"Rights" in Aristotle's Politics and Nicomachean Ethics?

Article excerpt

I

RECENT DEBATES HAVE EXAMINED AGAIN whether the concept of individual natural "fights" is significant for Aristotle's political philosophy and ethics. Fred D. Miller's Nature, Justice, and Rights in Aristotle's Politics is the most sustained recent attempt to argue that Aristotle's Politics is centrally concerned with the issue of individual fights based on nature and that no anachronism is involved in arguing this. (1) Aristotle's Politics, it is argued, should thus be seen as the precursor of later theories of individual rights, although it would be a mistake to infer from this that Aristotle employed a specifically liberal understanding of fights even though his work is foundational for those later theories. In a symposium in this Review devoted to discussing Miller's arguments, a number of both supporting and critical responses were published. (2) One result to emerge from this symposium was the fundamental lack of agreement on how to translate key Greek terms such as to dikaion/ta dikaia (literally "the just thing" or "the just things") which Miller argues should sometimes be translated as "just-claim right." (3) This lack of agreement among the most authoritative classical scholars raises important methodological issues concerning the kind of criteria that may be appropriate in such a dispute.

The evidence of the symposium suggests that linguistic arguments are by themselves insufficient in addressing a conceptual dispute of this kind since both the issues at stake and the principles of translation are of a philosophical nature. Indeed, in the course of this symposium, skeptics of Miller's thesis raised a number of methodological queries. Richard Kraut wonders what it means to say that Aristotle employs the concept of "natural rights": even granting the similarity between some of Aristotle's ideas and those of later rights theorists, "the problem, however, is that Aristotle makes so little use of them in his political and moral thinking that it is uncertain what attributing the concept [of natural rights] to him amounts to." (4) Malcolm Schofield offers a related skeptical thought when he argues that, even if a case could be made for sometimes translating to dikaion and its cognates in terms of "(a) right," and he remains unconvinced by most such translations, this would add nothing of explanatory or analytical substance to Aristotle's account which is based on the notion of desert (axia). (5) In addition to these philosophical questions, issues of historicity and anachronism also surfaced in the debate: Schofield raises some historiographic issues concerning interpretation, with Miller defending himself against the charge of anachronism by arguing that "it is reasonable to look for continuity as well as change in the history of political philosophy." (6) Issues of historicity, however, also raise theoretical questions of interpretative principles that cannot be addressed simply by linguistic means.

This paper aims to contribute to this philosophical and methodological debate by pursuing some theoretical issues concerning the conceptions of political rights that are being used. This will involve taking seriously Miller's argument that the Politics includes a developed account of natural rights in a Hohfeldian sense. (7) The paper will also be responding both to Kraut's questions about the nature of the concept of a "right" and his suspicions concerning essentialist approaches to construing the meaning of such a concept, (8) and to Schofield's arguments that translating the Politics in terms of "rights" would add nothing to the fundamentals of Aristotle's analysis and that interpretations of his work should take account of broader historiographic issues. The paper will argue that some definite philosophical implications would follow from the inclusion of such rights in the Politics and Nicomachean Ethics, but that these implications are absent from these texts and, indeed, are inconsistent with key elements of Aristotle's analysis. The paper therefore concludes on the skeptical note that a convincing case has yet to be made that political rights of a Hohfeldian kind are employed in Aristotle's Politics and Nicomachean Ethics. (9)

II

One of the difficulties in disputes over the presence or otherwise of rights concepts in Aristotle's (and other) texts is that it is not always clear what is meant by "rights." NJR tries to make this more specific by using the notion of rights as defined in the work of Wesley Newcomb Hohfeld which was itself a response to the perceived ambiguity and looseness of legal terminology even in the writings of the most eminent legal analysts and judges. (10) Hohfeld's argument was that many legal notions are largely figurative or metaphorical importations from other fields, and so these "chameleon-hued words" are often used with an imprecise blend of literal and figurative meanings with the result that different kinds of legal rights are frequently confused; for example, even in legal contexts, the term "right" is often used loosely to refer to whatever may be lawfully claimed. (11) Arguing against this loose terminology, Hohfeld differentiated between four different kinds of rights terms by placing them in the context of the different jural or legal relations which constitute them, and to this end the different kinds of rights (claim-fight, privilege/liberty, power, immunity) are displayed in a defining scheme of jural opposites and correlatives. This scheme is shown in Figure 1.

Figure 1: Hohfeld's scheme of jural relations

Jural         claim-right  privilege/  power       immunity
opposites     no-right     liberty     disability  liability
                           duty

Jural         claim-right  privilege/  power       immunity
correlatives  duty         liberty     liability   disability
                           no-right

According to Hohfeld's approach the meanings of the different kinds of rights are given in terms of the scheme of jural relations. For example, if "X has a claim-right against Y that Y [empty set]s," the jural correlative is that "Y has a duty toward X to [empty set]" and the jural opposite is that "X has a no-right against Y." (12) Central to the construction of the Hohfeldian scheme of rights is the notion of correlativity: the relationship between two jural agents, X and Y, comprises two symmetrical relations--X's relation with Y, and Y's relation with X--where each one is, as a matter of logic, the correlative of the other. Thus, talking of "X's claim-right that Y [empty set]s" is logically equivalent to talking of "Y's duty to X to [empty set]." The action denoted by X's claim-right against Y is thus not X's action but Y's action; for this reason, a claim-right is sometimes referred to as a "passive" right rather than an "active" right since the action referred to is the action of the duty-holder not the right-holder. For example, to say that X, who is Y's creditor, has a claim-right that Y repays the loan, is equivalent to saying that Y, who is X's debtor, has a duty to X to repay the loan; according to either expression, the action being denoted is the action of the duty-holder not the action of the holder of the claim-right. A rigorously Hohfeldian approach to Aristotle's texts would therefore need to establish how these jural relations are central to or constitutive of political relations in the Politics.

NJR argues that the evidence of rights locutions in Aristotle shows that all four of Hohfeld's tights concepts are present--to dikaion (claim-right), exousia (liberty/privilege), kurios (authority/ power) and akuros/adeia (immunity)--even though there is no single Greek term that denotes the generic notion of a "right." (13) Indeed, the absence of a genetic Greek term for a tight is even taken to provide a parallel with Hohfeld's analysis which also does not have a genetic term for "rights" and identifies what is commonly thought of as a tight by the term "claim-right." (14) Although ostensibly adopting Hohfeld's scheme, however, NJR departs from it in significant ways. This raises some fundamental questions as to the kind of tights analysis that NJR claims to find in Aristotle's texts and the implications of these tights for the political analysis that is then attributed to Aristotle.

