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Published online by Cambridge University Press: 24 April 2012
In his recent book on Strauss, Steven B. Smith has called attention to “a curiously neglected passage from the very center of Natural Right and History,” a passage in which Strauss “acknowledges the way political decisions grow out of concrete situations and cannot be deduced from a priori rules.” The passage reads:
Let us call an extreme situation a situation in which the very existence or independence of a society is at stake. In extreme situations there may be conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law. A decent society will not go to war except for a just cause. But what it will do during a war will depend to a certain extent on what the enemy—possibly an absolutely unscrupulous and savage enemy—forces it to do. There are no limits which can be defined in advance, there are no assignable limits to what might become just reprisals.
1 Strauss, Leo, The City and Man (Chicago: University of Chicago Press, 1964), 55 (hereafter CM)Google Scholar.
2 Smith, Steven B., Reading Leo Strauss: Politics, Philosophy, Judaism (Chicago: University of Chicago Press, 2006), 198CrossRefGoogle Scholar.
3 Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953), 160 (hereafter NRH)Google Scholar; Smith's emphasis.
4 Paragraph breaks, but not pages, are within a modern author's control, and Strauss certainly counted his paragraphs, here and elsewhere (see The City and Man).
5 I owe this observation to Michael Zuckert.
6 Strauss, NRH, 153–56.
7 Strauss, NRH, 163.
8 Strauss, NRH, 157.
9 See Section III, below, for a reconstruction of the argument.
10 Insofar as the commentary on Strauss pays any special attention to Strauss's reading of Aristotle, the conclusion reached tends to be the one voiced by Stanley Rosen: “Strauss evidently leans upon Aristotle's authority in one set of texts and silently rejects him as un-Socratic in others” (“Leo Strauss and the Possibility of Philosophy,” Review of Metaphysics 53, no. 3 [2000]: 559Google Scholar).
11 David Lachterman notes this fact, but says of it only that the Aristotelian natural right teaching is “an intermezzo” between the Socratic-Platonic teaching and the natural law teaching of Aquinas, Thomas (“Strauss Read from France,” Review of Politics 53, no. 1 [1991]: 234)Google Scholar. Strauss cites Aristotle five times in his discussion of Socratic-Platonic natural right, and twenty-seven times in his discussion of classic natural right preceding the distinction among its types.
12 Strauss, Leo, “The Law of Reason in the Kuzari,” in Persecution and the Art of Writing (Chicago: University of Chicago Press, 1952), 95–141 (hereafter PAW)Google Scholar; cited by Strauss, NRH, 158n32.
13 Drury, Shadia B., “Leo Strauss's Classic Natural Right Teaching,” Political Theory 15, no. 3 (1987): 299–315CrossRefGoogle Scholar, esp. 307–9.
14 Drury, “Leo Strauss's Classic Natural Right Teaching,” 307.
15 Ibid.
16 See, e.g., Zuckert, Catherine H. and Zuckert, Michael, The Truth about Leo Strauss: Political Philosophy and American Democracy (Chicago: University of Chicago Press, 2006), 184–93CrossRefGoogle Scholar.
17 Drury finds Strauss's “Aristotelian” position to be worse than Machiavellian. “Strauss is not saying that in extreme situations the preservation of the state requires that we suspend the rules of natural justice and in so doing act unjustly. This is the view of Machiavelli. Strauss's claim that the ‘exceptions are as just as the rules’ … allows us to do injustice with a clear conscience” (“Leo Strauss's Classic Natural Right Teaching,” 308).
18 Smith, Reading Leo Strauss, 199.
19 Strauss's position, in this regard, bears comparison with contemporary moral particularism. See Dancy, Jonathan, Ethics Without Principles (Oxford: Oxford University Press, 2004)CrossRefGoogle Scholar; and Hooker, Brad and Little, Margaret Olivia, eds., Moral Particularism (Oxford: Oxford University Press, 2000)Google Scholar.
20 The single best treatment of this last issue may be found in Richard Bodéüs's essay “The Natural Foundations of Right and Aristotelian Philosophy,” trans. Enns, Kent, in Action and Contemplation: Studies in the Moral and Political Thought of Aristotle, ed. Bartlett, Robert C. and Collins, Susan D. (Albany: State University of New York Press, 1999), 69–103Google Scholar. Bodéüs had earlier presented a preliminary form of his interpretation as a critical counterpoint to Strauss's understanding of Aristotle (“Deux propositions aristotéliciennes sur le droit naturel chez les continentaux d'Amérique,” Revue de Métaphysique et de Morale 3 [1989]: 369–89Google Scholar), but the more recent essay explicitly revises the conclusions of the earlier one, and whatever disagreement remains between Strauss and Bodéüs is for sharper eyes than mine to spy out.
