Lecture 17: Arguing Affirmative Action

ARGUING AFFIRMATIVE ACTION
Sandel describes the 1996 court case of a white woman named Cheryl Hopwood who was denied admission to a Texas law school, even though she had higher grades and test scores than some of the minority applicants who were admitted. Hopwood took her case to court, arguing the school’s affirmative action program violated her rights. Students discuss the pros and cons of affirmative action. Should we try to correct for inequality in educational backgrounds by taking race into consideration? Should we compensate for historical injustices such as slavery and segregation? Is the argument in favor of promoting diversity a valid one? How does it size up against the argument that a student’s efforts and achievements should carry more weight than factors that are out of his or her control and therefore arbitrary? When a university’s stated mission is to increase diversity, is it a violation of rights to deny a white person admission?

Ethical Dilemma: Affirmative Action

Should groups that have traditionally faced discrimination be given special consideration when applying to university or employment?

Readings and Discussion Guides

A short overview of the reading; Many rights-oriented philosophers believe that distributive justice is not a matter of rewarding virtue or moral desert, and that the measure of a just society is not whether it produces virtuous citizens, but whether it provides a fair framework of rights within which individuals can pursue their own values. Aristotle (384-322 BC) rejects both of these beliefs. He believes that justice consists in giving people what they deserve, and that a just society is one that enables human beings to realize their highest nature and to live the good life. For Aristotle, political activity is not merely a way to pursue our interests, but an essential part of the good life.


Aristotle, The Politics

Translated by Benjamin Jowett

BOOK ONE
Part I

Every state is a community of some kind, and every community is established with a view to some good; for mankind always act in order to obtain that which they think good. But, if all communities aim at some good, the state or political community, which is the highest of all, and which embraces all the rest, aims at good in a greater degree than any other, and at the highest good.

Some people think that the qualifications of a statesman, king, householder, and master are the same, and that they differ, not in kind, but only in the number of their subjects. For example, the ruler over a few is called a master; over more, the manager of a household; over a still larger number, a statesman or king, as if there were no difference between a great household and a small state. The distinction which is made between the king and the statesman is as follows: When the government is personal, the ruler is a king; when, according to the rules of the political science, the citizens rule and are ruled in turn, then he is called a statesman.

But all this is a mistake; for governments differ in kind, as will be evident to any one who considers the matter according to the method which has hitherto guided us. As in other departments of science, so in politics, the compound should always be resolved into the simple elements or least parts of the whole. We must therefore look at the elements of which the state is composed, in order that we may see in what the different kinds of rule differ from one another, and whether any scientific result can be attained about each one of them.

Part II

He who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them. In the first place there must be a union of those who cannot exist without each other; namely, of male and female, that the race may continue (and this is a union which is formed, not of deliberate purpose, but because, in common with other animals and with plants, mankind have a natural desire to leave behind them an image of themselves), and of natural ruler and subject, that both may be preserved. For that which can foresee by the exercise of mind is by nature intended to be lord and master, and that which can with its body give effect to such foresight is a subject, and by nature a slave; hence master and slave have the same interest. Now nature has distinguished between the female and the slave. For she is not niggardly, like the smith who fashions the Delphian knife for many uses; she makes each thing for a single use, and every instrument is best made when intended for one and not for many uses. But among barbarians no distinction is made between women and slaves, because there is no natural ruler among them: they are a community of slaves, male and female. Wherefore the poets say,

“It is meet that Hellenes should rule over barbarians;

as if they thought that the barbarian and the slave were by nature one.

Out of these two relationships between man and woman, master and slave, the first thing to arise is the family, and Hesiod is right when he says,

“First house and wife and an ox for the plough,

for the ox is the poor man’s slave. The family is the association established by nature for the supply of men’s everyday wants, and the members of it are called by Charondas ‘companions of the cupboard,’ and by Epimenides the Cretan, ‘companions of the manger.’ But when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village. And the most natural form of the village appears to be that of a colony from the family, composed of the children and grandchildren, who are said to be suckled ‘with the same milk.’ And this is the reason why Hellenic states were originally governed by kings; because the Hellenes were under royal rule before they came together, as the barbarians still are. Every family is ruled by the eldest, and therefore in the colonies of the family the kingly form of government prevailed because they were of the same blood. As Homer says:

“Each one gives law to his children and to his wives.

For they lived dispersedly, as was the manner in ancient times. Wherefore men say that the Gods have a king, because they themselves either are or were in ancient times under the rule of a king. For they imagine, not only the forms of the Gods, but their ways of life to be like their own.

When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life. And therefore, if the earlier forms of society are natural, so is the state, for it is the end of them, and the nature of a thing is its end. For what each thing is when fully developed, we call its nature, whether we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thing is the best, and to be self-sufficing is the end and the best.

Hence it is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity; he is like the

“Tribeless, lawless, hearthless one,

whom Homer denounces- the natural outcast is forthwith a lover of war; he may be compared to an isolated piece at draughts.

Now, that man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech. And whereas mere voice is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state.

Further, the state is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part; for example, if the whole body be destroyed, there will be no foot or hand, except in an equivocal sense, as we might speak of a stone hand; for when destroyed the hand will be no better than that. But things are defined by their working and power; and we ought not to say that they are the same when they no longer have their proper quality, but only that they have the same name. The proof that the state is a creation of nature and prior to the individual is that the individual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the whole. But he who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god: he is no part of a state. A social instinct is implanted in all men by nature, and yet he who first founded the state was the greatest of benefactors. For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all; since armed injustice is the more dangerous, and he is equipped at birth with arms, meant to be used by intelligence and virtue, which he may use for the worst ends. Wherefore, if he have not virtue, he is the most unholy and the most savage of animals, and the most full of lust and gluttony. But justice is the bond of men in states, for the administration of justice, which is the determination of what is just, is the principle of order in political society.