Crucially important for Miller's argument are the claims to citizenship and political office, and these are held to be Hohfeldian claim-rights. (15) NJR, however, construes correlativity to mean that "X has a claim right to Y's Aing if, and only if, Y has a duty to X to do A," thus reinterpreting Hohfeld's notion of correlativity in terms of necessary and sufficient conditions. (16) Having made this move, NJR then weakens this condition to that of a necessary condition only, on the grounds that not all duties are correlative to a claim-right. Although a claim-right entails a correlative duty, some duties, such as those in the Mosaic code (for example, the duty not to covet a neighbor's ox) and the duty of charity, are held not to imply correlative claim-rights; and in some cases, NJR argues, the claim-right is "in some sense more basic than, and helps to ground, the correlative duty." (17) Miller therefore rewrites Hohfeld's notion of a claim-right: by weakening the "if, and only if" relation to "only if," Miller writes that "X has a claim right to Y's Aing only if Y has a duty to X to do A." (18)

This departure from Hohfeld's strict correlativity of claim-rights and duties is accompanied by transposing the action denoted by the claim-right from the duty-holder to the holder of the claim-right, so that X's claim-right is not that Y [empty set]s but that X can [empty set]. NJR thus slips into a way of talking about claim-rights in which the right-holder has a claim to have or to do something--to disputed goods, to citizenship, to act as a defendant or prosecutor in a court of law, to political office--which is an active rather than a passive right. (19) NJR's notion of a just claim or right to have or to do something is therefore not the same as a Hohfeldian claim-right that another do something. Furthermore, construing claim-rights as active rights implies that Y's duty is only to let X do the action denoted by the right. The duty-holder's action is thus sidelined to merely accepting or not preventing the right-holder's action.

These changes raise a question as to how a claim can be identified as a claim-right. A duty that is correlative to a claim-right functions as a "moral sanction" or "side constraint'" on the actions of others. (20) A duty is only a necessary and not a sufficient condition for the existence of the claim-right, however, and so the mere presence of a duty on another agent does not provide evidence that X's claim is a claim-right because it could always be the case that the duty is not the sort that is correlative to a claim-right; for example, it does not follow from the fact that a person has a duty to give alms to the poor that any particular indigent has a claim-right to such assistance. (21) To overcome this difficulty there would need to be either an alternative sufficient condition for a claim-right or a theoretical account of the two different kinds of duties so that those that are correlative to a claim-right can be differentiated from those that are not. It might be thought that the difference between claims and claim-rights lies in the legal enforceability of the claim-rights and the duties, but if legal relations are to be justified in terms of natural claim-rights such an argument would appear to be circular; or, similarly, if a natural claim-right is held to justify the right-holder in making a claim against the duty-holder, there again needs to be some independent argument as to why any particular claim does indeed carry this justification; otherwise the argument would again appear to be circular. (22) Without a theoretical means of identifying which claims are claim-rights or which duties are of the correlative sort, it is not clear how it can be decided whether any particular claim is a claim-right or not since showing that there are duties present as well as claims is not by itself sufficient to establish that the claims are claim-rights held correlatively against those other agents. This theoretical difficulty is linked to the diminution of the duty simply to allowing the claimant to do what is claimed, rather than providing the action denoted by the claim-right since the action denoted by the claim-right is now separate from the action denoted by the duty.

By altering Hohfeld's notion of the correlativity of claim-rights and duties, NJR thus replaces Hohfeld's strict notion of X's claim-right that Y [empty set]s with a loose notion of X's claim to [empty set]. This non-Hohfeldian usage of rights terminology is also illustrated by the support that NJR claims from earlier translations that Aristotle's to dikaion/ta dikaia can be translated as "rights" or "claims," as those earlier translations too are not using these terms in their strict Hohfeldian sense but are examples of the loose or metaphorical renderings of these terms against which Hohfeld's work was directed. The works of A. C. Bradley, and of Franz Susemihl and R. D. Hicks, were published prior to Hohfeld's and so it would be unlikely for them to show an awareness of the distinctions pioneered by Hohfeld, and indeed their notion of a right has more in common with those loose notions of a claim against which Hohfeld was arguing than with Hohfeld's notion of a claim-right. (23) Bradley, referred to by Susemihl and Hicks, discusses "political rights" as "the right to the franchise," but this is a claim to something and not a claim-right that another do something. There is no suggestion of any correlative duties to these rights, and the only duties mentioned are those that men owe to the state and which provide a reason why all men may rightly claim the suffrage. (24) Furthermore, if there were to be any correlative duties in Bradley's account they would surely have to be owed by the state against whom the men were claiming the suffrage, not by other men, but this would be an inapposite illustration for NJR's interpretation of the Politics since all Aristotle's rights and duties are held to be individual rights. (25) Thus, citing translations which simply use the words "right" or "claim" is not sufficient to establish that such translations are using rights concepts in a Hohfeldian sense.

These alterations to the notion of a claim-right also have implications for the kind of relationship that obtains between the agents X and Y. In arguing that rights and duties are held only by individuals and not by collective agencies or the polis, NJR contrasts Aristotle's analysis with a liberal argument such as John Locke's where individuals may retain rights against the government. (26) In distancing Aristotle's political theory from liberal theories such as Locke's, however, N JR moves further away from Hohfeld's analysis by setting up a system of rights-holdings that are claimed competitively against other individuals, and this leads to a particular kind of political analysis. Miller's political analysis centers on the argument that "individuals are disputing (amphisbetousi) over political offices" such that each disputant "is claiming that he should occupy the offices on the grounds of alleged superiority." (27) Once the dispute has been resolved, the successful candidates have a "just-claim right" to office and the unsuccessful claimants have a duty to yield. This right to office is an active right, not a passive Hohfeldian right, and the duty is on the unsuccessful claimants to yield in ceding their unsuccessful claims. The fact that successful claims to office are accompanied by a duty on the unsuccessful claimants to yield does not by itself demonstrate that the claims of the successful are claim-rights, however, since the duty on others to yield might be a noncorrelative sort of duty (perhaps owed to the polis or to the gods, for example) to abide by the distribution. Furthermore NJR's disputatious citizens are unlike Hohfeldian jural agents in that, prior to the distribution of offices, these individuals are rival claimants to the same offices, whereas in Hohfeld's system a debtor and a creditor, for example, are not contending for the same right but represent the two sides of the same financial relationship. NJR's citizens are thus rivals, and the political significance of the judgment of the distribution is that it determines which of the rival citizens are to be successful. Throwing the duty entirely on the unsuccessful rival claimants thus emphasises the adversarial individualism of NJR's interpretation of Aristotle's political analysis at the expense of a broader political recognition of the results of the distribution. An alternative way of theorizing Hohfeldian claim-rights for Aristotle's Politics would be to say, for example, that worthy individuals have claim-rights against the rulers (or the polis or some function within it) that their worth should be publicly acknowledged, so that the correlative duty on those rulers (or some function within the polis) is to recognize individual worth in distributing the offices. (28) Whether such an ascription of claim-rights and duties to Aristotle's texts or to the actual constitution of Athens could be justified is another question entirely; the point is simply that such an application of Hohfeldian notions would provide a very different conceptualization of political relations from the individualistically adversarial one offered in NJR.