21 Strauss, NRH, 162.
22 Regardless of whether Strauss's argument for the mutability of natural right is Aristotelian, I will treat it as Strauss's own view. I do so because it makes my own argument more challenging. Faced with Drury's charge, a defender of Strauss might deny that Strauss endorses the Aristotelian position on natural right. This has a certain plausibility, since Strauss generally seems to prefer Plato to Aristotle. My strategy is different. My argument is not that Strauss is an Aristotelian, but that even if Strauss is an Aristotelian, this is no basis for accusing him of exceptionalism. This brings me closer to Smith, who also treats what Strauss says in this section as articulating his own views. But Smith, like Drury, thinks exceptionalism follows from the Aristotelian doctrine; he disagrees with Drury only insofar as he does not think there is anything problematic about Strauss's exceptionalism. I think he's wrong to see exceptionalism here, and also wrong to think exceptionalism unproblematic.
23 See Smith, Steven B., “Philosophy as a Way of Life: The Case of Leo Strauss,” Review of Politics 71, no. 1 (2009): 37–53CrossRefGoogle Scholar.
24 The implicit reference points are in Nicomachean Ethics 1134b18 and 1134b29–30, respectively.
25 Strauss, NRH, 156.
26 “Natural right would act as dynamite for civil society” (Strauss, NRH, 153).
27 Strauss, NRH, 152–53.
28 Strauss, NRH, 156.
29 Strauss, NRH, 159.
30 Strauss, NRH, 159; see also CM, 26–27.
31 Strauss, NRH, 159. This line of argument has also been advanced against contemporary moral particularism, for example by Väyrynen, Pekka, “Moral Generalism: Enjoy in Moderation,” Ethics 116 (2006): 707–41CrossRefGoogle Scholar.
32 Strauss, NRH, 157.
33 Strauss, NRH, 159.
34 Strauss, NRH, 161. The highest-order principles are incommensurable, since they cannot be traded off against one another in a rationally explicable or consistent manner. Of course one might refer to a name in which these principles are comprehended—justice, right, the common good—but this will be a name only, not a principle, in the sense that it will not provide any guidance or rule for action. See Strauss, NRH, 160–61.
35 Strauss, NRH, 161.
36 Strauss, CM, 26–27, and NRH, 127, 145.
37 Strauss, NRH, 162.
38 Ibid.
39 Strauss, NRH, 162–63.
40 Strauss, NRH, 122.
41 Strauss, NRH, 156
42 Strauss, PAW, 105n29.
43 Strauss, NRH, 161.
44 Strauss, NRH, 160–61.
45 Hence Strauss's comment in NRH, 161n33.
46 Strauss equates the just and the common good (see esp. NRH, 101–2, 160; CM, 16) and attributes conflicts between different conceptions of justice to different understandings of the common good (see, for instance, his footnote on the elevation of capitalist accumulation to moral respectability at NRH, 61n22). I take this as a sign of Strauss's opposition to “Kantianism” (NRH, 60n22), or the doctrine that right action is an end in itself, not for the sake of any good. That perfecting one's humanity, or pursuing virtue, would promote the common good follows from Strauss's claims that “humanity itself is sociality” (NRH, 129) and that “there must be things [i.e., thought] which are by nature common” (CM, 16).
47 Strauss's point of reference is the equity (epieikeia) attributed to the phronimos by Aristotle (Nicomachean Ethics 1137a32–1138a3).
48 Strauss, NRH, 146. Strauss at times suggests that any code of law would be external to natural right because, as codified, it would not be natural (for example, see PAW, 127n103a). I am pressing a separate issue, that any code of law would be external to natural right because, as law, it could not be known to be right.
49 Strauss, NRH, 160.
50 Strauss, PAW, 121–22.
51 Nicomachean Ethics 1180a21–22; Strauss cites the same text again later in the Kuzari essay, in support of the claim that “all laws which deserve that name are the work of reason” (PAW, 133n121, reading “21f” for “12f”).
52 Strauss, PAW, 119–26; CM, 22.
53 Kochin, Michael S., “Morality, Nature, and Esotericism in Leo Strauss's Persecution and the Art of Writing,” Review of Politics 64, no. 2 (2002): 265CrossRefGoogle Scholar.
54 Kochin, “Morality, Nature, and Esotericism,” 280.
55 Strauss, PAW, 116.
56 Note that the governmental and educational functions attributed by common sense to moral laws do not require any identification of the few and the many as classes of people. All transgressors are treated the same, whether they were right to transgress or not, as are all children.
57 These two questions are separable, at least for the purposes of analysis. I will be concerned with the question of the necessity of moral laws, leaving aside the question whether morality must be based in revealed religion.
58 This is the theological-political problem that Strauss claimed guided his inquiries throughout his adult life. There has been much scholarship lately devoted to this aspect of Strauss's writings. See, especially, Batnitzky, Leora, Leo Strauss and Emmanuel Levinas: Philosophy and the Politics of Revelation (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar; Meier, Heinrich, Leo Strauss and the Theological-Political Problem, trans. Brainard, Marcus (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar; and Tanguay, Daniel, Leo Strauss: An Intellectual Biography, trans. Nadon, Christopher (New Haven: Yale University Press, 2007)Google Scholar.
