worth moral Athe be that a certain amount of honour (H) is being distributed between two persons. distribute honour in proportion to moral to worth. just Let is us it suppose, that for say example, could one instance, For demerit. or merit certain a to because it expresses the distribution of a certain good or burden in relation same proportion as C relates to D. That can be called justice in distributions, equality between fractions, such as A/C = B/D. That is, A relates to B in the involves atleasttwosubjectswhichareinsomesenseequal. can be expressed in the form of a mathematical equality, because it always relation This bad. is what of much too or good is what of little too taking other,the on bad; is what of little too or good is what of much too taking side, one on injustice: of extremes two between situated is It mean. a also in the doer having more or less than what is his due. This kind of fairness is with gain or loss. In this sense, a just act is fair, insofar as it does not result aspect that is coextensive with goodness, but to the one that is coextensive its to not belonging sense, general the in justice of part a is It fairness. as special the sense of is the This word others. justice, of which expense can be the called at special gain justice obtaining or justice with do to has it and with virtue,andthereforethejustmanisalsovirtuousorgood coextensive is it meaning, first this in aspect: twofold a has justice reason, 6 Bambrough, in a detailed examination of this distinction, suggests that the meaning the that suggests distinction, this of examination detailed a in Bambrough, Justice can also be expressed in the form of an equality between certain an of form the take can it firstly, forms, two take can equality This But there is also one meaning in which virtue is coextensive with gain, 6 . 7-8) that became bigger and giving the excess to the smaller one (NE V 7 1132a in such situations to make the amounts equal again, dividing the straight line different lines after the transaction (Figure 1. B.). It is the role of the judge between the blue and red line segments, which are unequal, resulting in two exchange an involved transaction the that assume can we example, our In unfair.is transaction the transaction, the after other the than longer is line one 1. If (Figure A.). equal initially are lines Both line. straight black a as amount of good possessed by each part in the transaction may be represented one. That differenceisrepresentedbythegreenlines. blue and red lines, take it from the bigger line and attribute it to the smaller and “justice”in Greek tothisfact. must givethecarpenter(100-80)/2=10coinsfortransactiontobefair builder the 100, worth was house the but coins 80 only worth were chairs of value equal to half the amount by which the transaction was unfair. If the transacting part who had the advantage must give the other part an amount true, for example because A>B, then, in order for justice to be restored, the the transaction is only fair if, in terms of worth, A=B. If that equality is not common measure. In our example, then, if A be 10 chairs and B be a house, in nature. Money has precisely that function, that is, to bring all things to a transactions, to come up with a way of measuring the worth of things different of different kinds. Therefore, it is necessary, in order to assess the fairness of as one house if they are measured in the same unity, because they are things 7 Aristotle attributes the similarity between the words “judge” and “to divide equally” divide “to and “judge” words the between similarity the attributes Aristotle 7 This can be expressed geometrically as well (Figure 1, below). The below). 1, (Figure well as geometrically expressed be can This . In our example, the judge must take half the difference between the between difference the half take must judge the example, our In . Figure 1.Justiceintransactions.Source:made bytheauthor. .