Part III

Seeing then that the state is made up of households, before speaking of the state we must speak of the management of the household. The parts of household management correspond to the persons who compose the household, and a complete household consists of slaves and freemen. Now we should begin by examining everything in its fewest possible elements; and the first and fewest possible parts of a family are master and slave, husband and wife, father and children. We have therefore to consider what each of these three relations is and ought to be: I mean the relation of master and servant, the marriage relation (the conjunction of man and wife has no name of its own), and thirdly, the procreative relation (this also has no proper name). And there is another element of a household, the so-called art of getting wealth, which, according to some, is identical with household management, according to others, a principal part of it; the nature of this art will also have to be considered by us.

Let us first speak of master and slave, looking to the needs of practical life and also seeking to attain some better theory of their relation than exists at present. For some are of opinion that the rule of a master is a science, and that the management of a household, and the mastership of slaves, and the political and royal rule, as I was saying at the outset, are all the same. Others affirm that the rule of a master over slaves is contrary to nature, and that the distinction between slave and freeman exists by law only, and not by nature; and being an interference with nature is therefore unjust.

Part IV

Property is a part of the household, and the art of acquiring property is a part of the art of managing the household; for no man can live well, or indeed live at all, unless he be provided with necessaries. And as in the arts which have a definite sphere the workers must have their own proper instruments for the accomplishment of their work, so it is in the management of a household. Now instruments are of various sorts; some are living, others lifeless; in the rudder, the pilot of a ship has a lifeless, in the look-out man, a living instrument; for in the arts the servant is a kind of instrument. Thus, too, a possession is an instrument for maintaining life. And so, in the arrangement of the family, a slave is a living possession, and property a number of such instruments; and the servant is himself an instrument which takes precedence of all other instruments. For if every instrument could accomplish its own work, obeying or anticipating the will of others, like the statues of Daedalus, or the tripods of Hephaestus, which, says the poet,

“of their own accord entered the assembly of the Gods; ”

if, in like manner, the shuttle would weave and the plectrum touch the lyre without a hand to guide them, chief workmen would not want servants, nor masters slaves. Here, however, another distinction must be drawn; the instruments commonly so called are instruments of production, whilst a possession is an instrument of action. The shuttle, for example, is not only of use; but something else is made by it, whereas of a garment or of a bed there is only the use. Further, as production and action are different in kind, and both require instruments, the instruments which they employ must likewise differ in kind. But life is action and not production, and therefore the slave is the minister of action. Again, a possession is spoken of as a part is spoken of; for the part is not only a part of something else, but wholly belongs to it; and this is also true of a possession. The master is only the master of the slave; he does not belong to him, whereas the slave is not only the slave of his master, but wholly belongs to him. Hence we see what is the nature and office of a slave; he who is by nature not his own but another’s man, is by nature a slave; and he may be said to be another’s man who, being a human being, is also a possession. And a possession may be defined as an instrument of action, separable from the possessor.

Part V

But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature?

There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.

And there are many kinds both of rulers and subjects (and that rule is the better which is exercised over better subjects- for example, to rule over men is better than to rule over wild beasts; for the work is better which is executed by better workmen, and where one man rules and another is ruled, they may be said to have a work); for in all things which form a composite whole and which are made up of parts, whether continuous or discrete, a distinction between the ruling and the subject element comes to fight. Such a duality exists in living creatures, but not in them only; it originates in the constitution of the universe; even in things which have no life there is a ruling principle, as in a musical mode. But we are wandering from the subject. We will therefore restrict ourselves to the living creature, which, in the first place, consists of soul and body: and of these two, the one is by nature the ruler, and the other the subject. But then we must look for the intentions of nature in things which retain their nature, and not in things which are corrupted. And therefore we must study the man who is in the most perfect state both of body and soul, for in him we shall see the true relation of the two; although in bad or corrupted natures the body will often appear to rule over the soul, because they are in an evil and unnatural condition. At all events we may firstly observe in living creatures both a despotical and a constitutional rule; for the soul rules the body with a despotical rule, whereas the intellect rules the appetites with a constitutional and royal rule. And it is clear that the rule of the soul over the body, and of the mind and the rational element over the passionate, is natural and expedient; whereas the equality of the two or the rule of the inferior is always hurtful. The same holds good of animals in relation to men; for tame animals have a better nature than wild, and all tame animals are better off when they are ruled by man; for then they are preserved. Again, the male is by nature superior, and the female inferior; and the one rules, and the other is ruled; this principle, of necessity, extends to all mankind.

Where then there is such a difference as that between soul and body, or between men and animals (as in the case of those whose business is to use their body, and who can do nothing better), the lower sort are by nature slaves, and it is better for them as for all inferiors that they should be under the rule of a master. For he who can be, and therefore is, another’s and he who participates in rational principle enough to apprehend, but not to have, such a principle, is a slave by nature. Whereas the lower animals cannot even apprehend a principle; they obey their instincts. And indeed the use made of slaves and of tame animals is not very different; for both with their bodies minister to the needs of life. Nature would like to distinguish between the bodies of freemen and slaves, making the one strong for servile labor, the other upright, and although useless for such services, useful for political life in the arts both of war and peace. But the opposite often happens- that some have the souls and others have the bodies of freemen. And doubtless if men differed from one another in the mere forms of their bodies as much as the statues of the Gods do from men, all would acknowledge that the inferior class should be slaves of the superior. And if this is true of the body, how much more just that a similar distinction should exist in the soul? but the beauty of the body is seen, whereas the beauty of the soul is not seen. It is clear, then, that some men are by nature free, and others slaves, and that for these latter slavery is both expedient and right.

