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Volume 55
Article 3
Issue 2 Spring 1972
Repository Citation
Luis Kutner, Legal Philosophers: A Trilogy on Great Philosophers and the Law: Plato and Aristotle: Precursors of the Human Rights of World
Habeas Corpus, 55 Marq. L. Rev. 255 (1972).
Available at: http://scholarship.law.marquette.edu/mulr/vol55/iss2/3
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COMMENTARY: A TRILOGY ON GREAT PHI-
LOSOPHERS IN THE LAW
Luis KUTNER*
* LL.B., J.D.; Member, Illinois Bar, Indiana Bar; Lecturer in Law, University of Chi-
cago; Former Associate Professor of Law, Yale University; Congressional Nominee, 1972
Nobel Peace Prize; Chairman, World Habeas Corpus Committee, World Peace Through
Law Center; President, Commission for International Due Process of Law; Former Consul,
Ecuador; Former Consul General, Guatamala; Former Special Counsel to the Attorney
General of Illinois; Author of numerous law journal articles and several books, including
World Habeas Corpus and I, the Lawyer.
The Assistance of B. Alan Burgwald, M.A., is acknowledged.
1. E. BARKER, THE POLITICAL THOUGHT OF PLATO AND ARISTOTLE 7 (1959)
[hereinafter cited as BAKER].
2. L. KUTNER, WORLD HABEAS CORPUS 20 (1962) [hereinafter cited as KUTNER].
MARQUETTE LAW REVIEW [Vol. 55
3. BARKER at 7.
4. H. ROMMEN, THE NATURAL LAW 18-19 (1959) [hereinafter cited as ROMMEN].
5. R. POUND, JUSTICE ACCORDING To LAW 9 (1958) [hereinafter cited as POUND].
6. M. HAMBURGER, MORALS AND THE LAW: THE GROWTH OF ARISTOTLE'S LEGAL
THEORY 85, 89 (1951) [hereinafter cited as HAMBURGER].
7. J. ZANE, THE STORY OF LAW 2 (1927).
8. ROMMEN at 13.
9. Oppenheim, Metaethics of NaturalLaw, in LAW AND PHILOSOPHY 243 (S. Hook ed.
1964).
10. Stern, Either-Or or Neither-Nor?, in LAW AND PHILOSOPHY 249-50 (S. Hook ed.
1964).
I1. J. ZANE, supra note 7, at 3.
12. HAMBURGER at 169.
13. ROMMEN at 18-19.
COMMENTARY
existed only between those who were free and equal before the
state, 4 for equality was to be found among those who shared their
life in community' 5-and justice in the state demanded a unanimity
in which mutual rights would not be violated.16
Plato, however, neither predicated his concept of justice upon
the idea of rights nor viewed the function of justice as that of
maintaining such rights.1 7 Rather, in The Republic, he attempted
to redefine justice in terms of an educative polity in pursuit of
harmony, for justice to him included moral truth in the individual
and harmony in social life." It was in justice that Plato saw the
harmonizing of the soul which made it one with virtue generally, 9
this supreme virtue then harmonizing all other virtues. 2 To Plato,
justice was a quality of the state. Making the distinction between
that which was legally and that which was naturally just, he con-
tended that there could be no justice in the state when laws were
passed for the good of a particular class instead of the common-
weal.22 In this way, justice was likened to the body politic; just as
a healthy body required that each organ function properly to such
a degree that it reinforced, rather than hindered, the function of
all the other organs, so, too, a just state required the general har-
mony of all the society.21 This justice of the state Plato identified
with the individual, since it was comprised of the individuals com-
2
posing it. Hence, each individual showed justice. 1
Despite the widespread familiarity with Plato's Republic, it was
Aristotle's discussion of justice that served as a model for all future
discourses on the subject. 21 Like Plato, Aristotle distinguished that
which was naturally just from that which was legally just 2 -the
former being in accord with nature, common to all regardless of
source, 27 with the same force everywhere, 2s and the latter being
14. POUND at 9.
15. HAMBURGER at 58.
16. POUND at 9.
17. BARKER at 118.
18. J. SHKLAR, LEGALISM 113 (1964).
19. B. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 38 (1927).
20. POUND at 3.
21. BARKER at 118.
22. ROMMEN at 13-14.
23. M. COHEN, REASON AND LAW 92 (1950).
24. BARKER at 118.
25. J. SHKLAR, supra note 18, at 113.
26. ROMMEN at 17.
27. C. HAINES, REVIVAL OF NATURAL LAW CONCEPTS 6-9, 23 (1965).
28. W. SEAGLE, THE HISTORY OF LAW 370 (1946).
MARQUETTE LAW REVIEW [Vol. 55