Activists: Questions for Liberals and Conservatives

A few months ago, I took offense at the implication in Aristotle’s Nicomachean Ethics that the words Law and Justice are essentially coterminous. I’m halfway through the Politics now, and he’s addressed this issue, clarifying it to some extent, but it’s left me with a whole new set of questions. Here’s what he says:

Suppose we say the people is the supreme authority, then if they use their numerical superiority to make a distribution of the property of the rich, is not that unjust? It has been done by a valid decision of the sovereign power, yet what can we call it save the very height of injustice?
(III.10)

So the laws of the State must be subject to some higher authority, although Aristotle is a little fuzzy on what that authority is and how we should access it. But the important thing is that he makes it clear that the law is not always just, and III.10 ends with an outright declaration of the distinction:

It might be objected too that it is a bad thing for any human being, subject to all possible disorders and affections of the human mind, to be the sovereign authority, which ought to be reserved for the law itself. But that will not make any difference to the cases we have been discussing; the law itself may have a bias towards oligarchy or democracy, so that exactly the same results will ensue.

He doesn’t say it in these exact words, but obviously his point is that the law is a man-made institution rather than something handed down verbatim from an outside authority, and therefore any objections one makes about human rule must also be made about the law itself.

So who has sway? The rulers or the law? Predictably, Aristotle suggests a balance. On the one hand, “the laws enunciate only general principles and cannot therefore give day-to-day instructions on matters as they arise” (III.15); however, “On the other hand, rulers cannot do without a general principle to guide them; it provides something which, being without personal feelings, is better than that which by its nature does feel” (III.15). Aristotle privileges the law slightly, as he recommends that rulers “only depart from the provisions of the law in cases which the law itself cannot be made to cover” (III.15).

But then he throws a wrench into the gears. As I discussed in an earlier post, for Aristotle, the human soul is divided into two sections: the intellect (strong) and the will/passions (weak). So when he equates the Law with the intellect and human rulers with the passions, we’re back to the drawing board:

he who asks Law to rule is asking God and Intelligence and no others to rule; while he who asks for the rule of a human being is bringing in a wild beast; for human passions are like a wild beast and strong feelings lead astray rulers and the very best of men. In law you have the intellect without the passions.
(III.16)

So we’re back to Law and Justice being coterminous, and the question still stands: Who makes the Law, if it’s not handed down to Aristotle from Mount Sinai?

My question for my readers: How does this schema relate to so-called “activist judges” on the Supreme Court? Should the law—the general principle, in other words—be changed based on changing times, or when the specific situation would require a complete overhaul? The political right seems to see the law as sacrosanct, the left as a general principle. I think Aristotle falls into the former camp, but thankfully we don’t have to accept his word as—no pun intended—law.

So if you’re a conservative, I want to know why the Constitution is a sort of quasi-divine document that Supreme Court Justices can’t change without suffering the slings and arrows of “activism” (and more recently, “empathy”). If the people who wrote it were human beings, why can’t the Constitution be wrong?

And you’re a liberal, I want to know how much we can change the Constitution before we stop having a guiding principle for our government? If the Law is supposed to hold true in general cases, how much can we change that Law without having nothing on which to rest our society?

I have no answers, myself.