Part VI

But that those who take the opposite view have in a certain way right on their side, may be easily seen. For the words slavery and slave are used in two senses. There is a slave or slavery by law as well as by nature. The law of which I speak is a sort of convention- the law by which whatever is taken in war is supposed to belong to the victors. But this right many jurists impeach, as they would an orator who brought forward an unconstitutional measure: they detest the notion that, because one man has the power of doing violence and is superior in brute strength, another shall be his slave and subject. Even among philosophers there is a difference of opinion. The origin of the dispute, and what makes the views invade each other’s territory, is as follows: in some sense virtue, when furnished with means, has actually the greatest power of exercising force; and as superior power is only found where there is superior excellence of some kind, power seems to imply virtue, and the dispute to be simply one about justice (for it is due to one party identifying justice with goodwill while the other identifies it with the mere rule of the stronger). If these views are thus set out separately, the other views have no force or plausibility against the view that the superior in virtue ought to rule, or be master. Others, clinging, as they think, simply to a principle of justice (for law and custom are a sort of justice), assume that slavery in accordance with the custom of war is justified by law, but at the same moment they deny this. For what if the cause of the war be unjust? And again, no one would ever say he is a slave who is unworthy to be a slave. Were this the case, men of the highest rank would be slaves and the children of slaves if they or their parents chance to have been taken captive and sold. Wherefore Hellenes do not like to call Hellenes slaves, but confine the term to barbarians. Yet, in using this language, they really mean the natural slave of whom we spoke at first; for it must be admitted that some are slaves everywhere, others nowhere. The same principle applies to nobility. Hellenes regard themselves as noble everywhere, and not only in their own country, but they deem the barbarians noble only when at home, thereby implying that there are two sorts of nobility and freedom, the one absolute, the other relative. The Helen of Theodectes says:

“Who would presume to call me servant who am on both sides sprung from the stem of the Gods?

What does this mean but that they distinguish freedom and slavery, noble and humble birth, by the two principles of good and evil? They think that as men and animals beget men and animals, so from good men a good man springs. But this is what nature, though she may intend it, cannot always accomplish.

We see then that there is some foundation for this difference of opinion, and that all are not either slaves by nature or freemen by nature, and also that there is in some cases a marked distinction between the two classes, rendering it expedient and right for the one to be slaves and the others to be masters: the one practicing obedience, the others exercising the authority and lordship which nature intended them to have. The abuse of this authority is injurious to both; for the interests of part and whole, of body and soul, are the same, and the slave is a part of the master, a living but separated part of his bodily frame. Hence, where the relation of master and slave between them is natural they are friends and have a common interest, but where it rests merely on law and force the reverse is true.

Part VII

The previous remarks are quite enough to show that the rule of a master is not a constitutional rule, and that all the different kinds of rule are not, as some affirm, the same with each other. For there is one rule exercised over subjects who are by nature free, another over subjects who are by nature slaves. The rule of a household is a monarchy, for every house is under one head: whereas constitutional rule is a government of freemen and equals. The master is not called a master because he has science, but because he is of a certain character, and the same remark applies to the slave and the freeman. Still there may be a science for the master and science for the slave. The science of the slave would be such as the man of Syracuse taught, who made money by instructing slaves in their ordinary duties. And such a knowledge may be carried further, so as to include cookery and similar menial arts. For some duties are of the more necessary, others of the more honorable sort; as the proverb says, ‘slave before slave, master before master.’ But all such branches of knowledge are servile. There is likewise a science of the master, which teaches the use of slaves; for the master as such is concerned, not with the acquisition, but with the use of them. Yet this so-called science is not anything great or wonderful; for the master need only know how to order that which the slave must know how to execute. Hence those who are in a position which places them above toil have stewards who attend to their households while they occupy themselves with philosophy or with politics. But the art of acquiring slaves, I mean of justly acquiring them, differs both from the art of the master and the art of the slave, being a species of hunting or war. Enough of the distinction between master and slave.