The textual evidence adduced to support NJR's argument concerning rights to political office is examined in the following section, but for now the question at issue is what NJR's interpretation implies about the nature of the alleged claim-rights and duties and, hence, about the nature of relations within the polis. It implies that ethical and political relations are conceived in terms of individual relations that are fundamentally agonistic or adversarial in that citizens are contending against each other as if they were rivals in a lawsuit. NJR thus models Aristotle's political analysis in terms of an agonistic juridical metaphor--an agonistic juridicalization of political relations--in which citizens are theorized as rival claimants in a lawsuit contesting against each other for offices, and in which the functions of the polis are theorized as the judgments handed out in a contested lawsuit in settling disputes between rival litigants. (29) NJR defends this juridical metaphor by applying an interpretation of the disputing parties at a law-court at Nichomachean Ethics 5.4 to the dispute over the constitution at Politics 3, but in doing this N JR also inserts the language of rights so that, just as disputing parties at law are held to be contesting rival claim-rights, so too are the disputants over the constitution. The detailed textual exegesis offered in NJR is discussed later in this essay; the point being registered here is that Hohfeld's analysis of correlative jural relations is transformed into an adversarial model of individual rival litigants and that it is this agonistic model that is applied to Aristotle's political analysis.

Finally, there is an issue as to how these claim-rights are natural claim-rights, an issue that goes beyond Hohfeld's analysis which was concerned with positive law. According to NJR just-claim rights to office are decided upon by the just distribution. Prior to the distribution, all the claimants are contending against each other for these claim-rights, and it is only with the announcement of the just distribution that the holders of just-claim rights are identified, thus establishing which of the rival claimants are to be right-holders and which are to be duty-holders. (30) It is not clear, however, in what sense these purported claim-rights can be natural claim-rights if they are decided upon by that distribution rather than determining it. NJR cites Bradley's distinction between a natural right to the suffrage, based on "real justice," and a positive right to the suffrage, where the absence of the latter could be challenged on the basis of the former. Yet in N JR the natural or just-claim rights are decided upon by the just distribution as the outcome of a contested lawsuit; the allocation of natural rights thus emerges as the outcome of the lawsuit, and so natural rights do not determine that outcome. Here the implications of the overarching juridical metaphor seem to be at odds with the arguments concerning natural justice; the juridical metaphor provides a model of political relations in which the allocation of political rights and duties is determined as the outcome of a juridical process, but the significance of natural rights and duties would seem to suggest that these rights and duties should have some role in determining the outcome of that juridical process.

This section has posed some questions about the jurisprudential analysis being employed in NJR, and it has argued that the particular adaptation of Hohfeld's scheme put forward in NJR results in a particular kind of political analysis that leaves unanswered some crucial questions concerning the theoretical formulation and normative justification of these purported natural claim-rights and duties. Section 3 examines in detail the textual arguments put forward in NJR to justify such claim-rights to office; and section 4 offers an alternative interpretation of Aristotle's texts and a critical assessment of NJR's application of Hohfeld's scheme of jural relations in interpreting Aristotle's political philosophy.

III

In NJR the account of rights is split between two separate chapters: chapter 3 on justice provides an account of the relationship between justice and rights, but it is not until the following chapter 4 on rights that an account of Hohfeldian claim-rights is provided. One consequence of this ordering of the argument is that the vitally important analysis of the relationship between distributive justice and rights in chapter 3 is conducted prior to the elaboration of Hohfeldian claim-rights, and has only a footnote referenced forward to the following chapter for a defense of "the ascription of rights claims to Aristotle." (31) A weakness of this approach is that the issues concerning the meaning of "just claims or rights"--issues concerning the formal characterization and normative standing of such rights as claim-rights--are not addressed in the chapter ostensibly devoted to analyzing the relationship between justice and rights and are taken for granted thereafter in discussing the various rights locutions in Aristotle's texts.

According to NE 5.3, distributive justice concerning the allocation of common goods such as offices and honors requires a geometric proportionality, or an equality of ratios, between people's axia (worth, merit, or desert) and the value of the common goods or shares distributed to those people. The principle of geometric proportionality is thus the principle of distributive justice, and it determines a person's just share of common goods. NJR argues further, however, that there are rights to these shares. What are the precise arguments used to establish this?

The argument in chapter 3 starts with the account of geometric proportionality at NE 5.3 and Aristotle's principle of distributive justice as an equality of the ratios of axia and shares for the two-person case. The "governing principle" or "geometrical proportion" is given as follows:

(P1) Merit of X / Merit of Y = The value of X's share / The value of Y's share

The argument of this paper is independent of the question whether axia might be translated as "desert" or "worth" rather than "merit," and so the word axia will be retained throughout. What is crucial, however, is the next stage of Miller's account as it is here that the right-hand side of the equation given as P1 above is rewritten in terms of the "rights" of X and Y instead of the "value of shares" of X and Y. (32) This crucial move is made without citational support from Aristotle's texts and is given as follows:

   Distributive justice presupposes a partitioning of a common asset into
   portions (e.g. parcels of property or political offices). A distribution
   (dianome) is a function which assigns to each person in a given domain one
   of these portions. The result is that each person has a just claim or right
   (33) to a portion of the whole. Justice requires that rights be
   proportional to the merit of the right-holders:

[(P2)] Merit of X / Merit of Y = The right of X / The right of Y (34)

This is the first time that the relation between distributive justice and rights is explained and defended in NJR. The third sentence introduces the term "right" as equivalent to "just claim," but these terms are not explained; instead, the sentence carries a footnote referring to the following chapter for a defense of "the ascription of rights claims to Aristotle." There is no mention of correlative duties. At this crucial stage in the argument, therefore, it cannot be known what kind of claim or right is here being imputed to Aristotle.

