Leo Strauss and Natural Right: The Practical Ideal of Mixed Regime

RESTRAINT IS AS NATURAL TO MAN AS FREEDOM. It is the other side of the coin of liberty. It cannot therefore be said that the forcible imposition of boundaries, both external and internal, that comes with the governance of the city is unnatural. Just as man must exercise force to remain in command of his lower faculties, so must the social body, the city, exercise force to restrain the recalcitrant, the lawless or unvirtuous. "What is true of self-restraint, self-coercion, and power over one's self applies in principle to the restraint and coercion of others and to power over others." Strauss, 133. The city is nothing less than man writ large. "Serious concern for the perfection of a community," therefore, "requires a higher degree of virtue than serious concern for the perfection of an individual." Strauss, 133. It follows that restraint in the city must be done by force.

This is an important principle. Too often, force is seen modernly as incompatible with freedom, as something unnatural, as an evil. In the classical natural law tradition, though there may be tension between freedom and restraint, they are not found to be at mutually exclusive antipodes. Liberty and restraint go hand in hand, and it is incorrect to view liberty as good and restraint as evil. Good is found in the proper balance between liberty and restraint.

Justice and coercion are not mutually exclusive; in fact it is not altogether wrong to describe justice as a kind of benevolent coercion. Justice and virtue in general are necessarily a kind of power.

Strauss, 133.

There is an intimate connection, a connection that modernly has been lost, between virtue and political activity, between virtue and law. Statecraft is no longer seen as involving soulcraft. This is anti-Socratic, anti-classic. "The morality of civil society or of the state is the same as the morality of the individual."
--Leo Strauss
This is against the classic natural law view of things. "Political activity," viewed correctly, "is then properly directed if it is directed toward human perfection or virtue." Strauss, 134. It is this ordering toward virtue, virtue of the individual citizen, that makes the city ultimately have the same morality as the morality of an individual. "The morality of civil society or of the state is the same as the morality of the individual." Strauss, 134. It is this that distinguishes a city from a band of robbers. The robbers do not band together for the purpose of promoting virtue among themselves; rather, it is an exclusive club of vice and selfish self-promotion at the expense of others. Men band themselves together in cities, at least in the ideal or practically ideal city, for another purpose: the promotion of virtue.

Because the city and the citizen shared the same end--the promotion of virtue--it followed that there would be inequality within the city walls. Egalitarianism is not a bed fellow of the classic view of things. Perfection was the goal of man and of the body politic, and this meant that one could expect inequalities among men, despite their essential equality. Necessarily, there are some men that have better natures than others, that have more ordered faculties, that have exercised a greater effort at self-discipline and self-mastery and are more virtuous than others. "Since men are then unequal in regard to human perfection, i.e., in the decisive respect, equal rights for all appeared to the classics as most unjust." Strauss, 134-35. "One Law for the Lion & Ox is Oppression." (Blake) One had to realize that among men there are lions and oxes. There are those that are by nature better formed to be rulers.

It is, however, altogether the reality of things that the ideal city is rarely to be a reality. There are too many contingencies in the life of cities and of men that seem to work against the ideal. But for all that, one ought not to despair, though one may have to lower one's sights. "Whereas the best regime is possible only under the most favorable conditions, legitimate or just regimes are possible and morally necessary at all times and in all places." Strauss, 140. There is, in the classic view of things, therefore, a distinction between the ideal or utopian polity, the just or legitimate polity, and the unjust or illegitimate polity. Perfection is to be expected rarely, and a certain level of imperfection in the administration of a city does not immediately translate into injustice and illegitimacy.

The distinction between the best regime and legitimate regimes has its root in the distinction between the noble and the just. Everything noble is just, but not everything just is noble. . . . A very imperfect regime may supply the only just solution to the problem of a given community; but, since such a regime cannot be effectively directed toward man's full perfection, it can never be noble. . . . The best regime is that in which the best men habitually rule, or aristocracy.

Strauss, 140.

Xanthippe Dousing Socrates by Reyer van Blommendael (1655)

There is, however, a constant factor that works against the maintenance of the ideal or noble city. For the city's rule to work, the few wise cannot use force over the many unwise, and so the few wise have to try to persuade the unwise. However, the wise have limited ability to persuade the unwise because the unwise, wed perhaps to some passion, or limited by some vice or by limited education and culture, are not always able to grasp reasoned argument. Consequently, the wise shall not be able to govern the unwise, just like Socrates was unable to govern his wife, Xanthippe. Generally, what happens is the opposite: one or more of the unwise will more readily able to appeal to the mass of his unwise fellows, and thereby will usher in a tyranny, even through majoritarian consent. Here is a distinction between classic natural right and its egalitarian cousin:

The political problem consists in reconciling the requirement for wisdom with the requirement for consent. But whereas, from the point of view of egalitarian natural right, consent takes precedence over wisdom, from the point of view of classic natural right, wisdom takes precedence over consent.