Part VIII

Let us now inquire into property generally, and into the art of getting wealth, in accordance with our usual method, for a slave has been shown to be a part of property. The first question is whether the art of getting wealth is the same with the art of managing a household or a part of it, or instrumental to it; and if the last, whether in the way that the art of making shuttles is instrumental to the art of weaving, or in the way that the casting of bronze is instrumental to the art of the statuary, for they are not instrumental in the same way, but the one provides tools and the other material; and by material I mean the substratum out of which any work is made; thus wool is the material of the weaver, bronze of the statuary. Now it is easy to see that the art of household management is not identical with the art of getting wealth, for the one uses the material which the other provides. For the art which uses household stores can be no other than the art of household management. There is, however, a doubt whether the art of getting wealth is a part of household management or a distinct art. If the getter of wealth has to consider whence wealth and property can be procured, but there are many sorts of property and riches, then are husbandry, and the care and provision of food in general, parts of the wealth-getting art or distinct arts? Again, there are many sorts of food, and therefore there are many kinds of lives both of animals and men; they must all have food, and the differences in their food have made differences in their ways of life. For of beasts, some are gregarious, others are solitary; they live in the way which is best adapted to sustain them, accordingly as they are carnivorous or herbivorous or omnivorous: and their habits are determined for them by nature in such a manner that they may obtain with greater facility the food of their choice. But, as different species have different tastes, the same things are not naturally pleasant to all of them; and therefore the lives of carnivorous or herbivorous animals further differ among themselves. In the lives of men too there is a great difference. The laziest are shepherds, who lead an idle life, and get their subsistence without trouble from tame animals; their flocks having to wander from place to place in search of pasture, they are compelled to follow them, cultivating a sort of living farm. Others support themselves by hunting, which is of different kinds. Some, for example, are brigands, others, who dwell near lakes or marshes or rivers or a sea in which there are fish, are fishermen, and others live by the pursuit of birds or wild beasts. The greater number obtain a living from the cultivated fruits of the soil. Such are the modes of subsistence which prevail among those whose industry springs up of itself, and whose food is not acquired by exchange and retail trade- there is the shepherd, the husbandman, the brigand, the fisherman, the hunter. Some gain a comfortable maintenance out of two employments, eking out the deficiencies of one of them by another: thus the life of a shepherd may be combined with that of a brigand, the life of a farmer with that of a hunter. Other modes of life are similarly combined in any way which the needs of men may require. Property, in the sense of a bare livelihood, seems to be given by nature herself to all, both when they are first born, and when they are grown up. For some animals bring forth, together with their offspring, so much food as will last until they are able to supply themselves; of this the vermiparous or oviparous animals are an instance; and the viviparous animals have up to a certain time a supply of food for their young in themselves, which is called milk. In like manner we may infer that, after the birth of animals, plants exist for their sake, and that the other animals exist for the sake of man, the tame for use and food, the wild, if not all at least the greater part of them, for food, and for the provision of clothing and various instruments. Now if nature makes nothing incomplete, and nothing in vain, the inference must be that she has made all animals for the sake of man. And so, in one point of view, the art of war is a natural art of acquisition, for the art of acquisition includes hunting, an art which we ought to practice against wild beasts, and against men who, though intended by nature to be governed, will not submit; for war of such a kind is naturally just.

Of the art of acquisition then there is one kind which by nature is a part of the management of a household, in so far as the art of household management must either find ready to hand, or itself provide, such things necessary to life, and useful for the community of the family or state, as can be stored. They are the elements of true riches; for the amount of property which is needed for a good life is not unlimited, although Solon in one of his poems says that

“No bound to riches has been fixed for man. ”

But there is a boundary fixed, just as there is in the other arts; for the instruments of any art are never unlimited, either in number or size, and riches may be defined as a number of instruments to be used in a household or in a state. And so we see that there is a natural art of acquisition which is practiced by managers of households and by statesmen, and what is the reason of this.

Part IX

There is another variety of the art of acquisition which is commonly and rightly called an art of wealth-getting, and has in fact suggested the notion that riches and property have no limit. Being nearly connected with the preceding, it is often identified with it. But though they are not very different, neither are they the same. The kind already described is given by nature, the other is gained by experience and art.

Let us begin our discussion of the question with the following considerations:

Of everything which we possess there are two uses: both belong to the thing as such, but not in the same manner, for one is the proper, and the other the improper or secondary use of it. For example, a shoe is used for wear, and is used for exchange; both are uses of the shoe. He who gives a shoe in exchange for money or food to him who wants one, does indeed use the shoe as a shoe, but this is not its proper or primary purpose, for a shoe is not made to be an object of barter. The same may be said of all possessions, for the art of exchange extends to all of them, and it arises at first from what is natural, from the circumstance that some have too little, others too much. Hence we may infer that retail trade is not a natural part of the art of getting wealth; had it been so, men would have ceased to exchange when they had enough. In the first community, indeed, which is the family, this art is obviously of no use, but it begins to be useful when the society increases. For the members of the family originally had all things in common; later, when the family divided into parts, the parts shared in many things, and different parts in different things, which they had to give in exchange for what they wanted, a kind of barter which is still practiced among barbarous nations who exchange with one another the necessaries of life and nothing more; giving and receiving wine, for example, in exchange for coin, and the like. This sort of barter is not part of the wealth-getting art and is not contrary to nature, but is needed for the satisfaction of men’s natural wants. The other or more complex form of exchange grew, as might have been inferred, out of the simpler. When the inhabitants of one country became more dependent on those of another, and they imported what they needed, and exported what they had too much of, money necessarily came into use. For the various necessaries of life are not easily carried about, and hence men agreed to employ in their dealings with each other something which was intrinsically useful and easily applicable to the purposes of life, for example, iron, silver, and the like. Of this the value was at first measured simply by size and weight, but in process of time they put a stamp upon it, to save the trouble of weighing and to mark the value.

When the use of coin had once been discovered, out of the barter of necessary articles arose the other art of wealth getting, namely, retail trade; which was at first probably a simple matter, but became more complicated as soon as men learned by experience whence and by what exchanges the greatest profit might be made. Originating in the use of coin, the art of getting wealth is generally thought to be chiefly concerned with it, and to be the art which produces riches and wealth; having to consider how they may be accumulated. Indeed, riches is assumed by many to be only a quantity of coin, because the arts of getting wealth and retail trade are concerned with coin. Others maintain that coined money is a mere sham, a thing not natural, but conventional only, because, if the users substitute another commodity for it, it is worthless, and because it is not useful as a means to any of the necessities of life, and, indeed, he who is rich in coin may often be in want of necessary food. But how can that be wealth of which a man may have a great abundance and yet perish with hunger, like Midas in the fable, whose insatiable prayer turned everything that was set before him into gold?

