If the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice…. We must urge that the principles of equity are permanent and changeless, and that the universal law does not change either, for it is the law of nature, whereas written laws often do change.—Aristotle, Rhetoric
Aristotle actually argues both sides of the matter in his famous work on the art of persuasion, saying that there are times when we can take the strictly legalistic view. Nevertheless in this passage the Athenian thinker acknowledges one of the most important moral traditions in Western philosophy. This idea of universal or natural law was taken up and developed further by Cicero and the Stoics. It became a common theme in Greco-Roman culture and was eventually inherited by our own.
I’ve long been interested in the idea because it was an early formative influence that challenged the pervasive subjectivism of contemporary political thought. Manmade “positive” law is, of course, necessary to human justice and order. But even when intelligently framed, it is subject to human imperfections. Legal systems can decay or be corrupted. That is why we need an extra-legal point of reference. The authors of our constitution had this in mind when they first broke with British rule, justifying their stance according to the “Laws of Nature” and the belief that men “are endowed by their Creator with certain unalienable Rights.”
This leads us to another issue—the difference between a priori and a posteriori political theories. The first could be called intuitive or innate; the other experimental and empirical. Looking at the American experience it seems we must give each one their due. Our system succeeded because of its practical character. In terms of function, it makes sense to base the political order on empirical concepts. Organizing the state along purely idealistic (or “ideological”) lines is seldom helpful, whether one thinks that the “best” form of rule is monarchical, aristocratic or even democratic. The American system was, in fact, a blending of all three.
Nevertheless, pragmatism is not the starting point of human society, though it may admirably serve its overarching goals. Just as the Constitution sought to ensure equity and justice, the definition of those terms stemmed from a priori concepts. Statistical evidence may support basic morality. It can never “prove” it. Truth is something that is revealed to us; something we inherit, contemplate and pass on to others. In eighteenth century America, as in Aristotle’s day, there was no strong pragmatic argument against slavery. Most men took it for granted. But in the end, the idea of universal law won out. The lesson for us is that an intelligent political order does not seek a perfect system but it always strives for a better one.