Liberty and Nature: An Aristotelian Defense of Liberal Order.

Deely, John

La Salle: Open Court, 1991. xvi + 268 pp. Cloth, $49.95; paper $24.95 - This book concludes with the suggestion that Aristotelian tradition "is perhaps the only remaining unexplored source for providing liberalism with the kind of secure moral footing it desperately needs" (p. 225). The suggestion seems preposterous on the face of it. In this case, however, the suggestion is a summation of all the considerable analysis that has gone before. The entire book consists of a demonstration of the fact that the quintessentially modern and liberal notion of fundamental rights for individuals ultimately requires the quintessentially ancient Aristotelian notion of nature.

This remarkable project is carried out by paying systematic attention to a few paradoxes which have confounded most other thinkers devoted to the ethical writings of Aristotle, including the basic paradox that the virtues and goods of human flourishing only exist actually when they achieve a determinate form resulting from the unique circumstances and choices of the individual - whereas in that determinate form they are not universally good (or are only analogously so, just as they are instances only analogously). Universal moral goods only exist abstractly. Concrete moral goods, by contrast, exist only through the mediation of individual choices and circumstances: "Goodness is neither an intrinsic feature of things or actions, nor is it simply a subjective phenomenon of consciousness. Rather, goodness is an aspect of reality in relation to the needs or ends of a living thing" (p. 57, emphasis added; see also pp. 89, 91, 117).

The authors' fundamental move is to render thematic in all its implications, as Aristotle did not, the fact that moral perfection of the individual cannot be achieved otherwise than by the individual living according to the consequences of personal choices. On this fact rests the irreducible requirement for a sphere of strict autonomy to guarantee the possibility of moral perfection. Hence the first requirement of social political life as a human life form is the preservation of the minimalist sphere of individual autonomy in the absence of which human flourishing as a moral achievement is precluded. The social-political condition that must be fulfilled before, and as the basis of, any other, is the protection of the mature human being's self-directedness.

By facing squarely - and, perhaps, for the first time effectively - the question of the relationship of morality and legality, Rasmussen and Den Uyl are able to resolve the thorny problem of "the common good" as the basis upon which their synthesis of tradition and modernity, "Lockean and Aristotelian conceptions," in the sphere of political theory rests (p. 142).

The common good, at its core, is a procedural notion and not a substantive one: where self-directedness is not protected, the condition for the possibility of human flourishing as a moral achievement is at risk. Thus individual rights provide moral guidance for society's creation of a morally legitimate constitutional and legal order, not for the conduct of individuals. Instead of seeing the partial divergence of legality and morality as a regrettable deficiency in the wisdom or virtue (or both) of legislators, Rasmussen and Den Uyl show that the relationship between law and ethics is, as a necessary consequence of what the protection of self-directedness requires, neither direct nor isomorphic.

Thus, the requirements of morality are inherently richer than, and may conflict with, the requirements of legality (see for example pp. 146-9). Only what is moral can be legislated, but much that is moral cannot be, precisely because legislation is required before all to protect the liberty upon which morality ultimately depends. Abusus non tollit usum: not all abuses of liberty are subject to legal correction, nor, in the nature of the case, can they be.

The "set of compossible moral territories," the protection of which is i,he primary purpose of the legal system, implies as a necessary consequence a partial divergence between the legal and the ethical or moral, and has the further consequence of ensuring that pluralism is an essential part of the common good, for a differential weighting or valuing of goods by free individuals is as certain as their differences. Rasmussen's and Den Uyl's procedural notion of the common good as entailing pluralism enables them to introduce a procedural notion of the social contract which makes sense of the basic foundation of government in the "consent of the governed" - something that has generally eluded Aristotelian thinkers such as Adler, Veatch, and Simon, to mention a few both recent and prominent.

Justice itself is affected by the establishment of a morally legitimate constitutional order. What is just or unjust in human affairs is only partially "given in advance" of the determinate social order. Certain aspects of justice will only come into play after historical rights have been defined. I would suggest, for example, that Rawl's celebrated Theory of Justice needs to be thoroughly rewritten in the light of Rasmussen's and Den Uyl's work. They provide a seminal treatment, indicating the direction in which the future of sound social and political philosophy must surely lie.