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Home , Analytical jurisprudence, Jurisprudence, Philosophical theory

and The of : , Practice and GENTIUM COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE

VOLUME 23

Series Editors

Mortimer N.S. Sellers University of Baltimore

James Maxeiner University of Baltimore

Board of Editors

Myroslava Antonovych, Kyiv-Mohyla Academy Nadia de Araújo, Ponti fi cal Catholic University of Rio de Janeiro Jasna Bakšic-Muftic, University of Sarajevo David L. Carey Miller, University of Aberdeen Loussia P. Musse Félix, University of Brasilia Emanuel Gross, University of Haifa James E. Hickey, Jr., Hofstra University Jan Klabbers, University of Helsinki Cláudia Lima Marques, Federal University of Rio Grande do Sul Aniceto Masferrer, University of Valencia Eric Millard, West Paris University Gabriël Moens, Murdoch University Raul C. Pangalangan, University of the Philippines Ricardo Leite , Lusíada University of Lisbon Mizanur Rahman, University of Dhaka Keita Sato, Chuo University Poonam Saxena, University of Delhi Gerry Simpson, London School of Eduard Somers, University of Ghent Xinqiang Sun, Shandong University Tadeusz Tomaszewski, Warsaw University Jaap de Zwaan, University Rotterdam

For further volumes: http://www.springer.com/series/7888 Liesbeth Huppes-Cluysenaer Nuno M.M.S. Coelho Editors

Aristotle and The : Theory, Practice and Justice Editors Liesbeth Huppes-Cluysenaer Nuno M.M.S. Coelho Department of General Faculdade de Direito de Ribeirão Preto University of Amsterdam University of São Paulo Amsterdam , Netherlands Ribeirão Preto São Paulo, Brazil

ISBN 978-94-007-6030-1 ISBN 978-94-007-6031-8 (eBook) DOI 10.1007/978-94-007-6031-8 Springer Dordrecht New York London

Library of Congress Control Number: 2013932391

© Springer +Business Media Dordrecht 2013 Chapter 1 is published with kind permission of © Lawrence B. Solum 2013. All Reserved. This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfi lms or in any other physical way, and transmission or storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied speci fi cally for the purpose of entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher’s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a speci fi c , that such names are exempt from the relevant protective and and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein.

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Springer is part of Springer Science+Business Media (www.springer.com) Contents

1 Jurisprudence: Towards an Aretaic Theory of Law ...... 1 Lawrence B. Solum 2 Reasoning Against a Deterministic Conception of the World...... 33 Liesbeth Huppes-Cluysenaer 3 Law and the and Its Place Relative to Politeia in Aristotle’s Politics ...... 59 Clifford Angell Bates Jr. 4 The Best Form of and Civic Friendship in Aristotle’s Political Thought: A Discussion Note ...... 77 Ki-Won Hong 5 Controversy and Practical in Aristotle ...... 87 Nuno M. M. S. Coelho 6 Aristotelian and Aristotelian ...... 109 Marcel Becker 7 Is There Any Theory of in Aristotle’s Ethics? ...... 123 António de Castro Caeiro 8 Intellectual Excellences of the ...... 135 Tommi Ralli 9 Justice Kata Nomos and Justice as Epieikeia ( and ) ...... 149 Samuli Hurri 10 Legality and Equity in the Rhetoric : The Smooth Transition ...... 163 Miklós Könczöl

v vi Contents

11 Legal Rules and Epieikeia in Aristotle: Post- Rediscovered ...... 171 Jesús Vega 12 Legal and Civic Virtue: , and the Corruption of Lawfulness...... 203 Ekow N. Yankah 13 A Neo-Aristotelian Notion of Reciprocity: About Civic Friendship and (the Troublesome Character of) Right Judicial Decisions ...... 223 Iris van Domselaar 14 Synallagma as a of Exchange: Reciprocity of in Aristotle and Theory ...... 249 Mariusz Jerzy Golecki 15 The General of Proportionality and Aristotle...... 265 Eric Engle About the Authors