Strauss, 141.

The best way of reconciling wisdom and consent is through law and a mixed regime, a regime that floats halfway between aristocracy and democracy. The wise legislator ought to frame a code of laws, an embodiment of wisdom, that the body politic adopts. The law, then, should curb the advent of tyranny, as "the rule of law is to take the place of the rule of men, however wise." Strauss, 141. The law can then achieve, sort of as a proxy, what the rule of the wise man could achieve. The law requires that it be administered by someone in equity, by the "gentleman," a man distinct from the "wise man." The "gentleman" is a middling creature between the common man and the wise man. So it all comes down to this:

To summarize, one may say that it is characteristic of the classic natural right teaching to culminate in a twofold answer to the question of the best regime: the simply best regime would be the absolute rule of thew wise; the practically best regime is the rule, under law, of gentlemen, or the mixed regime.

Strauss, 142-43.

St. Augustine and the City of God

In the classic tradition, natural right was therefore inextricably and intimately linked with political right. The notion of natural right distinct from and in opposition to the polis was simply unthought. Natural right was found within the City of Man.

For the classic Greek and the Roman imitator, there was no City of God. The classic thinking of natural right was significantly modified by the intrusion, as it were, of the biblical faith. That occurred in the encounter between the City of God and the City of Man, when the Law of Moses and the Law of Christ confronted the classic notions of natural right as had been discovered and developed by Socrates, Plato, Aristotle, and Cicero.

Leo Strauss and Natural Right: The Socratic Dethronement of Hedonism

SOCRATES MAY BE REGARDED THE FOUNDER of political philosophy and therefore the "originator of the whole tradition of natural right teachings." Strauss, 120. It is the teaching flowing from Socrates and developed and amplified by Plato, Aristotle, the Stoics, the Church Fathers and Christian thinkers, most especially Thomas Aquinas, that may be known as the "classic" natural right doctrine. It ought to be distinguished from the "modern" natural right doctrine that hales from the 17th Century, and apes its classic predecessor.*

It is difficult to apprehend the huge revolution in thought initiated by Socrates since we cannot easily put ourselves in the frame of mind of the pre-Socratics who looked not so much on human things as on natural things. One part of the pre-Socratic doctrine, however, Socrates maintained. That was the distinction between law as convention and nature. That distinction was maintained even while the advocates of classic natural right insisted that positive law and conventional morality ought nevertheless to reflect the order of nature.

Quid est? What is it? That is the thrust of the Socratic inquiry. With respect to any subject, the Socratic thinker asks What is it? What is law? What is justice? What is right? What is it to be man? Socrates sought to find the eidos or idea of a things, the shape, the form, the character of a thing that distinguish its being from the entirety of being as a whole. The Socratic inquiry sought to determine the reason behind things, particularly behind things human as distinguished from things natural and things divine. It sought the ratio rerum humanarum, the reason behind human things, without thereby deprecating or slighting the things of nature or of the gods. With great confidence in "common sense," and without any of the epistemological scruples that haunt the moderns since Descartes, Socrates endeavored to climb or ascend from opinions to truth. There was, he believed, sufficient truth in the opinions of men, even in their tension, contradiction, or variety, from which truth could be distilled by the process of dialectics, which Strauss defines as the "art of conversation or of friendly dispute." Strauss, 124. Opinions were the must from which the wine of truth could be pressed. The wine was in the grape if only one had the desire to educe it out through dialectic.

The opinions are thus seen to be fragments of the truth, soiled fragments of the pure truth. In other words, the opinions prove to be solicited by the self-subsisting truth, and the ascent to the truth proves to be guided by the self-subsistent truth which all men always divine.

Strauss, 124. This Socratic characteristic distinguishes them from the conventionalists. Conventionalism, distrustful of human accretions and traditions, disregarded the "understanding embodied in opinion," and appealed "from opinion to nature." Strauss, 126. Unfortunately, it then lost sight of nature, or at least that part of nature that was typically human.