A reply to kelsen’s critique of aristotle’s concept of justice 59 60 Arthur Cristóvão Prado AεΓ issimilartoBυΔ,itfollowsthat A/B =ε/υ(Figure2). moral worth equals υ, the distribution will be fair, because, since the triangle whose individual other some to awarded good social of amount the is B If good awarded to a given individual, whereas ε represents his moral worth. below, one can assume, for example, that representation, AKeyser’s represents In the amount of social triangles. similar of means by is proportions representing of way simplest The complex. more much is representation define it are already known. That point corresponds to a given virtue, while that points the when determined be only can argues, he segment, line a of middle The above. explained means, are virtues that explain to Aristotle of thevirtuejustice. case specific the then and theory the of aspect general the attacking steps, it is tautological and presupposes its conclusions. He does that through two Kelsen then proceeds to show that the theory is of no practical use, because situations. concrete in “justice” finding for method operational an develop to managed it if goal its achieve only would work interpretation, Aristotle’s therefore, this to According 34). p. 1975, (Kelsen, are - justice as such - virtues the what determining of method” “mathematical-geometric Kelsen’s Critique Justice in distributions can also be represented graphically, but that but graphically, represented be also can distributions in Justice Kelsen begins by criticising the geometrical analogy employed by employed analogy geometrical the criticising by begins Kelsen Kelsen interprets Aristotle’s ethical theory as an attempt at a scientific, Figure 2.Justiceindistributions.(Keyser, 1992,p.141). for finding just solutions to moral problems; then, he shows that this goal this that shows he then, problems; moral to solutions just finding for wrongly interprets to be the development of a scientific-mathematical method he of Aristotle’stheory,which goals the misunderstands he that believe I fallacy, i.e., he misinterprets Aristotle’s work in order to attack it. Namely, reinforce histheoryoflaw. Kelsen help would wrong proving Aristotle that then, seems, It justice. as that exists in itself, without having to reach out to unfathomable ideas, such that justice is an empty concept, as it reinforces the need for a theory of law other fields of knowledge, including morals. It is therefore very convenient regarding separation and autonomy as understood purity, on rests which absolute concept(Kelsen,1975,p.43). justice must suffice: “his” concept of justice, instead of an all-encompassing, any of those authors. Therefore for him, as a scientist, can a neither but “relative” - is concept Justice of what answer cannot he that is Jesus, and Plato Kant, also but Aristotle regarding only not book, short his of conclusion is tautological and(ii)itcanonlyreinforceagivenmoralsystem. it (i) that show to attempting it), interpreted he (as work that in flaws the out point to proceeds he of Then, Aristotle’swork. interpretation own An Argument againstKelsen’s Criticism is just, but rather only justify and strengthen a given set of moral premises. so-called the that means That alone. it time (Kelsen, 1975, p. 36), since Aristotle’s method is unable to determine the of law” positive and morals “positive the by determined is Kelsen, to between an unfair advantage and an unfair disadvantage. But that, according which is bad or too much of that which is good, the just is the mean that lies unjust that is suffered. In other words, if the unjust is taking too little of that the and done is that unjust the extremes: two between point middle the is just the because unjust, is what granted for takes is, Aristotle justice what method. Ifthatistrue,thenthegeneralaspectof Aristotle’s theoryfails. scientific a not and Greece, ancient of law and morals the by determined of its time” (Kelsen, 1975, p. 35), which means that the virtues are actually Nichomachean Ethics, however, the vices are given by the the “traditional in morals described examples the In known. be already must vices the work, for order Aristotle’sto in method that, means This vices. are extremes the I believe that Kelsen’s argument is based on the straw man logical man straw the on based is argument Kelsen’s that believe I Law,of theory paradigmatic, rather his, with along go to seems This The due. is intentions probable Kelsen’s on commentary short A his Firstly,outlines parts. he two in divided be Kelsen’scan criticism determine to order in that, means this justice, of virtue the to Applied -formula cannot find what find cannot mesotes-formula