Clifford Angell Bates Jr. is a at the American Studies Center of Warsaw University in Poland since 2004. He specialises in . In 2003 he published at LSU Press his Aristotle Best Regime: Kingship, , and the Rule of Law. He has written several articles on Aristotle and is currently working on a second book on Aristotle dealing with the regime typology and its . Marcel Becker (1961) is assistant professor philosophical ethics at the Radboud University Nijmegen. He is specialized at and , particu- larly ethics of , business ethics and media ethics. He tries to make fruitful the Aristotelian heritage in each of these areas. Address: M.Becker@ ftr.ru.nl Nuno M.M.S. Coelho (Ph.D. in 2006, Habilitation in 2009) is Professor of Ethics and Philosophy of Law at USP (University of São Paulo) and Head of the Post Graduate Courses in Legal Philosophy in UNIPAC/Juiz de Fora. He published books and articles on Aristotle and of Law, and on and Legal Methodology. Antonio de Castro Caeiro teaches Ancient and , Ancient Greek and Latin at the Faculty of Social and of the New University of Lisbon. He translated into Portuguese the of Aristotle and the Pythical Odes of Pindar. He recently translated and commented the Fragmenta Aristotelis collected by Valentin Rose and has been working on a project with many scholars, especially David Sedley, on the stoics. Contacts: acaeiro@mac. com, http://www.antoniodecastrocaeiro.com/ . Eric Engle is a Lehrbeauftragter at the Humbolt Universitaet, Berlin, Juristische Fakultaet. JD St. Louis, DEA Université Paris II (Mention), LL.M., Dr. Jur. Universität Bremen Mariusz Jerzy Golecki : B.C.L. Warsaw (1998), LL.M. Cambridge (2002), Ph.D. Lodz (2004). Associate Professor- Department of Legal Theory and Philosophy of Law, Faculty of Law and Administration, University of Łódź. Visiting Scholar- the

vii viii About the Authors

Centre for European Legal Studies, the Faculty of Law, University of Cambridge (2008–2009). He specializes in , Jurisprudence and . The author of 2 monographs and about 40 articles. Ki-Won Hong took his doctor’s degree at the University of Aix-Marseille, France, with a dissertation on the political thought of Fr. Hotman, a sixteenth-century Aristotelian. His main interest consists in studying early modern political in relation to classical republicanism. After several years of teaching experiences as assistant professor in Seoul, he is now enlarging his research area as visiting profes- sor at the University of Panthéon-Assas (Paris). Liesbeth Huppes-Cluysenaer specialises in the and method of Law. On behalf of the Law faculty of the University of Amsterdam, she has developed a research website-blog dedicated to the English translation and comparative analysis of the main book by Paul Scholten, who defends an intuitive conception of the legal decision. ( paulscholten.eu ) Samuli Hurri LL.D. works at the Centre of Excellence in Foundations of European Law and Polity at the University of Helsinki, Finland. He is the founder and former editor-in-chief of No Foundations, an open access journal in legal theory and philosophy. Miklós Könczöl is an assistant lecturer at Pázmány Péter Catholic University, Budapest (Hungary) and currently Durham Doctoral Fellow at Durham University (UK). He holds degrees in Latin and Greek, Law, and Legal Theory. His research interests include Greek rhetoric, legal theory, the semiotics of law, and environmen- tal philosophy. His latest publication is an edited volume, Legal and Political Theory in the Post-National Age (Peter Lang, 2011, co-edited with Péter Cserne). Tommi Ralli obtained his Ph.D., on a thesis entitled ‘Justice through Legal Dispute,’ at the European University Institute, Florence. At Bremen University, he has been research assistant in the pan-European Reconstituting Democracy in Europe (RECON) project and lecturer at Hanse . His research focuses on legal theory, social justice, the ethics of legal , and comparative law. Lawrence B. Solum is John Carroll Research Professor at Georgetown University Law Center. He is author of many articles and books on a variety of topics in the philosophy of law, , and Internet governance; he edits Legal Theory Blog Iris van Domselaar : Iris van Domselaar (LL.M., M. Phil.) is Assistant Professor in Legal Ethics at the Amsterdam Law School, the University of Amsterdam. She has written several articles on justice, law, legal ethics and . She is fi nishing her doctorate thesis in which she develops a tragic approach to adjudication. Currently she teaches the course The Legal Professions. Jesús Vega is Professor of Philosophy of Law at the Universidad de Oviedo (Spain). Ph.D. in Law and B.A. in Philosophy. He has been visiting scholar in Germany and USA, as well as delivered lectures and doctorate courses in various Latin-American About the Authors ix universities. Author of several contributions in the fi elds of legal , his- tory of legal thought and legal methodology. Ekow N. Yankah is a Professor of Law at Cardozo School of Law. His scholarship centers on , criminal theory and political theory generally, particularly republican of political and their application in crimi- nal law. He holds degrees from the University of Michigan, Columbia Law School and Oxford University and his prior appointment was at University of Illinois School of Law.