Further, it is said that "the result is that each person has a just claim or right to a portion of the whole," but it is not clear what the just claim or right is the result of. The passage seems to suggest that a person has a just claim or right to a share as a result of a distribution (dianome). Just claims or rights to a share are thus the result of a just distribution, presumably, in the sense that they are determined by the relative axia since justice requires that rights be proportional to the relative axia. This seems to make just claims or rights dependent on the just distribution according to the axia. This raises a question of the relationship between the two principles of distributive justice, which are marked above as P1 and P2. NJR seeks to argue that P1 can be rewritten as P2, so a crucial question is what is implied by P2 that is not implied by P1; or is the introduction of rights at this stage simply adding an idle cog to the machine? (35)

An effect of the use of rights language here is that rights appear to carry some separate analytic or normative function. Agents are said to "have" rights, and these rights are separate from the things to which the rights refer. This feature of rights language is evident in the choice of example that immediately follows the above passage in NJR. In the only citational reference to Aristotle's texts at this stage, the argument is made as follows:

   For example, if X contributes one mina to a business venture while Y
   contributes ninety-nine, X has a just claim to only one-hundredth of the
   net earnings (see Pol. 3.9.1280a25-31). When the distribution does not
   conform to this principle--when individuals receive something other than
   what they have a right to--there will be justified complaints. (36)

In this passage it is argued that individuals should receive only what they have a right to. Individuals thus "have" rights to things, and having these rights is distinct from having the things themselves. The significance of the reformulation of just shares as rights in P2 is thus that rights now seem to be invested with some kind of independent theoretical standing of their own since people can have rights to shares independently of having those shares. It is this independent theoretical standing that gives rights talk its power since the rights that individuals have can be used to challenge the justice of existing outcomes. But in P2 the right to a share is determined by the relative axia and so does not actually have any independent standing. Yet the language of rights seems subtly to insert a separate criterion into Aristotle's argument, in that individuals should receive what they have a right to. In contrast to the passage above, where rights to a share are the result of a just distribution, the suggestion in the business venture case is that rights provide a principle for deciding whether a distributive outcome is just. A difficulty in trying to make sense of the relation between P1 and P2 is thus that the notion that just claims are the rights to what is justly distributed somehow seems to run alongside the quite different notion that just claims as rights determine what is a just distribution. This dual argument reappears in chapter 4, but before turning to that chapter, there are a number of points to be noted about the example of the business venture, the only passage from Aristotle's text cited in support of the argument in chapter 3 concerning distributive justice and claim-rights.

First, the kind of right that Miller claims to have found in the business venture case has not yet been explained (since it is to come in the subsequent chapter 4), and so the sort of duty entailed by this right or the question of who might be the holder of this duty is also not addressed in the business venture case. As an example of what is later argued to be a claim-right the business venture case thus turns out to be somewhat opaque. Furthermore, it could be argued that the duty entailed by any individual partner's claim-right to a fair share of the business proceeds lies with the partnership as a collective group and not with any one individual partner who may be thought to have gained at another partner's expense. (37) If the business venture example is taken seriously as a political illustration, it would therefore imply that citizens' claims for distributive justice are held against some collectivity or function within the polis or against the constitution, rather than against individual rival claimants for office.

Second, on purely translational grounds, the evidence of the business venture case is weak. It is a central plank of NJR's argument that the expression to dikaion is sometimes used in a sense equivalent to that of a claim-right. From this it would be expected that such a use of to dikaion would be provided from this business venture example, too, given that this is the only example given to illustrate the central link between distributive justice and rights in chapter 3, but no translation of the business venture case is provided there to show this. (38) Indeed, the business venture passage does not actually contain a usage of to dikaion that would be amenable to such a translation as a right since the only use of dikaion at Politics 3.9.1280a25-31 is in the negative expression ou gar einai dikaion which is normally translated as "it is not just" or "it would not be just." It is the former expression--"it is not just"--which is given in the translation of the passage provided in ONR: "For if one person has contributed [only] one mina out of a hundred but another has contributed all the rest, it is not just for the first person to get an equal share with the second." (39) In spite of this, however, Miller immediately goes on to infer that the passage implies a claim-right: "The point is clearly that each partner has a just claim--a right--to a share of the proceeds proportionate to his contribution." (40) There is no explanation provided, however, as to how "it is not just" implies that each partner has a just claim or right.

Third, the passage at Politics 3.9.1280a25-31, shows how distributive justice as it applies to business ventures is mistaken for the polis, since it uses the wrong notion of axia; the polis is concerned not with money or wealth but with excellence or virtue, and so the axia relevant for it should reflect this. There is thus an important sense in which the business venture case is being used as a counter-example in the Politics for the political analysis of axia. The business venture case leads up to the argument that the axia that is significant for the polis is not the contribution of money or wealth but of political excellence (politike arete), and that it is this excellence that is relevant for geometric proportionality. (41) But to dikaion does not appear in this later passage. The business venture example, therefore, hardly supports Miller's argument that to dikaion entails the notion of a just claim or right which is central to Aristotle's political analysis.

Chapter 4 then attempts to show that the unspecified just claims or rights of chapter 3 correspond to Hohfeldian claim-rights and that these claim-rights are natural rights. The case of political rights as contested rights to office will be considered here, as this forms the core analysis for NJR's overarching model of disputatious citizens such that the disputes about political justice at Politics 3 are held to be modeled on the disputes about distributive justice at NE 5. The chapter provides a translation of a crucial passage at Politics 3.12.1282b18-30 that is interpreted in terms of political rights. In the previous chapter 3 on the relation between distributive justice and rights, a footnote referred forward to chapter 4 for a defense of the ascription of rights to Aristotle, and now the defense is given that political rights to office are claim-rights (or just-claim rights) with their necessary (not logically equivalent) correlative duties, but all that is provided is the following statement:

   For Aristotle is considering a context in which individuals are disputing
   (amphisbetousi) over political offices (1283a11). Each of the parties is
   claiming that he should occupy the offices on the grounds of alleged
   superiority, and the resolution of the dispute will involve determining
   which members of society have a just claim to political offices. The
   presumption is that people who are superior in some respect and thus are
   more deserving have certain rights against others who are inferior in that
   respect and have, accordingly, a duty to yield. The right to hold office
   thus resembles a Hohfeldian claim right. (42)

Individuals are "disputing" (amphisbetousi) over the offices. The "resolution of the dispute" involves "determining which members of society have a just claim to political offices." This might suggest that it is the just claims that determine what is a just distribution, and such an interpretation would be consistent with NJR's emphasis on the importance of claim rights. During the prior period when all the contestants are putting forward their claims, however, there are neither just claim holders nor duty holders because the composition of these two groups is determined only with the resolution of the dispute and the allocation of offices. Citizens are not therefore claiming the offices on the basis of the just-claim rights which they actually have, since what is at issue is the identification (or determination) of which individuals have the superior axia and therefore the just-claim right. It is here that the importance of the juridical metaphor of political relations comes into play since the resolution of the dispute over the distribution of offices is modeled in terms of the outcome of a law case that decides upon the winners and losers amongst the rival litigants. Just-claim rights are therefore post hoc rights that are determined by the resolution of the dispute according to the relative axia. It follows that just-claim rights, or rights based on nature, can only be rights to the particular just shares that are assigned; they cannot be rights to be assigned a particular share. Having a just-claim right to political office thus means no more than that the individual has been assigned a particular just share according to the relative axia; it cannot refer to a claim that anyone has in advance of the just distribution and so it cannot determine what an individual's just share should be. Returning to the discussion above of the dual argument of NJR, it transpires that in spite of the importation of the language of rights and the powerful ambiguity of the notion of "having a just-claim right," such a right amounts to no more than the right to one's justly allotted share.