A reply to kelsen’s critique of aristotle’s concept of justice 61 62 Arthur Cristóvão Prado conception of justice is tautological. If that is so, that is, if his argument his if is, that so, is that If tautological. is justice of conception Aristotle’sthat convincing: particularly be to appears still argument matter.the examining Kelsen’sHowever,further of worth aspect is One it apart. falls thought of line his false, be to showed is premise his for,once only far-fetched, but outright incoherent with the rest of Aristotle’s Ethics. (such as justice) ( outline only, not scientifically exact”, especially in thestudy ofspecific cases “in be must practice of matter in inquiries all for impossible: to Aristotle, according also, but unintended, is only not Kelsen by described one the as a as formula tofindjustsolutionsactualproblems? used be can’t it if be it would good what theory, useful a elaborate to wants Aristotle all, after if, interpretation: Kelsen’s of lines the along go to seem would (1103b).That useless be otherwise would it otherwise, speculative or theoretical study; it should show man how to become good; of the work. It is specifically stated that the goal of the book is not a merely that a merely theoretical inquiry into the nature of justice would be point unfitting the to nature, in practical very is Ethics the of whole the that true is could ask if this intention can be derived from other aspects of the book. It individual virtues( the that show (ii) and character human the he briefly stops to write that the study could be useful to (i) better understand describing the individual virtues. When examining the virtue of truthfulness, virtue inconcretecaseswillbeattempted. of determination the for method operational an of development the that 1115a9 (NE III it” with deals conclusion the for allows that of None 4-6). it how and is, subject its what and is, it “what examine to intends he that extremes. Before starting the examination of (moral) virtues, he also states its are what and mean a be can it how finding before, outlined he system the into justice insert to try will he that states also He books. previous the in virtues other with did he way same the in injustice” and justice about Ethics, as Kelsen sustains. In Book V, Aristotle only stated he will “inquire Nicomachean the in so done have to claim not does He method. such one the criticismfailsbecauseitchooseswrongpremises. consistency,logical internal has it although Therefore, fails. that Aristotle concludes finally, logically attained; he not is intended) never was (which That alone should suffice to show that Kelsen’s criticism is unfounded, But the same passage quoted above shows that a scientific method such If, then, Aristotle makes no such claim as Kelsen attributes to him, one Book IV provides another clue as to Aristotle’s intentions when intentions Aristotle’s to as clue another provides IV Book develop to intended that ever presume Aristotle to reason no is There NE II NE IV131127a 13-18). 2 1104a 1-2). Kelsen’s interpretation is therefore not -formula applies to applies mesotes-formula remedy the situation, all of the society pays for the reparation, diminishing faultlessly,acting who, citizens, its harm. such deserve to Tonothing does (through one of its agents) would reduce the State total the amount of of action goods an of otherwise one because of justifiable is That individual. of an rights the preserve to citizens) taxpaying of group collective the into translates lastly (which State the to allocated is burden financial certain a by justice in transactions, and is better described by justice in distributions: the State itself, not only the agent. This kind of solution cannot be justified inflicts damage on a third person, the person is entitled to reparation against be treateddifferently incourt,isrevolutionaryforhistime(Aubenque,1995, pp.45-46). differentof individuals that denying transactions, in should parts ranking between equality formal of form some is there that justice, corrective in contained idea, mere the out, points tort caused by its employees has an application. It is the case, for example, of the liability of the State for evident in contract and tort law. But even in those fields, distributive justice in civil law work on the basis of justice in transactions. That becomes most Brazilian Constitution. relationship has important consequences legal relations. Identifying which about should be applied to what think kind of human can we which in ways distinct two identifies transactions in and knowingwhatvirtuesaretwoverydifferentthings. character.virtuous human being simply,To that it put us teaches Aristotle and theory virtue about conclusion relevant a is it concerned), mostly was Kelsen which (with law of philosophy the for importance great of be may not point the Although is. justice what of knowledge a merely not and justice, of virtue the requires justly,that act for to able be necessarily and immediately not will one kind), moral, not intellectual, the of virtues on depends (which just is what knows that one if even From that example, for follows, itself. in point important very a is which faculty, trained or transactions, brings new useful information to the field of moral philosophy. which can present itself in two forms, justice in distributions and justice in injustice, of extremes two between situated virtue moral a is justice that then, attempt to show that the definition is notwill, tautological.I justice. Thatof is,nature the affirming into insight any providing in fails still it then allows for no conclusions that cannot already be obtained from his premises, 9 8

See, for example, art. 34 of the German Fundamental Law or art. 37, § 6th of the of 6th § 37, art. or Law Fundamental German the of 34 art. example, for See, But even the definitions in themselves contain relevant information. As Aubenque As information. relevant contain themselves in definitions the even But Secondly, the distinction between justice in distributions and justice and distributions in justice between distinction the Secondly, habit a is it that follows it then virtue, moral a is justice if Firstly, 9 . In such situations, when an agent of the state 8 . For example, most legal relations