Hence men seek after a better notion of riches and of the art of getting wealth than the mere acquisition of coin, and they are right. For natural riches and the natural art of wealth-getting are a different thing; in their true form they are part of the management of a household; whereas retail trade is the art of producing wealth, not in every way, but by exchange. And it is thought to be concerned with coin; for coin is the unit of exchange and the measure or limit of it. And there is no bound to the riches which spring from this art of wealth getting. As in the art of medicine there is no limit to the pursuit of health, and as in the other arts there is no limit to the pursuit of their several ends, for they aim at accomplishing their ends to the uttermost (but of the means there is a limit, for the end is always the limit), so, too, in this art of wealth-getting there is no limit of the end, which is riches of the spurious kind, and the acquisition of wealth. But the art of wealth-getting which consists in household management, on the other hand, has a limit; the unlimited acquisition of wealth is not its business. And, therefore, in one point of view, all riches must have a limit; nevertheless, as a matter of fact, we find the opposite to be the case; for all getters of wealth increase their hoard of coin without limit. The source of the confusion is the near connection between the two kinds of wealth-getting; in either, the instrument is the same, although the use is different, and so they pass into one another; for each is a use of the same property, but with a difference: accumulation is the end in the one case, but there is a further end in the other. Hence some persons are led to believe that getting wealth is the object of household management, and the whole idea of their lives is that they ought either to increase their money without limit, or at any rate not to lose it. The origin of this disposition in men is that they are intent upon living only, and not upon living well; and, as their desires are unlimited they also desire that the means of gratifying them should be without limit. Those who do aim at a good life seek the means of obtaining bodily pleasures; and, since the enjoyment of these appears to depend on property, they are absorbed in getting wealth: and so there arises the second species of wealth-getting. For, as their enjoyment is in excess, they seek an art which produces the excess of enjoyment; and, if they are not able to supply their pleasures by the art of getting wealth, they try other arts, using in turn every faculty in a manner contrary to nature. The quality of courage, for example, is not intended to make wealth, but to inspire confidence; neither is this the aim of the general’s or of the physician’s art; but the one aims at victory and the other at health. Nevertheless, some men turn every quality or art into a means of getting wealth; this they conceive to be the end, and to the promotion of the end they think all things must contribute.

Thus, then, we have considered the art of wealth-getting which is unnecessary, and why men want it; and also the necessary art of wealth-getting, which we have seen to be different from the other, and to be a natural part of the art of managing a household, concerned with the provision of food, not, however, like the former kind, unlimited, but having a limit.

Part X

And we have found the answer to our original question, Whether the art of getting wealth is the business of the manager of a household and of the statesman or not their business? viz., that wealth is presupposed by them. For as political science does not make men, but takes them from nature and uses them, so too nature provides them with earth or sea or the like as a source of food. At this stage begins the duty of the manager of a household, who has to order the things which nature supplies; he may be compared to the weaver who has not to make but to use wool, and to know, too, what sort of wool is good and serviceable or bad and unserviceable. Were this otherwise, it would be difficult to see why the art of getting wealth is a part of the management of a household and the art of medicine not; for surely the members of a household must have health just as they must have life or any other necessary. The answer is that as from one point of view the master of the house and the ruler of the state have to consider about health, from another point of view not they but the physician; so in one way the art of household management, in another way the subordinate art, has to consider about wealth. But, strictly speaking, as I have already said, the means of life must be provided beforehand by nature; for the business of nature is to furnish food to that which is born, and the food of the offspring is always what remains over of that from which it is produced. Wherefore the art of getting wealth out of fruits and animals is always natural.

There are two sorts of wealth-getting, as I have said; one is a part of household management, the other is retail trade: the former necessary and honorable, while that which consists in exchange is justly censured; for it is unnatural, and a mode by which men gain from one another. The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

Part XI

Enough has been said about the theory of wealth-getting; we will now proceed to the practical part. The discussion of such matters is not unworthy of philosophy, but to be engaged in them practically is illiberal and irksome. The useful parts of wealth-getting are, first, the knowledge of livestock- which are most profitable, and where, and how- as, for example, what sort of horses or sheep or oxen or any other animals are most likely to give a return. A man ought to know which of these pay better than others, and which pay best in particular places, for some do better in one place and some in another. Secondly, husbandry, which may be either tillage or planting, and the keeping of bees and of fish, or fowl, or of any animals which may be useful to man. These are the divisions of the true or proper art of wealth-getting and come first. Of the other, which consists in exchange, the first and most important division is commerce (of which there are three kinds- the provision of a ship, the conveyance of goods, exposure for sale- these again differing as they are safer or more profitable), the second is usury, the third, service for hire- of this, one kind is employed in the mechanical arts, the other in unskilled and bodily labor. There is still a third sort of wealth getting intermediate between this and the first or natural mode which is partly natural, but is also concerned with exchange, viz., the industries that make their profit from the earth, and from things growing from the earth which, although they bear no fruit, are nevertheless profitable; for example, the cutting of timber and all mining. The art of mining, by which minerals are obtained, itself has many branches, for there are various kinds of things dug out of the earth. Of the several divisions of wealth-getting I now speak generally; a minute consideration of them might be useful in practice, but it would be tiresome to dwell upon them at greater length now.

Those occupations are most truly arts in which there is the least element of chance; they are the meanest in which the body is most deteriorated, the most servile in which there is the greatest use of the body, and the most illiberal in which there is the least need of excellence.