There is also the question as to why the just-claim rights established by the just distribution are meant to be just-claim rights. NJR's argument is that the distribution determines which claims to office are successful and which are unsuccessful, and that the unsuccessful claimants have a duty to yield, but there is no argument provided to establish why the right-holders can make claims against the unsuccessful or why the duty to yield is a correlative duty to those claim-rights. According to NJR's account, the duty to yield could just as well, indeed more reasonably, be taken as a noncorrelative duty analogously with the duty to charity; for example, the duty to yield could be a duty owed by the unsuccessful citizens to the polis (or to the rulers, the constitution, or the gods) to abide by the official distribution. This would make the duty a public matter of political order in maintaining the distribution rather than a private matter between erstwhile rival individuals. The right to hold office is thus quite unlike a Hohfeldian right since there is nothing to show that the holders of the rights and duties are correlative jural agents rather than winners and losers as in a court case involving rival litigants.

This lacuna concerning duties also shows up in the textual evidence cited. In Miller's translation of the passage at Politics 3.12.1282618-30 there is no mention of duties; the translation of to dikaion as a just-claim right cannot therefore be interpreted as a Hohfeldian claim-right which is held against another individual who has the correlative duty. (43) To establish that the claim is indeed a claim-right requires at least that this correlative duty is registered in Aristotle's text, but NJR's translations fail to provide this and, furthermore, no Greek locution is offered for the "duty" which is alleged to be correlative to to dikaion. (44) The argument in chapter 4 simply assumes that the mere assertion of a "right" implies that Aristotle must have had in mind that these were claim-rights against others who held the correlative duties, even though N JR does not argue that Aristotle actually mentions the duties that are correlative to political rights. The next piece of textual evidence provided is that of Politics 3.13.1283617-18, 21-3. Translations of these passages also fail to refer to the claim-rights being held against other individuals correlatively holding the duty, but this does not prevent that conclusion being drawn: "These expressions are used to assert a right--i.e, to make a just claim against other individuals." (45)

In the final paragraph of this section in chapter 4 on claim-rights, however, it is argued that the correlativity between rights and duties leads Aristotle sometimes to use to dikaion for the correlative duty rather than the claim-right itself. Two final citations from the Politics are included which are meant to support this, but NJR's own interpretations of these passages are in terms of what is "just" or "unjust," and are not in terms of duties whether correlative or not. (46) The first citation from the Politics is at 7.3.1325610-12, but NJR construes peithesthai dikaion as "it is just to obey" and not, say, as "it is a duty to obey." With reference to the final citation from Politics 5.8.1308a9, it is argued that "the phrase adikein eis atimian [is used] in the sense of `unjustly depriving [someone] of honour'," so here adikein is construed as "unjustly" and not, say, as "failing in the duty of." Indeed, NJR construes adikein as "doing an injustice" when a person fails to respect another's claim-right, rather than as "failing in a duty." Thus NJR's own translations fail to substantiate the argument that here to dikaion and its cognates refer to the correlative duty rather than to what is just (or unjust).

This section has reviewed the core argument in NJR that Aristotle's political rights to office are just-claim rights (or natural rights) in a Hohfeldian sense, and it has concluded that neither the specific arguments nor the textual evidence cited support this core argument.

IV

The previous sections have examined Miller's core argument that Aristotle's Politics and NE employ individual just-claim rights. This brings us back to Kraut's fundamental questions concerning what is meant by a "right" and what it is that is "essential to the concept of a right," and also to Schofield's remarks about the historiographic issue of appropriate linguistic context. The approach of this paper to the questions raised by Kraut and Schofield has been to use Hohfeld's analysis of rights since this is what N JR claims to use, but this is not to say that Hohfeld's analysis provides an account of the essence of rights. Hohfeld's analysis is itself historically specific, being the product of early twentieth-century American analytical jurisprudence and has been subject to extensive debate. (47) Furthermore, Hohfeld's analysis was a response to what was perceived as the loose and incorrect usage of the various rights terms, even by the leading legal authorities of Hohfeld's time. Thus Hohfeld's scheme is not a universal scheme--either temporally or conceptually--within which all discussions of rights must necessarily be placed whatever their historical, philosophical, or linguistic context, and it is therefore anachronistic to expect earlier writers necessarily to be deploying those conceptual distinctions which Hohfeld's work set out to emphasize and which legal theolists are still debating.

Whether Hohfeld's scheme is a useful one for understanding Aristotle's Politics and NE extends beyond disputes as to how individual words are to be translated and also depends on whether the Hohfeldian jural framework is congruent with Aristotle's political philosophy. In other words, consistent with Hohfeld's approach, it is in analyzing the use of these rights concepts within larger theoretical frameworks that some headway may be made. This suggests that such debates concerning the use of specific concepts are not resolvable at the level of individual concepts alone but need to take into account the broader theoretical structure or discourse within which such concepts are employed in generating the theoretical results that are associated with them. (48)

There is thus a prior question concerning the kind of theoretical structure or discourse that could sustain or generate such concepts. Following Miller's own appeal to Hohfeld's classification, the theoretical structure that is relevant for his argument is one embodying specific jural relations. This implies that the larger structure of Aristotle's political philosophy would need to be formulated in terms of a developed metaphor of jural/legal relations which serves to operationalize the relevant principles of distributive and corrective justice (whether natural justice or the positive law of the polis) by means of specific relations between the various individual agents who are designated as the bearers of the appropriate rights, duties, and so forth. Hence, in order to ascertain whether Aristotle could employ the concept of political claim-rights with respect to the distribution of offices within the polis, it is necessary to examine the overall theoretical structure of his political philosophy and the place of justice within it.

The objective of the section on justice in NE 5 is the establishment of the principles of justice as an other-regarding virtue aiming at another person's benefit and even at personal cost to oneself rather than against others. (49) It is the search for "the nature of justice and injustice." (50) Whereas what is just (to dikaion) conceived as universal justice concerns what is lawful in relation to another, what is just conceived as particular justice concerns what is equal or fair (to ison) in relation to another. (51) This requires establishing the general principles that guide what is equal or fair: for distributive justice this is the principle of geometric proportionality with respect to the appropriate notion of axia, (52) and for corrective justice it is arithmetic proportionality. (53) The standpoint of these investigations, therefore, is that of establishing the general principles of justice that determine the just outcome and with respect to which specific allocations of shares and gains/losses may be judged.