59 Strauss, PAW, 136.
60 That it is the texts of Jewish and Islamic Aristotelians that reveals this is certainly significant. As Strauss writes in his introduction to Persecution and the Art of Writing, “The status of philosophy in the Islamic-Jewish world resembled … its status in classical Greece” (PAW, 21). To turn the matter around the other way, one could say that Athens contained both Athens and Jerusalem. It is the advent and spread of Christianity that overturned the world of classical philosophy, not revelation as such, which is coeval with humanity. Beyond or underneath the world made by Christianity, this suggests, is a world in which Aristotle is also a Platonist, Plato an Aristotelian, and every falāsifa both. I will not pretend to have demonstrated any such thesis, which would go far beyond my purview and knowledge, but it is an implication of my argument here that the text of Natural Right and History gives us no good grounds for positing an incompatibility between the Platonic and the Aristotelian natural right teachings.
61 Strauss, PAW, 136n129.
62 Strauss, PAW, 136.
63 Strauss, PAW, 137.
64 Strauss, PAW, 126; compare also CM, 115.
65 Strauss, NRH, 84, 92.
66 Strauss, CM, 27.
67 Unless, of course, one thinks skepticism about the law is itself the definition of evil.
68 Strauss, Leo, Jewish Philosophy and the Crisis of Modernity: Essays and Lectures in Modern Jewish Thought, ed. Green, Kenneth Hart (Albany: State University of New York Press, 1997), 464–65Google Scholar.
69 Strauss, CM, 26–27.
70 Obviously, this conclusion presupposes that moral laws are essential to every community. We will see below just how far this is true.
71 Strauss, PAW, 136.
72 Hence, Laurence Lampert is on to something when he argues that Strauss's rediscovery of exotericism is identical with the rediscovery of the possibility of philosophy (“Strauss's Recovery of Esotericism,” in The Cambridge Companion to Leo Strauss, ed. Smith, Steven B. [Cambridge: Cambridge University Press, 2009], 63–92CrossRefGoogle Scholar).
73 Strauss, PAW, 138.
74 Strauss, PAW, 139.
75 Ibid.
76 Strauss, PAW, 140; see also PAW, 126–35 and NRH, 105–6.
77 Strauss, CM, 48.
78 Strauss, NRH, 157.
79 Ibid.
80 E.g., Strauss, CM, 19–20; NRH, 91.
81 Strauss, NRH, 136.
82 Strauss, CM, 48; Strauss's “regime” is supposed to translate Aristotle's politeia. Geoffrey Waite has suggested parallels between Strauss's regime and Gramsci's hegemony (“On Esotericism: Strauss and/or Cassirer at Davos,” Political Theory 26, no. 5 [1998]: 639n31Google Scholar).
83 And yet every regime, just by virtue of its form, asks people to yoke their judgment to it. This line of Strauss's thinking emerges in his opposition to modern “natural public law,” or “doctrinairism,” the effort to delineate “a universally valid solution to the political problem,” in the form of institutional arrangements that would be legitimate in, and applicable to, every possible situation (Strauss, NRH, 190–94). This is perhaps the major fault line between Strauss and other twentieth-century advocates of liberalism. Strauss's endorsement of a liberal and democratic regime is always local and prudential, never moral.
84 Strauss, NRH, 136.
85 Strauss, CM, 48; and see Virno, Paolo, Multitude between Innovation and Negation, trans. Bertoletti, Isabella, Cascaito, James, and Casson, Andrea (Los Angeles: Semiotext(e), 2008), 25Google Scholar.
86 An appreciation of this point seems to me to be missing from Galston's, William “Leo Strauss's Qualified Embrace of Liberal Democracy,” in The Cambridge Companion to Strauss, 193–214Google Scholar. The liberal legal system can never have for its content a comprehensive set of moral laws, but, for precisely the same reason, it need not replace a society's intact moral laws. This leaves aside the issue of the extent to which any legal system relies, tacitly or explicitly, on intact moral laws as its background condition.
87 It does imply a disagreement with a certain liberal understanding of the rule of law as entailing strict state neutrality regarding various conceptions of the good (as, for instance, in Hayek and Rawls); the legal system might be more or less neutral between competing conceptions of the good, but the regime is precisely society's dominant conception of the good, and the state must partake of this regime.
88 Strauss elsewhere argues against Voegelin's defense of the legitimacy of extraconstitutional rule, pointing out that even though his own understanding of natural right entails the possibility of situations in which the common good is served by extraconstitutional rule, this possibility ought not be enshrined in a defense of Caesarism (Strauss, Leo, On Tyranny, rev. ed., ed. Gourevitch, Victor and Roth, Michael S. [Chicago: University of Chicago Press, 2000], 178–80Google Scholar). This argument has the same form as Strauss's defense of the regime, but different premises, insofar as the regime differs from the constitution (Strauss, NRH, 136).
89 Smith, Reading Leo Strauss, 199.
90 Strauss, NRH, 144.
91 Strauss, NRH, 139.
92 Strauss, PAW, 117.
93 Strauss, PAW, 116–17.
94 See Strauss, PAW, 116, 121n77, and 137 (including n133).
95 Strauss, PAW, 137.
96 Lampert, “Strauss's Recovery of Esotericism,” 64.
97 Smith, “Philosophy as a Way of Life,” 47–48.
98 Consider, for example, Strauss, PAW, 123–26.