Works have been written upon these subjects by various persons; for example, by Chares the Parian, and Apollodorus the Lemnian, who have treated of Tillage and Planting, while others have treated of other branches; any one who cares for such matters may refer to their writings. It would be well also to collect the scattered stories of the ways in which individuals have succeeded in amassing a fortune; for all this is useful to persons who value the art of getting wealth. There is the anecdote of Thales the Milesian and his financial device, which involves a principle of universal application, but is attributed to him on account of his reputation for wisdom. He was reproached for his poverty, which was supposed to show that philosophy was of no use. According to the story, he knew by his skill in the stars while it was yet winter that there would be a great harvest of olives in the coming year; so, having a little money, he gave deposits for the use of all the olive-presses in Chios and Miletus, which he hired at a low price because no one bid against him. When the harvest-time came, and many were wanted all at once and of a sudden, he let them out at any rate which he pleased, and made a quantity of money. Thus he showed the world that philosophers can easily be rich if they like, but that their ambition is of another sort. He is supposed to have given a striking proof of his wisdom, but, as I was saying, his device for getting wealth is of universal application, and is nothing but the creation of a monopoly. It is an art often practiced by cities when they are want of money; they make a monopoly of provisions.

There was a man of Sicily, who, having money deposited with him, bought up an the iron from the iron mines; afterwards, when the merchants from their various markets came to buy, he was the only seller, and without much increasing the price he gained 200 per cent. Which when Dionysius heard, he told him that he might take away his money, but that he must not remain at Syracuse, for he thought that the man had discovered a way of making money which was injurious to his own interests. He made the same discovery as Thales; they both contrived to create a monopoly for themselves. And statesmen as well ought to know these things; for a state is often as much in want of money and of such devices for obtaining it as a household, or even more so; hence some public men devote themselves entirely to finance.

Part XII

Of household management we have seen that there are three parts- one is the rule of a master over slaves, which has been discussed already, another of a father, and the third of a husband. A husband and father, we saw, rules over wife and children, both free, but the rule differs, the rule over his children being a royal, over his wife a constitutional rule. For although there may be exceptions to the order of nature, the male is by nature fitter for command than the female, just as the elder and full-grown is superior to the younger and more immature. But in most constitutional states the citizens rule and are ruled by turns, for the idea of a constitutional state implies that the natures of the citizens are equal, and do not differ at all. Nevertheless, when one rules and the other is ruled we endeavor to create a difference of outward forms and names and titles of respect, which may be illustrated by the saying of Amasis about his foot-pan. The relation of the male to the female is of this kind, but there the inequality is permanent. The rule of a father over his children is royal, for he rules by virtue both of love and of the respect due to age, exercising a kind of royal power. And therefore Homer has appropriately called Zeus ‘father of Gods and men,’ because he is the king of them all. For a king is the natural superior of his subjects, but he should be of the same kin or kind with them, and such is the relation of elder and younger, of father and son.

Part XIII

Thus it is clear that household management attends more to men than to the acquisition of inanimate things, and to human excellence more than to the excellence of property which we call wealth, and to the virtue of freemen more than to the virtue of slaves. A question may indeed be raised, whether there is any excellence at all in a slave beyond and higher than merely instrumental and ministerial qualities- whether he can have the virtues of temperance, courage, justice, and the like; or whether slaves possess only bodily and ministerial qualities. And, whichever way we answer the question, a difficulty arises; for, if they have virtue, in what will they differ from freemen? On the other hand, since they are men and share in rational principle, it seems absurd to say that they have no virtue. A similar question may be raised about women and children, whether they too have virtues: ought a woman to be temperate and brave and just, and is a child to be called temperate, and intemperate, or note So in general we may ask about the natural ruler, and the natural subject, whether they have the same or different virtues. For if a noble nature is equally required in both, why should one of them always rule, and the other always be ruled? Nor can we say that this is a question of degree, for the difference between ruler and subject is a difference of kind, which the difference of more and less never is. Yet how strange is the supposition that the one ought, and that the other ought not, to have virtue! For if the ruler is intemperate and unjust, how can he rule well? If the subject, how can he obey well? If he be licentious and cowardly, he will certainly not do his duty. It is evident, therefore, that both of them must have a share of virtue, but varying as natural subjects also vary among themselves. Here the very constitution of the soul has shown us the way; in it one part naturally rules, and the other is subject, and the virtue of the ruler we in maintain to be different from that of the subject; the one being the virtue of the rational, and the other of the irrational part. Now, it is obvious that the same principle applies generally, and therefore almost all things rule and are ruled according to nature. But the kind of rule differs; the freeman rules over the slave after another manner from that in which the male rules over the female, or the man over the child; although the parts of the soul are present in an of them, they are present in different degrees. For the slave has no deliberative faculty at all; the woman has, but it is without authority, and the child has, but it is immature. So it must necessarily be supposed to be with the moral virtues also; all should partake of them, but only in such manner and degree as is required by each for the fulfillment of his duty. Hence the ruler ought to have moral virtue in perfection, for his function, taken absolutely, demands a master artificer, and rational principle is such an artificer; the subjects, oil the other hand, require only that measure of virtue which is proper to each of them. Clearly, then, moral virtue belongs to all of them; but the temperance of a man and of a woman, or the courage and justice of a man and of a woman, are not, as Socrates maintained, the same; the courage of a man is shown in commanding, of a woman in obeying. And this holds of all other virtues, as will be more clearly seen if we look at them in detail, for those who say generally that virtue consists in a good disposition of the soul, or in doing rightly, or the like, only deceive themselves. Far better than such definitions is their mode of speaking, who, like Gorgias, enumerate the virtues. All classes must be deemed to have their special attributes; as the poet says of women,