More fundamentally, Socrates rejected the basic premise of conventionalism. As we have seen, conventionalism was hedonistic or materialistic at heart. Conventionalism identified the good with the pleasant. At the heart of the Socratic revolution was therefore the rejection of hedonism as the basis for determining what was good and what was right:

The basic premise of conventionalism appeared to be the identification of the good with the pleasant. Accordingly, the basic part of the classic natural right teaching is the criticism of hedonism. The thesis of the classics is that the good is essentially different from the pleasant, that the good is more fundamental than the pleasant.

Strauss, 126. For Socrates it was not pleasure but want and the desire to satisfy want that was the center of inquiry of reality. It was especially important to identify such wants, and not to view them as a disordered bundle of wants, but to recognize the natural order in them. "The order of the wants of a being points back to the natural constitution, to the What, of the being concerned; it is that constitution which determines the order, the hierarchy, of the various wants or of the various inclinations of a being." Strauss, 126-27. The proper hierarchization of the wants of man is what supplies the fodder, the substrate of natural right. Once viewed within the context of their natural ordering, what one identifies as preeminent takes one outside the hedonistic camp. Pleasure is not the ruling principle. Reason is the ruling principle. The natural order is what identifies reason, and not pleasure, as the keystone of man's moral nature.

It is the hierarchic order of man's natural constitution which supplies the basis for natural right as the classics understood it. In one way or another everyone distinguishes between the body and soul . . . . [and that] the soul stands higher than the body. . . . That which distinguishes the human soul from the souls of the brutes . . . is speech or reason or understanding. Therefore, the proper work of man consists in living thoughtfully, in understanding, and in thoughtful action. . . . The good life is the perfection of man's nature. It is the life according to nature. One may therefore call the rules circumscribing the general character of the good life "the natural law."

Strauss, 127. Pleasure, which had wrongly occupied the throne on the dais of morality, was dethroned. Human excellence, virtue, was put in the usurper pleasure's place. Human virtue bears the crown of reason. Reason was no longer to be a handmaid of pleasure; rather, reason was to the the handmaid of virtue. If pleasure walked with virtue, then pleasure was welcomed as a boon. But if pleasure and virtue departed, then the path of virtue had to be trod alone. This is what makes a man a man.

But a man did not, could not do this alone. For man was by nature also a social being. Speech or reason is what distinguishes man from the brutes, and speech or reason is what allows communion between one man and another. Man is therefore "social in a more radical sense than any other social animals: humanity itself is sociality." Strauss, 129.

Because man is by nature social, the perfection of his nature includes the social virtue par excellence, justice; justice and right are natural.

Strauss, 129.

Cecrops, First Athenian King

There is yet another Socratic addition to the moral equation. Though free, man knows that there are limits to his freedom. "There is no relation of man to man in which man is absolutely free to act as he pleases or act as it suits him." Strauss, 129. Even when he oversteps these boundaries and thus produces a sort of social trauma, man constructs, as it were, scar tissue that shows the original injury. When man oversteps his freedom, society displays indicia of neuroses. Thus the Greeks had their doctrine of autochthony** to justify their seizure of land, the Hindus their karma to justify their caste system. Even in its breach, the rule is apparent:

Man's freedom is accompanied by a sacred awe, by a kind of divination that not everything is permitted. We may call this aw-inspired fear "man's natural conscience." Restraint is therefore as natural or as primeval as freedom. As long as man has not cultivated his reason properly, he will have all sorts of fantastic notions as to the limits set to his freedom; he will elaborate absurd taboos. But what prompts the savages in their savage doings is not savagery but the divination of right.

Strauss, 130.

This is a lost truth: that restraint is as primeval as freedom. Rule is as fundamental as liberty. Fences are as fundamental as the field. We are bound by our nature, and outside its sacred pale, we queer ourselves and wander, as nomads or brigands do from law, at our peril to our certain misery.

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*The "classic" natural right doctrine should also be distinguished from the "new" or "integral" theories of natural right such as those advanced by Grisez, Finis, and George.
**The Athenians of 5th and 4th century B.C. claimed to be an autochthonous nation, that is, a nation that had never changed their place of habitation, indeed, they were sons of the very soil, and so had never dispossessed any prior peoples of the land which they occupied. Cecrops (Kekrops or Κέκροψ), the mythical first king of Athens, virtually sprung from the ground.

