Aristotle’s Concept of Law: Beyond Positivism and Natural Law

Abstract

This paper presents an interpretation on Aristotle’s distinction between natural law and positive law. According to this interpretation, the traditionally assumed thesis on Aristotle’s “iusnaturalism” should be severely rectified otherwise dismissed. It is not either to be found in Aristotle’s legal reflections any variety of “legal positivism”. Departing from a natural law reading of the famous passage of Nichomachean Ethics where Aristotle draws the distinction between the two forms of political justice, natural justice (physikon dikaion) and legal justice (nomikon dikaion), we cannot find conclusive reasons to see therein a conceptual dualism between natural law and positive law as it has been traditionally understood. Rather it must be concluded that the true conceptual line is not that relating natural and legal justice but the one relating political (politikon dikaion) and legal justice. Under this reading, not only legal justice but also the so-called natural justice should be included within the Aristotelian concept of positive law in terms of a philosophically grounded universalism in the realm of practical reason as opposed to a metaphysical, natural-law view (that is, ultimately a theological one). This is indeed corroborated by an analysis of the central role played by the notion of praxis, with its epistemological background, in Aristotle's works on ethics and politics, and in particular by an analysis of his theory of law.