“Silence is a woman’s glory, ”

but this is not equally the glory of man. The child is imperfect, and therefore obviously his virtue is not relative to himself alone, but to the perfect man and to his teacher, and in like manner the virtue of the slave is relative to a master. Now we determined that a slave is useful for the wants of life, and therefore he will obviously require only so much virtue as will prevent him from failing in his duty through cowardice or lack of self-control. Some one will ask whether, if what we are saying is true, virtue will not be required also in the artisans, for they often fail in their work through the lack of self control? But is there not a great difference in the two cases? For the slave shares in his master’s life; the artisan is less closely connected with him, and only attains excellence in proportion as he becomes a slave. The meaner sort of mechanic has a special and separate slavery; and whereas the slave exists by nature, not so the shoemaker or other artisan. It is manifest, then, that the master ought to be the source of such excellence in the slave, and not a mere possessor of the art of mastership which trains the slave in his duties. Wherefore they are mistaken who forbid us to converse with slaves and say that we should employ command only, for slaves stand even more in need of admonition than children.

So much for this subject; the relations of husband and wife, parent and child, their several virtues, what in their intercourse with one another is good, and what is evil, and how we may pursue the good and good and escape the evil, will have to be discussed when we speak of the different forms of government. For, inasmuch as every family is a part of a state, and these relationships are the parts of a family, and the virtue of the part must have regard to the virtue of the whole, women and children must be trained by education with an eye to the constitution, if the virtues of either of them are supposed to make any difference in the virtues of the state. And they must make a difference: for the children grow up to be citizens, and half the free persons in a state are women.

Of these matters, enough has been said; of what remains, let us speak at another time. Regarding, then, our present inquiry as complete, we will make a new beginning. And, first, let us examine the various theories of a perfect state.

BOOK THREE

Part I

He who would inquire into the essence and attributes of various kinds of governments must first of all determine ‘What is a state?’ At present this is a disputed question. Some say that the state has done a certain act; others, no, not the state, but the oligarchy or the tyrant. And the legislator or statesman is concerned entirely with the state; a constitution or government being an arrangement of the inhabitants of a state. But a state is composite, like any other whole made up of many parts; these are the citizens, who compose it. It is evident, therefore, that we must begin by asking, Who is the citizen, and what is the meaning of the term? For here again there may be a difference of opinion. He who is a citizen in a democracy will often not be a citizen in an oligarchy. Leaving out of consideration those who have been made citizens, or who have obtained the name of citizen any other accidental manner, we may say, first, that a citizen is not a citizen because he lives in a certain place, for resident aliens and slaves share in the place; nor is he a citizen who has no legal right except that of suing and being sued; for this right may be enjoyed under the provisions of a treaty. Nay, resident aliens in many places do not possess even such rights completely, for they are obliged to have a patron, so that they do but imperfectly participate in citizenship, and we call them citizens only in a qualified sense, as we might apply the term to children who are too young to be on the register, or to old men who have been relieved from state duties. Of these we do not say quite simply that they are citizens, but add in the one case that they are not of age, and in the other, that they are past the age, or something of that sort; the precise expression is immaterial, for our meaning is clear. Similar difficulties to those which I have mentioned may be raised and answered about deprived citizens and about exiles. But the citizen whom we are seeking to define is a citizen in the strictest sense, against whom no such exception can be taken, and his special characteristic is that he shares in the administration of justice, and in offices. Now of offices some are discontinuous, and the same persons are not allowed to hold them twice, or can only hold them after a fixed interval; others have no limit of time- for example, the office of a dicast or ecclesiast. It may, indeed, be argued that these are not magistrates at all, and that their functions give them no share in the government. But surely it is ridiculous to say that those who have the power do not govern. Let us not dwell further upon this, which is a purely verbal question; what we want is a common term including both dicast and ecclesiast. Let us, for the sake of distinction, call it ‘indefinite office,’ and we will assume that those who share in such office are citizens. This is the most comprehensive definition of a citizen, and best suits all those who are generally so called.

But we must not forget that things of which the underlying principles differ in kind, one of them being first, another second, another third, have, when regarded in this relation, nothing, or hardly anything, worth mentioning in common. Now we see that governments differ in kind, and that some of them are prior and that others are posterior; those which are faulty or perverted are necessarily posterior to those which are perfect. (What we mean by perversion will be hereafter explained.) The citizen then of necessity differs under each form of government; and our definition is best adapted to the citizen of a democracy; but not necessarily to other states. For in some states the people are not acknowledged, nor have they any regular assembly, but only extraordinary ones; and suits are distributed by sections among the magistrates. At Lacedaemon, for instance, the Ephors determine suits about contracts, which they distribute among themselves, while the elders are judges of homicide, and other causes are decided by other magistrates. A similar principle prevails at Carthage; there certain magistrates decide all causes. We may, indeed, modify our definition of the citizen so as to include these states. In them it is the holder of a definite, not of an indefinite office, who legislates and judges, and to some or all such holders of definite offices is reserved the right of deliberating or judging about some things or about all things. The conception of the citizen now begins to clear up.

He who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizens of that state; and, speaking generally, a state is a body of citizens sufficing for the purposes of life.

