Jurisprudence 2006
Syllabus
The Textbook
Day 1--August 22
Babylonian Laws I
Babylonian Laws II
Hammurabi--review
Aug. 29--Bib/Plato
Euthyphro and Crito
Paper Guidelines
Nicomachean Eth. I
Nico. Ethics II
Nico. Ethics III
Nico. Ethics IV
Cicero
Justinian's Institutes
Institutes II
Babylonian Talmud
Talmud II
Talmud III
Hugo Grotius
Grotius II
Early Rousseau
Early Rousseau II
Early Rous III
Rousseau's Walks I
Rousseau's Walks II
Rousseau's Walks III
Lisbon Earthquake I
Earthquake II
Bentham's Spirit
Bentham's Words
Benth's "Conversion"
JS Mill I
Mill and Emotions II
Mill and Emotions III
C.C. Langdell
Burying Langdell
Legal Realism I
Legal Realism II
Legal Process
Brown v. Board
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Nichomachean Ethics I
Professor Bill Long 9/3/06
Understanding the Flow of the Work
The purpose of this essay is to walk you through the flow of the first four books of the Nicomachean Ethics ("NE") so that you can be in a better position to understand the excerpts from Book V which I have assigned for 9/5/06. The other essays go into more detail on the doctrine of the mean and the structure of Book V. The reason I am writing these essays is that our editors have done a miserable job not simply in introducing the NE to you but also in excerpting Book V. The translation they use is out-of-date; the language is unclear; the central concept that Aristotle introduces in Book V, the notion of mathematical proportion, is completely ignored. Perhaps they feel that since most law students (and they themselves?) are "math-challenged," they ought to leave out mention of "math." But that is where Aristotle goes. So, let these four essays be an attempt to introduce you to the NE and the flow of Book V.
Aristotle's Overall Aim
In the NE, Aristotle is speaking of practical concerns. In his other work he talks about three types of intelligence or investigation--theoretical (relating to God, physics, math), productive (relating to skill at producing things) and practical (relating to how you live). In the last category are his works on politics and ethics. Politics emphasizes how you live in community (since people are "political animals"); ethics stresses how you organize your own desires and virtues. Thus, the discussion of justice, which occurs midway through the NE will occur in the context of his larger discussion of virtues. Justice is not going to be simply a personal virtue (like patience or wittiness); it is also something that governs relationships of people in the community. In this regard it might seem natural to discuss it in the context of politics rather than ethics, but Aristotle wants to use his famous Doctrine of the Mean (books II-IV of NE) developed in the context of personal ethics, also to apply to justice.
Thus, the NE gives us an insight into the personal virtues one cultivates in living in community. But two points need to be made right away on this. First, the NE, as with Aristotle's other extant works, is the product of his lecture notes that may have been worked over by his students/editors after his death. Thus, the work doesn't "flow" like an early Platonic dialogue; we often have to stop, read again and again, shake our heads and move on. Second, in the NE Aristotle isn't trying to provide normative ethics (how you ought to live). He is, in contrast, presenting descriptive ethics (how people actually live). Thus, when he says that people seek happiness in life, and that the cultivation of virtue is the road to happiness, he is not suggesting that you be virtuous or ethical; he is saying that this is the way the "best" people live.
A Word on Words
Aristotle develops his own unique philosophical vocabulary but it became so popular that it came down to us as the "normal" way we talk. A few of his leading terms are virtue, happiness, and characteristic/habit. Let's say a word about each. Happiness is not what we think of as a feeling of contentment, but is rather a term to describe a life which flourishes. Aristotle argues that the goal or end of life, the thing we most seek, is happiness. When he speaks of the goal or end (the telos), he isn't referring to intermediary goods; rather he is speaking of an ultimate pleasure or satisfaction we want. For example, if I asked you why you study jurisprudence, you might say that you want to learn about some significant thinkers on law and justice from the past, but if I kept on asking you questions about motivation, the topic would turn to things like graduating from law school, becoming a better lawyer, making a life filled with friends, enough resources, status (the goals would be different) but, ultimately, you would want a satisfying or flourishing or thriving life. That is what Aristotle means when he says that the goal we seek is happiness.
What is the road to get there? That is where "virtue" or "arete" comes in. Rather than virtue being a series of "do's" or "don'ts" in order to be a morally acceptable person, Aristotle thinks of virtues as things cultivated by long practice (rather than study). A virtue is the functional excellence of a person, animal or thing. This might be best illustrated through the case of a knife. A knife has no "virtue" in a "do's" and "don't's" sense, of course. But a knife has virtue, for Aristotle. What is the virtue of a knife? That it cuts well. That it, a virtue is a characteristic feature performed well. The virtue of a knife is it cuts well; the virtue of a musical instrument is that it is well-tuned; the virtue of a shoe-maker is what makes him produce good shoes. As one scholar says, "Arete is that quality which enables its possessor to perform his own particular function well" (NE, ed. by Martin Ostwald, p. 304). Thus, when we speak of the virtues that humans cultivate in order to reach happiness, we are looking for the particular characteristics that make us function well.
Speaking of characteristics, I need to introduce the third word--trained ability or characteristic. This is an extremely important word for Aristotle (the Greek term is hexis). I provide the Greek term because the word "hexis" is derived from the Greek verb "to have" or "hold as a possession," and therefore a "hexis" is something that is a firmly fixed possession established by habitual and continual effort or action. Once you attain it, it is always present, even though it still must be "activated" in the appropriate circumstance. The Latin word for "to have" or "to hold as a possession" is habere, whence we derive our word "habit." Thus, when parents urge children or law professors urge students to "cultivate good habits," we are being very Aristotelian. We assume that if you take on activities repetitively (such as being able to study when you sit down for that purpose), then that discipline will turn into a habit and you can call on that habit at any time throughout your life. Aristotle uses the word in the NE in conjuction with his discussion of virtues. The "best" people act in habitually virtuous ways and thus are true to their nature and achieve fulfillment/thriving/happiness.
This, then, is Aristotle's ethical system in a nutshell. As you might see, it is quite similar to ethical advice you probably have received all your life. In a sense, Aristotle's principles have become a "habit" for us even though we might never have read him.
Conclusion--The Doctrine of the Mean
Now that we know what the goal of life is for people, and what we need to do to get there (practice virtue), we still need to know what the virtues are and when and how to practice them. And, since Aristotle realizes that ethical action is connected to the individual person and the situation, he doesn't lay down "rules" or report on "rules" that cut across the board in every case. His brilliant suggestion is that virtuous action is undertaken as a means between two extremes. That is, the virtue sought is somewhere between two vices to be avoided. Perhaps this can be explained best through a chart, which I will provide in the next essay.
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