This theoretical framework is different from a Hohfeldian framework of jural relations between agents. Aristotle's approach requires comparing outcomes (shares and gains/losses) with the just outcome as determined by the application of a general rule or principle of justice. Comparisons are thus between outcomes and the just proportion, and this applies to both distributive justice at NE 5.3.1131616-20 and corrective justice at NE 5.4.1132a6-10. The Hohfeldian framework, however, is structured in terms of the defining jural relations between the agents who are the bearers of the rights, duties, and so forth. Questions of justice are framed in terms of these jural relations rather than in terms of a general standard of justice since it is the relations themselves which embody the principles of justice that are operative.

It is the argument of this paper that both the Hohfeldian framework and Miller's adaptation of it are alien to Aristotle's NE and Politics. The nearest that the NE comes to theorizing the norms of justice in terms of individual citizens who are disputing is at NE 5.4 on corrective justice in private transactions where those who are disputing seek justice from a judge. The passage at NE 5.4.1132a19-24 is the first passage cited (and translated) in N JR in direct support of to dikaion as a Hohfeldian just-claim right. (54) Nowhere in Miller's translation of this passage is "just-claim right" actually offered as a translation of to dikaion, but nonetheless it is inferred that this must be Aristotle's meaning:

   According to this passage, disputing claimants assume they will get justice
   (to dikaion) from the judge who is settling the dispute; and if they think
   the judge has correctly resolved the dispute, the disputants "say that they
   have their own" (1132a27-9). In this context, then, to dikaion means that
   which one receives in a just settlement of a dispute--i.e, to get that
   which is "one's own." This is clearly what the claimant has a right to or
   is entitled to (cf. Pol. 4.4.1291a39-40). It is the task of the judge to
   determine what each party has a just claim to, i.e. what each owes to the
   other. Hence, to dikaion has a use which anticipates Hohfeld's notion of a
   claim fight. I translate this use of to dikaion as "fight" or "just claim"
   or more fully "just-claim fight" (i.e. a right based on a claim of
   justice). (55)

The strategic move in this passage is in the third sentence which infers, from the argument that to dikaion means "that which one receives in a just settlement of a dispute" or that which is "one's own," that to dikaion "is clearly what the claimant has a right to or is entitled to." Here as elsewhere in NJR there is an unargued move from "what is just" in some sense to "what the claimant has a right to." It is also unargued to say that the judge's task is to determine "what each party has a just claim to" and that this amounts to "what each owes to the other," rather than that the judge has to determine what would be the just outcome or equal gains/losses.

NJR's defense of this inference, however, is based on an interpretation of what is "one's own" in the second sentence. This is elaborated in the following paragraph where, in response to the point that having or getting "one's own" is a broader notion than having or getting "what one's entitled to," it is argued that having "one's own" should here be construed narrowly in the sense of having a right to the thing since: "The disputing parties are making opposing claims to the same piece of property. Each claims that it is just for him to possess the object and for the other party not to interfere with his possession. To `have one's own' in this case is clearly to have one's claim legally enforced." (56) Thus the argument that to dikaion refers to a Hohfeldian just-claim right is based on the interpretation that what is "one's own" must refer to property in the modern sense of a claim-right with its correlative duty. This however is to assume what has to be proved, namely, that Aristotle's concepts are equivalent to Hohfeldian rights. Returning to Aristotle's text, however, provides a very different argument concerning what is one's own since there the analogy of the line is used to explain arithmetic proportion and this has nothing to do with rights. Aristotle's passage continues (from 5.4.1132a19-24) as follows:

   Now the judge restores equality: if we represent the matter by a line
   divided into two unequal parts, he takes away from the greater segment that
   portion by which it exceeds one-half of the whole line, and adds it to the
   lesser segment. When the whole has been divided into two halves, people
   then say that they "have their own," having got what is equal. This is
   indeed the origin of the word dikaion (just): it means dicha (in half), as
   if one were to pronounce it dichaion; and a dikast (judge) is a dichast
   (halver). The equal is a mean by way of arithmetical proportion between the
   greater and the less. (57)

There is no mention here of rival claims or of disputing parties. Nor is there any mention that having "one's own" refers to property rights or implies having one's claim legally enforced or being owed something by the other. Nor is there any mention of to dikaion in a sense other than "just." On the contrary, the point of the passage is that when people say that they "have their own," they have actually "got what is equal" in accordance with the principle of "what is just." (58) Furthermore, the passage continues to emphasize the significance of this general principle of equality by advancing an etymology of the words dikaion and dikast in terms of dichaion and dichast which refer to halving something (dicha: half). Equality as the general principle of corrective justice is thus accorded root importance not only in what the judge is meant to be doing and in what people "say that they have," but also in the proposed etymology of the key legal terms which is in accordance with what people themselves understand to be happening. (59) In view of this, even in the instance of corrective justice between private litigants, there is no evidence to accept the argument that to dikaion really means a claim-right against one's erstwhile rival claimant.

NJR argues that it is this model of disputing contestants in NE 5.4 that should be applied to the dispute over the constitution at Politics 3; it is this connection between the two texts that is used to justify the juridical metaphor for political relations. (60) Yet as individuals are not disputing their rights at NE 5.4, there is no basis for applying a rights-based model of lawsuits to the theoretical dispute over the constitution at Politics 3. In doing so, however, NJR conflates the dispute over the constitution with a dispute between rival individual claimants for office. (61) Aristotle's use of the verb "dispute" (amphisbeteo) in the constitutional debate at Politics 3.6-13 is with reference to the different interested parties or groups who are trying to claim constitutional power for themselves, and so the disputants are not individual rivals for office but the parties, classes, or partisans who are disputing self-interestedly about the constitution, and it is against these factional disputants that Aristotle's own argument is being directed. (62) All the different parties are said to accept the principle of geometric proportionality in which shares are determined by the relative axia, yet the parties disagree about the relevant axia since each one wishes to promote its own distinguishing axia and, hence, the constitution that would give power to itself: the oligarchs argue for wealth/birth, the democrats argue for free birth, and the aristocrats argue for excellence or virtue. (63) This constitutional debate about the axia that should receive political recognition poses a difficulty (aporia) that political philosophy has to resolve, (64) and so Aristotle first considers whether the offices should be distributed according to superior excellence in whatever respect, but this is immediately rejected. (65) NJR, however, interprets this passage to mean that individuals are disputing as to which ones of them are superior in terms of some already agreed axia since "the presumption is that people who are superior in some respect and thus are more deserving have certain rights against others who are inferior in that respect." (66) The context for Aristotle's discussion here (at 1282b24-30 and 1283a11-15) is the dispute beween different parties and their rival axiai, not between rival individuals given some agreed axia. Aristotle carries on considering the constitutional dispute between different groups and their axiai, (67) and finally the discussion is turned around to question the very notion of distributing offices to the few rather than to all the citizens who would thereby share in both governing and being governed. (68) Thus, whatever Aristotle's final verdict on the constitutional dispute is thought to be, the passage at 1282b18-30 (which forms the core argument concerning claim-rights to office in chapter 4) does not provide support for the argument that the dispute over the constitution is modeled on a rights-based lawsuit or that individual claimants are disputing their rights to office as if in a lawsuit. (69)