A reply to kelsen’s critique of aristotle’s concept of justice 63 64 Arthur Cristóvão Prado of westernmoralphilosophy: history the of in Aristotle’simpact distinction the of account an gives IX) between justice indistributions andjusticeintransactions.Izhak(2009,p. some way or another used his idea of justice, and especially the distinction Westthe in in have philosophy moral in authors important several Ethics, of empirical nature. In the millennia since the publishing of the Nicomachean his peers. to convincing been have hardly would it – compassion or mercy of values Christian the defend to them used say,to had – alien he Greeks if Ancient the same premises and then gone on and applied them to values which were describe what his contemporaries perceived as moral virtue. If he had used efficiently could it that show to had he works, theory his that demonstrate that task. Moreover, he could hardly have acted differently. If he wanted to man, moral virtue, the mean and the will, which provide excellent tools for with the robust support given by concepts such as happiness as the good of the modify or virtues, of interpretation of set specific virtuesdifferent described bya him. Allidentify of thatand could beII, done and I Books in philosopher might use the same framework laid down by him, particularly way.conservative rather moral a Another in it applies he that show might reader.However, theory, ethical his disqualifies means no by it it although contemporary the to outdated or naïve seem might examples absurd less his Even shovel. a unlike not tools, mere are slaves because slave his with friends be can’t master a today,that us such to abhorrent seem that things says even He gods. the for temples and tombs in riches his deploys who man wealthy the of magnificence the and war at dies who warrior the of what appears to be the traditional morals of his time. He exalts the bravery to thinklegalrelations the categories outlined by Aristotle in his description of justice can be used much how just illustrate help proportions. should individual example This the total amount of harm, which takes enlargingthe form (or of them taxes), but to preserving the distributed be would that good of amount total the the categoriesof justiceintransactionsand indistributions. 10 tion of justice as one of the cardinal virtues attracted the attention of the of attention the attracted virtues cardinal the of one as justice of tion no- the of analysis Aristotle’sthat wonder No [...]. world Christian Latin the in event major a constituted times medieval in revival their but mant, dor rather laid have ethics on works Aristotle’scenturies many for True, Another evidence of the usefulness and relevance of Aristotle’s theory is reinforce does virtues, Aristotle specific of description his Further,in Weinrib (1992, pp. 403-425) further explains the meaning of the distinction between distinction the of meaning the Weinribexplains further 403-425) pp. (1992, 10 . - the solutionofmoral(andjuridical)problems. influence greatly can which and fairness, and justice involving problems concrete think us help to distinctions important creates It tautological. in afairarrangementofsocialgoods: they give rise” are the stuff from which we derive each person’s entitlements suggesting that “social institutions and the legitimate expectations to which a solution to the problem of the “usefulness” of Aristotle’s justice theory, by presented in this essay is not the object of Rawls’ concerns, he does suggest appears most prominently (Rawls, 1999, pp. 9-10). Although the discussion that of John Rawls’ Theory of Justice, in which the idea of distributive justice paragraphs oftext,wouldappear tobedestituteofusefulness. several deserves which nopoints, empty,its or of tautological one means but by be would theory Aristotle’s agree): to seems Rawls which (with critique Kelsen’s to merit some restore might that true, If is argument them. this find us help to nothing says Aristotle and given, previously be must extremes its line, a of centre the find to judge the for that true indeed is It stand. to seems fair is what determine us help not does itself formula (Rawls, 1999,pp.9-10;italicsaddedbytheauthor) claims. these for account to justice social of conception and a has he this, certainly with disagree would Aristotle think to reason no is There rise. from socialinstitutionsandthelegitimate expectations to whichtheygive what isduetohim.Nowsuchentitlements are, Ibelieve, very oftenderived pposes, however, an account of what properly belongs to a personandof steady and effective desire to act justly. insofar as they have, as one of the permanent elements of their character, a just be to thought are persons and actions, to apply to framed is definition this that evident is It on. so and respect proper of showing the debt, a of person that which is due to him, the fulfillment of a promise, the repayment a denying by or like, the and office, his to reward, propriety,his his another, belongs what seizing by oneself for advantage some gaining from is, most familiar formulations derive, is that of refraining from the which from and justice, that to sense gives specific Aristotle more The literature wastheresult. controversies. Avast and discussions protracted provoked and scholastics But one criticism remains unanswered: the argument that the means no by is justice of definition Aristotle’s that shows That A very important case of applications to which Aristotle’s theory led is Aristotle’s definition clearly presu- pleonexia mesotes- , that