Minos: Law as "Discovery of Reality"

THE PLATONIC DIALOGUE Minos (scholars debate on whether it was written by Plato, and so the author is often referred to as Pseudo-Plato) appears to be a prologue to Plato's Laws, as the dialogue Minos ends with praise of the Cretan king Minos, and the Laws begins with a review of those laws. The dialogue is set in Crete. It is, as the scholar Leo Strauss wrote in his analysis of the dialogue, On the Minos, "the only work included in the body of Platonic writings which has no other theme than the question 'What is law?' and the answer to it." [Leo Strauss, "On the Minos" in Liberalism Ancient and Modern (Ithaca: Cornell University Press, 1968), 65 (herein Strauss)] Interestingly, contrary to most of Plato's other dialogues, the companion is unnamed, though three times Socrates refers to him as a common form of endearment, ὦ βέλτιστε, o beltiste, "my excellent friend." Perhaps the the beloved companion is the Medieval "every man," and so need not have a name.

The dialogue starts, as Strauss notes, abruptly with the question posed by Socrates to his anonymous companion:

"Tell me, what is law?"
Ὁ νόμος ἡμῖν τί ἐστιν?

It is a question that "everyman" must answer. Socrates's companion asks: to what does Socrates refer when he uses the vague term "law"? And Socrates feigns surprise that the term law may be so vague and equivocal, and not univocal such as the term "gold" or "stone." But Socrates does clarify that his question is directed to "law as a whole" (τὸ πᾶν τί ἐστιν νόμος). As a first, tentative answer, his companion takes "law as a whole" to mean positive law, as he understands "law as a whole" to refer to "things loyally accepted," that which is commonly practiced (ἀλλ' ἢ τὰ νομιζόμενα), a reference to accepted conventions.

But in answering thus, Socrates's companion misunderstands, and equates, where he should distinguish, the form of law with the substance of law, just as if one confused speech, which is conventional, with the thing that was spoken through speech, which may not be conventional.

Socrates's companion sees the articulated distinction between speech and concept, expression of the thing and the thing itself, and so rejects his initial definition of law as "things loyally accepted." The law, then, may be defined as the means by which the loyally-accepted-things are accepted. But what sort of thing is this? Socrates prods: is law something that is man-made and learned or is it something that is divine and discovered. Is it a product of traditio or inventio, something that passed along or something that we come upon like an art, techne, τέχνη?

Socrates's companion suggests that law is perhaps the city-state's resolutions and decrees, the dogmata and psephismata of the State, what Socrates, with his friend's agreement, calls politicodoxy, the opinion of the State, Δόξαν πολιτικὴν, doxan politiken. Again, Socrates's friend has fallen into legal positivism. But Socrates remains dubious of this definition, and suggests that there may be a better definition of what law is.

Socrates begins his efforts at getting his companion to see that law is more than merely the positive law of the State by distinguishing between the sage (σοφοί) and wisdom (σοφίᾳ), the just (δίκαιοι) and justice (δικαιοσύνῃ), the law abiding person (νόμιμοι) from law-abidingness (οἱ νόμιμοι νόμῳ), and even negatively, the lawless (ἄνομοι) from lawlessness (ἄνομοι ἀνομίᾳ), all of which distinctions his friend sees. Then Socrates links the notion of law with justice (and both with what is noble, κάλλιστον), and lawlessness with injustice (and both with what is base, αἴσχιστον). Law, justice, the good all further and advance the political life of the city, whereas lawlessness, injustice, evil all destroy life in common. And Socrates's companion agrees that all this is so.

So Socrates concludes: the law is noble, and it ought to be sought after absolutely as a good, and his friend concurs.

But then it is conceded by both Socrates and his friend that not all resolutions (δόγματα) of the city are good, for some resolutions are evil. Yet earlier it was agreed that law was absolutely good, and in nowise evil. It is the palpable fact that the laws of the state (dogmata) may be evil, and not necessarily good, yet that law is absolutely good and not evil, that forces the conclusion that the city's resolution or law, is not properly a law at all. So it is simplistic to maintain the positivist doctrine that law is nothing but the decree of the state.