NJR argues that the verb "dispute" (amphisbeteo) carries connotations of legal dispute. (70) To the extent that amphisbeteo does carry such legal connotations, it is Aristotle's presentation of the constitutional debate that is being modeled in terms of a disputed lawsuit. Yet if Aristotle's notion of "dispute" at Politics 3.6-13 is indeed related to that at NE 5.4 concerning corrective justice as NJR argues, then the model of the lawsuit that is relevant for Aristotle's presentation of the constitutional dispute is one that is settled in accordance with the general principle of "what is just." Aristotle's own solution to the difficulty posed to political philosophy by the constitutional dispute would thus be functioning rhetorically as the authoritative and disinterested judgment of "what is just" that settles a disputed lawsuit, and so Aristotle's own role in this would be analogous to that of the judge or dikast at NE 5.4. NJR, however, misconstrues the rhetorical force of Aristotle's presentation and solution of the constitutional debate by conflating it with a description of the way in which individual disputants claim political offices for themselves and so it fails to identify the moral significance of Aristotle's solution to the difficulty posed to political philosophy as the judgment of "what is just."

Aristotle's emphasis in the NE on general principles of justice in establishing just outcomes accords with the concern in the Politics with the importance of the constitution in establishing the polis, since good constitutions must be informed by principles of justice. The constitution defines the relation between the polis and its citizenry, and it embodies ethical principles for facilitating the common good. This is at the core of Aristotle's political philosophy: the constitution--the framework of laws based on ethical principles--is what structures and facilitates the proper political life of the polis, its commitment to the common good, and its procedures for allocating common resources. It is the case, then, that relations between individual citizens fall under the terms of these general principles, (71) rather than that political relations are constituted by the individual correlative rights and duties between citizens conceived individually as rival litigants. The constitution should thus embody principles of justice which are to be applied in establishing the common good (and this will include adjudicating private disputes), but this is not the same as saying that the proposed constitution and the norms of justice embodied in it are to be theorized in terms of a juridical metaphor of litigious contests between individual citizens. (72)

V

The claim that Aristotle's political philosophy should be understood in terms of Hohfeldian natural rights raises important methodological issues that transcend linguistic disagreements over the translation of particular words. This paper has proposed that these disagreements need to be set in a wider theoretical or philosophical context of the meaning of different "rights" terms and that the theoretical implications of imputing the Hohfeldian framework, or even a version of it, to Aristotle's political and moral philosophy need careful examination. When analyzed in this wider theoretical context, Aristotle's writings are not well chosen as a example of an early discourse on natural Hohfeldian rights. (73)

The Open University

Correspondence to: Faculty of Social Sciences, The Open University, Walton Hall, Milton Keynes MK7 6AA, United Kingdom.

(1) Fred D. Miller, Jr., Nature, Justice, and Rights in Aristotle's Politics (hereafter, "NJR") (Oxford: Clarendon Press, 1995). By "rights based on nature" is meant rights based on natural justice, not rights possessed in a pre-political state of nature; NJR, 88, 90-1, 108-11, 122-3. Compare Fred D. Miller, Jr., "Aristotle and the Origins of Natural Rights," The Review of Metaphysics 49 (1996): 891-2.

(2) "Aristotle's Politics: A Symposium," The Review of Metaphysics 49 (1996): 731-907.

(3) NJR, 97-101. This is accepted in Roderick T. Long, "Aristotle's Conception of Freedom," The Review of Metaphysics 49 (1996): 775-802. It is questioned in Richard Kraut, "Are There Natural Rights in Aristotle?" The Review of Metaphysics 49 (1996): 755-74; Malcolm Schofield, "Sharing in the Consttution," The Review of Metaphysics 49 (1996): 831-58; and John M. Cooper, Justice and Rights in Aristotle's Politics," The Review of Metaphysics 49 (1996): 859-72. See also Fred D. Miller Jr., "Aristotle and the Origins of Natural Rights," (hereafter, "ONR") The Review of Metaphysics 49 (1996): 873-907.

(4) Kraut, "Natural Rights in Aristotle?" 773.

(5) Schofield, "Sharing in the Constitution," 833-4, 852-4.

(6) Schofield, "Sharing in the Constitution," 831-2, 856-7; Miller, ONR, 907.

(7) Miller, NJR, especially 93-111, 121-8; ONR, 881-2.

(8) Kraut, "Natural Rights in Aristotle?" 757, 773-4.

(9) A number of translations were consulted in writing this paper, but nothing is meant to hang on any particular translation used since the argument of this paper addresses how the notion of "rights" may be understood and defended textually. Translations consulted include Aristotle: The Politics, ed. Stephen Everson, trans. Benjamin Jowett, and rev. Jonathan Barnes (Cambridge: Cambridge University Press, 1988); H. Rackham, Aristotle: Politics (Cambridge, Mass: Harvard University Press, 1990); T. A. Sinclair, Aristotle: The Politics, rev. T. J. Saunders (Harmondsworth: Penguin, 1992); Aristotle: Nicomachean Ethics, ed. H. Rackham (Cambridge, Mass.: Harvard University Press, 1934); Roger Crisp, Aristotle: Nicomachean Ethics (Cambridge: Cambridge University Press, 2000); Terence Irwin, Aristotle: Nicomachean Ethics (Indianapolis: Hackett, 1985); J. A. K. Thomson, The Ethics of Aristotle, rev. Hugh Tredennick (London: Penguin, 1976).

(10) W. N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (hereafter, "FLC") (New Haven: Yale University Press, 1923), 23-64, first published Yale Law Journal 23 (1913).

(11) Hohfeld, FLC, 30-1, 35-8.

(12) Hohfeld, FLC, 38.

(13) NJR, 93-117.

(14) NJR, 106-7.

(15) NJR, 97-101.

(16) NJR, 94.

(17) NJR, 95-6.