A reply to kelsen’s critique of aristotle’s concept of justice 65 66 Arthur Cristóvão Prado the reading that fact the in lies problem Aristotle’sthe perhaps But of account just. is what see to able be to prudent be to has one that say to than more no does it tautological: still is solution this that argue then might Kelsen case. a to solution just a find to prudence use to us allows that formula a as prudence, of virtue explained inBook VI. the general), in action (and justice of case the in is, which reason”, “right the through “mean” done the is That extremes. find the between to is one how about say to has Aristotle what omitted however, is that the that however,is theory.his against speak way any Kelsen’sin point strongest The thought, in would it that and that, “only” does he that reject must we time, his of morals the reinforces Aristotle states, Kelsen as that, acknowledge we if between receiving or not compensation for a tort caused by the State. Even between justice in transactions and in distributions can mean the difference more than a simple behaviour or social construction – and that the distinction therefore and – show,virtue I a is. is justice justice what that example, for which we think about moral problems, and that is gives us a clearer idea of in way the influence – does and – can justice of description his that show argument that the theory has no practical consequence. To powerful) do that, (rather we must his answer to needed is more but fallacious, is thought Aristotle’s moral philosophy. That alone is sufficient to show that Kelsen’s book the of with incoherent completely Kelsen’sis that reading evidence strong gives paragraph one least at contrary, the On work. his in stated never is intention that However, themselves. manifest justice, including virtues, how determining for method operational an creating of intention the Aristotle to attributes He Ethics. Nicomachean the misreads Kelsen Conclusion categories, namelythatofthemoralvirtue. important most its of one of out Ethics his of aspect important an leave to and mean, so, not were forced that be If would virtue. Aristotle moral of a as “behaves” form a indeed is Justice II. Book in presented hypothesis the confirm that cases many the among – one important exceptionally an thus virtue, strengthening moral a Aristotle’s is Ethics as it a that whole. It showing might for be one important more is – although mean a is justice Book in function its of opposite the V.that showing that rather be might It -formula as a way to improve his theory of justice is exactly is justice of theory his improve to way a as mesotes-formula But even that seems to give no definite solution. Aristotle never wrote has Kelsen place, first the In solved. be can problem this believe I In his attempt to disprove the applicability of Aristotle’s of justice, of Aristotle’s of applicability the disprove to attempt his In formula nevertheless says little about what a what about little says nevertheless mesotes-formula Kelsen, H.(1975).Was ist Gerechtigkeit Bien, G. (1995). Gerechtigkeit bei Aristoteles (V). In O. Höffe (Org.), Höffe O. In (V). Aristoteles bei Gerechtigkeit (1995). G. Bien, R. In Philosophy. of Paradigm A Justice: on Aristotle (1979). R. Bambrough, Aubenque, P. (1995). The twofold natural foundation of justice according to according justice of foundation natural twofold The (1995). P. Aubenque, (1906). [NE] Aristotle References reinforce Aristotle’s theory of moral virtue, rather to than meant his theory is of justice justice. of concept the and formula the between compatibility the that suggesting by problem, that solve to hypothesis one formulate I applied. be should justice how about anything say to meant not is it that fair solution in a given case is, which remains a problem even after we show Praxis Filosófica cuenta con una licencia Creative Commons Reconocimiento ˗no comercial˗ Compartir igual 4.0 Internacional Rawls, J. (1999). (2009). E. Izhak, for 1131a24-b20 3, V EN Aristotle in Diagram Proposed A (1992). P.Keyser, Weinrib, E.J.(1992).CorrectiveJustice Nikomachische Ethik England: Routledge&KeganPaul. (Ed.), Bambrough London, England:UCL Press. Aristotle. In R. Heinaman (Org.), Heinaman R. In Aristotle. England: Trench, Trübner &co. Distributive JusticeinProportion. times. New York, U.S.A:OxfordUniversityPress. A TheoryofJustice. Corrective and Distributive Justice New EssaysonPlatoand Aristotle The NicomacheanEthics (pp. 135-164).Berlin,Germany: Akademie Verlag. Cambridge, USA: Harvard University Press. Apeiron, 25(2),135-144. Aristotle and moral realism . IowaLawReview , 2 nd ed. Vienna, Austria: FranzDeuticke. (F. H. Peters, Trans.). London, Trans.). Peters, H. (F. : from Aristotle tomodern (pp. 159-174). London, 159-174). (pp. , 77(2),403-425. (pp.35 - 47). - (pp.35 Die

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