Introduction

Aristotle is a key fi gure of legal and . The Western academic is founded on his open dialogue to , and . His con- cept of prudence (phronêsis ) had quintessential meaning for Roman legal , and Aristotle has been present in legal theory ever since. For Aquinas he was the paradigm of the , currently he is seen as the thinker who was the main opponent to the Enlightenment, and his writings are used consequently to challenge Modern ways of thinking. Most philosophical perspectives still assume Aristotle as their interlocutor. The new epistemological perspectives in legal theory, which arose during the twentieth century in connection to phenomenology and – for example - sophical hermeneutics, rhetoric, topics , theory of argumentation etc. – cannot be conceived without their reference to Aristotle. The same is true for jurisprudence, , contemporary theories, legal and virtue ethics. One way or another, most of us deal with the same problems as Aristotle faced and employ some of his theoretical tools to think these over. In the fi eld of and law, Aristotle’s presence is even more signifi cant. There are examples of practical legal problems in the texts of Aristotle, which are still used in exactly the same way in the major textbooks for students. It is a moving experience to read in texts of more than 2000 years ago such phrases on legal matters. In legal theory, Aristotle is mostly discussed in the context of versus Natural Law. In these debates the ‘positivists’ parade as the slightly cynical realists, who do not take refuge in vague and idealistic , while the ‘natural law’ followers accuse the positivists of being formalists. One could easily assume that that could be said in this debate has been said already a hundred . However, the debate is so fundamental to legal thought that every relevant change in is re fl ected in a re-arrangement of the of this debate. At this moment in , globalisation is clearly causing such a change in soci- ety. Ripple effects of actions spread nowadays extremely fast all over the world; sometimes it is merely the fear for effects which creates a worldwide chain of reactions. Is it possible to control these processes? It becomes clear how integrally