And yet Socrates insists that law is nevertheless an an opinion of sorts (δόξα), a good (χρηστὴ)opinion, that is, a true (ἀληθής) opinion, as the good and the true are equivalent. And so law is linked both with good, and with the true. And what is true, Socrates continues, is the discovery of reality, of being (ὄντος ἐστὶν ἐξεύρεσις). This allows Socrates to issue forth his most fascinating conclusion:

So law tends to be discovery of reality.
νόμος ἄρα βούλεται τοῦ ὄντος εἶναι ἐξεύρεσις

Minos, 315a

In Ficino's translation, Lex itaque veritatis inventio esse vult. Law is an inventio, a coming upon, a discovery. Law exists prior to the time at which we arrive upon it, and it requires a searching out, a yearning to find it. At its root, law is a reaching out, a desire, even an encounter with reality resulting from such yearning. And so Strauss appropriately sees Socrates as envisioning law as something that "wishes to be the finding out of what is." Strauss, 67 (emphasis added). It is the human yearning toward being, which is what human law is at its most basic, that explains both its continuity and constancy, as well as its variety. It explains why human sacrifice is considered illegal by the Athenians, but was considered legal by the Carthaginians. It explains why law changes throughout the historical development of a culture or a society. Yet though laws display such variety and contrariety, all men agree that just things are just, in the same manner that they consider noble things noble, base things base, and reality real. All this they they consider as universally as the concept that things that weigh more are heavier than those that are lighter. These are universal beliefs, and the Greeks share this even with the Persians--their historical enemies. So Socrates concludes:

Then whoever fails to attain reality, fails to attain accepted law.
ἂν ἄρα τοῦ ὄντος ἁμαρτάνῃ, τοῦ νομίμου ἁμαρτάνει
Probe igitur confessi sumus legem ese veritatis inventionem? (Ficino)

Minos 316b

In other words, he who falls short, fails to attain, or sins against reality, falls short, fails to attain, or sins against the law.

If all this is true, then why, Socrates's companion asks, to explain the diversity in human laws?

As Strauss describes Socrates's efforts: Human law has not grasped reality or truth or the universal law, since reality or truth or the universal law is unchanging, yet human law obviously changes and is changing. Strauss, 67. If human law had grasped the underlying reality of law, then law, at least as expressed by humans, would be unchanging, and yet it clearly is our experience that it has not. Human laws are myriad. The variety of human law, however, is not a defect of the universal law. Rather, the problem arises "due to the defects of human beings," that is their fallibility. Strauss, 68. The defect in human beings "does not affect the law itself," which is "infallible." Strauss, 67. "But if law only wishes, or tends, to be the finding out of what is, if no law is necessarily the finding out of what is, there can be an infinite variety of laws which all receive their legitimation from their end: The Truth." Strauss, 67.

Socrates then turns to discuss who may be the best historical figure to have concretized the law as a straining toward reality. Socrates tries his hand at a response by analogizing from the commonality among all cultures of the laws of medicine, agriculture, and cookery. He analogizes those arts, with the arts of running a state, the task of the statesmen and kings (οἱ πολιτικοί τε καὶ οἱ βασιλικοί). Viewed in this manner, laws may be found to be these leaders' writings (συγγράμματά), the best of which is not Lycurgus or Rhadamanthus, but Minos, the King of Crete.

Socrates's companion bristles at the suggestion that the King of Crete ought to be considered the ideal king and lawmaker (νομοθέτης), as the Greek tragic fictions have displayed him as a savage, harsh and unjust. (By ending with encomium for the Cretan laws, and not those of Athens, perhaps the author, if it was Plato, intended to criticize the Athenian laws, which, after all, had put to death Socrates, Plato's beloved teacher.) In defense of his view, Socrates appeals to Homer and to Hesiod, who are more reliable witnesses in his view of King Minos. These latter witness to King Minos and his consorting and discoursing with Zeus (Διὸς). His scepter was that of Zeus, and it was with Zeus's scepter--that is under and with God's authority that he ruled, and did so justly.

It is when Socrates links lawcraft with soulcraft that the dialogue abruptly ends. The relationship between law and soul it appears must wait for another day. The conversation ends.

Though Minos does not provide a full and satisfactory concept of law, both natural and positive, it "leads up," as Strauss observes, "to the view that a bad law is not a law." In the Minos, we are at the threshold of a "leap in being" with respect to the law. In this Platonic dialogue we may claim to find the germ of the Christian concept that an unjust law is no law at all, and the rejection of the view that the positive law of the State is the only reality there is. Law is a search for reality,for being, for the deep magic. Ultimately, it is the search for Being. The Christian will learn many years after Socrates offered the rooster as a sacrifice to Asclepius, that God is as much Law as he is Love, and that God, who is the source of all reality, is the source of all authority and the end to which all law ultimately tends. In searching for the meaning of law we necessarily should come upon reality, the good, and the true, ultimately God. The positivists, such as Austin and Holmes, it would seem in rejecting the wisdom of the Greeks, the words of Scripture, and the teaching of the Church, have taken a great fall backward into barbarism.