(18) NJR, 96, original emphasis. This reasoning is also applied to the other three types of rights.

(19) NJR, 97-101; compare 115.

(20) NJR, 97.

(21) NJR, 96.

(22) NJR, 95.

(23) Franz Susemihl and R. D. Hicks, The Politics of Aristotle (London: Macmillan, 1894), 405 n. on 3.12.1282b20, cited at NJR, 97 n. 25; and A. C. Bradley, "Aristotle's Conception of the State," in A Companion to Aristotle's Politics, ed. D. Keyt and F. D. Miller (Oxford: Oxford University Press, 1991), 49-50, cited at NJR, 87, 97 n. 25.

(24) Bradley's argument in "Aristotle's Conception of the State," 49, that "Let us take, as an example of political fights, the suffrage. The poor man, then, claims this privilege as his right," contains just the sort of loose usage of different rights terms (claim, privilege, and right) that Hohfeld argued against.

(25) "individuals have rights within the polis against other individuals, including the rulers, but there is no suggestion of rights against the polis in Aristotle"; ONR, 880; although see the slight qualification at n. 14. Compare NJR, 112. I have been unable to find a further discussion of rights against the rulers.

(26) ONR, 879-80. This is not the place for a detailed examination of Locke's use of rights terminology, although it is arguable that much of the current exegesis of Locke's arguments also misapplies Hohfeldian terminology. Locke and rights terminology is examined in V. Brown, John Locke, Language and Liberalism, in preparation.

(27) NJR, 100; also NJR, 107, 122; ONR, 882.

(28) As argued in Ernest Barker, The Politics of Aristotle (Oxford: Clarendon Press, 1948), 150 n. 1: "The last three chapters--IX, X, and XI [of book 3]--have all been concerned, in different ways, with the general problem of distributive justice, or, in other words, with an attempt to determine what persons, in view of their contribution to the state, should be specially recognized by it in its distribution of office and honour."

(29) NJR, 97-101, 107-8, 122. The Greek verb agonizomai includes contending at the games, in fights, or in the law courts; Liddell and Scott, Greek-English Lexicon (Oxford: Clarendon Press, 1996).

(30) NJR, 100.

(31) NJR, 71 n. 8.

(32) NJR, 71.

(33) The following footnote is given here: "Section 4.3 below defends the ascription of rights claims to Aristotle"; NJR, 71 n. 8.

(34) NJR, 71.

(35) As argued by Schofield, "Sharing in the Constitution," 852-4.

(36) NJR, 71.

(37) Indeed in ONR, there is a shift in wording that suggests just this point: "When individuals do cooperate for mutual advantage, however, justice entails that each of them has just claims against the others"; ONR, 888; "the others" refers collectively to the rest of the partnership, not to particular individuals.

(38) The index locorum in NJR gives pp. 71, 125, 157, 161 for this passage but none provides a translation.

(39) ONR, 888.

(40) ONR, 888.

(41) Politics 3.9.1281a4-8. This is not the end of Aristotle's argument, however; see below.

(42) NJR, 100.

(43) NJR, 100. Cooper, "Justice and Rights in Aristotle's Politics," 870-2, disputes the translations of "rights" here.

(44) Apart from to dikaion itself; see below.

(45) NJR, 101. This also applies to the passages cited at Politics 3.16.1287611-13 and 6.3.1318a23-4.

(46) Rhetoric 1.14.1375a9-10, is used to support this, but here dikaia are said to include "oaths, promises, pledges, and rights of intermarriage."

(47) For a recent contribution see Matthew H. Kramer, N. E. Simmonds, and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Oxford University Press, 1998). V. Brown, "On reformulating Hohfeld's scheme of jural relations," unpublished paper, offers a critique and extension of the Hohfeldian scheme of jural relations.

(48) See also M. F. Burnyeat, "Did the Ancient Greeks Have the Concept of Human Rights?" Polis 13 (1994): 1-11.

(49) See NE 5.1.1129b25-1130a13.

(50) NE 5.1134a14-16.

(51) NE 5.2.

(52) NE 5.3.

(53) NE 5.4.

(54) That is, it introduces the section on just-claim rights, NJR, 97-101.

(55) NJR, 97-8.

(56) NJR, 98.

(57) NE 5.4.1132a24-32. NJR does not provide a translation of this passage; the translation here is Rackham's, but nothing is meant to hang on this particular translation.

(58) At NE 5.4.1132b 16-20, "they say they `have their own'" when there is "a mean between gain and loss," that is, when they "have neither lost nor gained."

(59) In the Penguin translation this derivation is said to be false, p. 181 n. 3.

(60) NJR, 107-8, 123.

(61) Compare NJR, 100, 122.

(62) For example, at Politics 3.8.1280a6, 3.9.1281a9-10, and 3.12.1283a11; compare NJR, 100, 122 n. 100.

(63) Politics 3.9.1280a7-25; compare NE 5.3.1131a25-9, NJR, 124-8.

(64) Compare Politics 3.8.1279612-15.

(65) See Politics 3.12.1282618-30.

(66) NJR, 100, emphases added; the reference for "disputing" is given as Politics 3.12.1283a11.

(67) Politics 3.12.1283a15-3.13.1283627.

(68) Politics 3.13.1283b27-1284a3. At 3.13.1283627-30, it is argued that "none of the principles" on which men claim to rule over others is fight. V. Brown, "Self-Government: The Master Trope of Republican Liberty," The Monist 84 (January 2001): 60-76, examines some implications for Aristotle's notion of freedom (eleutheria).

(69) Gewirth, Reason and Morality, 100-1, does not interpret amphisbetousi in individual terms: "Aristotle's analysis of the divergent grounds on which different groups in the state lay disputatious claim (amphisbetousi, diamphisbetousi), even justly (dikaios), to political authority."

(70) NJR, 123.

(71) Such principles would need to be interpreted and applied in the particularity of the instances that make up the life of the polis.

(72) This suggests that the linear spectrum of the dichotomy between "individualist" and "holistic" approaches to Aristotle's notion of the common advantage (NJR, 194-224) fails to take account of the complexity of the ways in which the relationship between the individual and the polis is theorized in the Politics. Brown, "Self-Government: The Master Trope of Republican Liberty," examines the significance for Aristotle's Politics of the homology between self-government within the soul of a free man and self-government within the polis, and how this trope was constitutive for some later accounts of republican liberty.

(73) I should like to thank the Dean and Faculty of Social Sciences, The Open University, for financial support while this paper was being written. During this period I was a Visiting Philosopher at the Sub-faculty of Philosophy, Oxford, and I am extremely grateful for the hospitality provided me. I should also like to thank Myles Burnyeat for commenting on an earlier version of this paper.

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