xi xii Introduction is tied to the nation state and how this holds an inherent weakness. Positivists have to face the question whether it is possible to prevent the nation state from fading away and whether the in a ‘World Government’ is not extremely unrealistic and dangerously idealistic. The rapid spread of ripple effects of human interventions leads also to a re-evaluation of the technical predictive which until today has been pic- tured as the highest achievement of Western thinking. This type of knowledge is not helpful to cope with the occurrence of ripple effects on a world wide scale. A com- pletely different type of rationality seems to be needed to keep people organised in a world full of uncertainty and ignorance. This means that the of , which was deeply transformed at the start of the Enlightenment, is being reconsid- ered today. And this in turn will affect the ideas of natural order and natural law. How is it possible that Aristotle’s views have been present in so many different conceptions of law and philosophy over more than 20 centuries? One of his discov- eries gives us the clue to understanding this: his polyphonic conception of reason, which leads to a non-monolithic and pluralistic conception of rationality. For Aristotle there are different structures of reasoning existent, which accommodate the different ways is incited when experiencing the world – practical, technical, scienti fi c or philosophical. Within the Enlightenment concept of a rationality that strives for a unifi ed sci- ence and a unifi ed conception of the world, this discovery of Aristotle’s was not appreciated. Aristotle’s view was rejected by some as being inconsistent and mak- ing it possible to take from it whatever one liked, while others spent much effort in explaining the disorder away. As globalisation unfolds, it becomes clear that it holds the germ for a turn in thinking that will lead to a new appreciation of Aristotle’s polyphonic conception of reason. On a worldwide scale it will be unavoidable to fi nd ways to accommodate pluralism, not as a kind of idealistic for the exotic, but as a realistic condition for survival. This book invites such a new reading of Aristotle. The book presents a new focus on the legal philosophical texts of Aristotle, which offers a much richer frame for the understanding of practical thought, legal reasoning and political experience. It allows understanding how human interact in a complex world, and how extensive the complexity is which results from humans’ own power of self-construction and . Unlike some Enlightenment perspectives and positivist theories of law, the Aristotelian approach makes it pos- sible to think the task of justice from a non-linear and non-monological rationality. It recognizes the limits of rationality and the inevitable and constitutive contingency in Law. All this offers a helpful instrument to understand the changes globalisation imposes on legal experience today. The contributions in this collection do not merely pay attention to private , but focus primarily on public virtues. They deal with the that law is dependent on political power and that a person can never be sure about the of a case or about the right way to act. They explore the assumption that a detailed knowledge of Aristotle’s epistemology is necessary, because of the direct connection between Introduction xiii

Enlightened reasoning and legal positivism. They pay attention to the concept of proportionality, which can be seen as a precondition to discuss . Most chapters of this book were presented in substance as papers at the IVR- conference 2011 in Frankfurt am Main, in the special workshop Aristotle and the Philosophy of Law. This workshop – which had its fi rst meeting at the IVR- conference of 2007 in Krakow – aims at cooperation between specialists in the philosophy of Aristotle and legal theorists who use elements of Aristotle’s philoso- phy in their theorizing. This leads to a very broad and general discussion in which nearly all aspects of legal theory are treated, sometimes deeply entrenched in specifi c interpretations of Aristotle’s texts, sometimes focused on the practical use of Aristotle’s ideas in current times. Some of the chapters are written by authors who could not attend the IVR- conference and were invited to submit a contribution. Two chapters are discussion notes by authors who made interesting interventions about one of the papers during the workshop and were invited to develop these discussions into a chapter. The fi rst chapter of the book was presented in Krakow and published together with all the other papers of that conference. We asked permission from Lawrence Solum to include his paper in this volume, because we think that it presents the state of the art of the debate in 2007 very well. It is in reference to this debate that we try to take a step further in this workshop. The Editors would like to thank António Caeiro for his correction and unifi cation of the transcription of Greek terminology and the International Association for Philosophy of Law and (IVR) for offering the opportunity to organise Special Workshops on Aristotle in Krakow, Beijing and Frankfurt. They thank Springer, for taking up the challenge to publish this book and also all who participated in the project, especially the scholars who worked as reviewers of the submitted texts: Bruno Amaro Lacerda, Marcel Beckers, Annemarie Bos, Edith Brugmans, Marcelo Andrade Cattoni de Oliveira, Frans de Haas, Oliver Lembcke, Carlo Natali, Diego Poole, Jonathan Soeharno Lawrence Solum, Sebastião Trogo and Marco Zingano. The book would not have been possible however without the help of Carlo Natali and Marco Zingano, who as specialists in Ancient Philosophy showed the openness of mind to support and stimulate the making of a bridge to the Philosophy of Law.