Part II

But in practice a citizen is defined to be one of whom both the parents are citizens; others insist on going further back; say to two or three or more ancestors. This is a short and practical definition but there are some who raise the further question: How this third or fourth ancestor came to be a citizen? Gorgias of Leontini, partly because he was in a difficulty, partly in irony, said- ‘Mortars are what is made by the mortar-makers, and the citizens of Larissa are those who are made by the magistrates; for it is their trade to make Larissaeans.’ Yet the question is really simple, for, if according to the definition just given they shared in the government, they were citizens. This is a better definition than the other. For the words, ‘born of a father or mother who is a citizen,’ cannot possibly apply to the first inhabitants or founders of a state.

There is a greater difficulty in the case of those who have been made citizens after a revolution, as by Cleisthenes at Athens after the expulsion of the tyrants, for he enrolled in tribes many metics, both strangers and slaves. The doubt in these cases is, not who is, but whether he who is ought to be a citizen; and there will still be a furthering the state, whether a certain act is or is not an act of the state; for what ought not to be is what is false. Now, there are some who hold office, and yet ought not to hold office, whom we describe as ruling, but ruling unjustly. And the citizen was defined by the fact of his holding some kind of rule or office- he who holds a judicial or legislative office fulfills our definition of a citizen. It is evident, therefore, that the citizens about whom the doubt has arisen must be called citizens.

Part III

Whether they ought to be so or not is a question which is bound up with the previous inquiry. For a parallel question is raised respecting the state, whether a certain act is or is not an act of the state; for example, in the transition from an oligarchy or a tyranny to a democracy. In such cases persons refuse to fulfill their contracts or any other obligations, on the ground that the tyrant, and not the state, contracted them; they argue that some constitutions are established by force, and not for the sake of the common good. But this would apply equally to democracies, for they too may be founded on violence, and then the acts of the democracy will be neither more nor less acts of the state in question than those of an oligarchy or of a tyranny. This question runs up into another: on what principle shall we ever say that the state is the same, or different? It would be a very superficial view which considered only the place and the inhabitants (for the soil and the population may be separated, and some of the inhabitants may live in one place and some in another). This, however, is not a very serious difficulty; we need only remark that the word ‘state’ is ambiguous.

It is further asked: When are men, living in the same place, to be regarded as a single city- what is the limit? Certainly not the wall of the city, for you might surround all Peloponnesus with a wall. Like this, we may say, is Babylon, and every city that has the compass of a nation rather than a city; Babylon, they say, had been taken for three days before some part of the inhabitants became aware of the fact. This difficulty may, however, with advantage be deferred to another occasion; the statesman has to consider the size of the state, and whether it should consist of more than one nation or not.

Again, shall we say that while the race of inhabitants, as well as their place of abode, remain the same, the city is also the same, although the citizens are always dying and being born, as we call rivers and fountains the same, although the water is always flowing away and coming again Or shall we say that the generations of men, like the rivers, are the same, but that the state changes? For, since the state is a partnership, and is a partnership of citizens in a constitution, when the form of government changes, and becomes different, then it may be supposed that the state is no longer the same, just as a tragic differs from a comic chorus, although the members of both may be identical. And in this manner we speak of every union or composition of elements as different when the form of their composition alters; for example, a scale containing the same sounds is said to be different, accordingly as the Dorian or the Phrygian mode is employed. And if this is true it is evident that the sameness of the state consists chiefly in the sameness of the constitution, and it may be called or not called by the same name, whether the inhabitants are the same or entirely different. It is quite another question, whether a state ought or ought not to fulfill engagements when the form of government changes.

Part IV

There is a point nearly allied to the preceding: Whether the virtue of a good man and a good citizen is the same or not. But, before entering on this discussion, we must certainly first obtain some general notion of the virtue of the citizen. Like the sailor, the citizen is a member of a community. Now, sailors have different functions, for one of them is a rower, another a pilot, and a third a look-out man, a fourth is described by some similar term; and while the precise definition of each individual’s virtue applies exclusively to him, there is, at the same time, a common definition applicable to them all. For they have all of them a common object, which is safety in navigation. Similarly, one citizen differs from another, but the salvation of the community is the common business of them all. This community is the constitution; the virtue of the citizen must therefore be relative to the constitution of which he is a member. If, then, there are many forms of government, it is evident that there is not one single virtue of the good citizen which is perfect virtue. But we say that the good man is he who has one single virtue which is perfect virtue. Hence it is evident that the good citizen need not of necessity possess the virtue which makes a good man.

The same question may also be approached by another road, from a consideration of the best constitution. If the state cannot be entirely composed of good men, and yet each citizen is expected to do his own business well, and must therefore have virtue, still inasmuch as all the citizens cannot be alike, the virtue of the citizen and of the good man cannot coincide. All must have the virtue of the good citizen- thus, and thus only, can the state be perfect; but they will not have the virtue of a good man, unless we assume that in the good state all the citizens must be good.

Again, the state, as composed of unlikes, may be compared to the living being: as the first elements into which a living being is resolved are soul and body, as soul is made up of rational principle and appetite, the family of husband and wife, property of master and slave, so of all these, as well as other dissimilar elements, the state is composed; and, therefore, the virtue of all the citizens cannot possibly be the same, any more than the excellence of the leader of a chorus is the same as that of the performer who stands by his side. I have said enough to show why the two kinds of virtue cannot be absolutely and always the same.

But will there then be no case in which the virtue of the good citizen and the virtue of the good man coincide? To this we answer that the good ruler is a good and wise man, and that he who would be a statesman must be a wise man. And some persons say that even the education of the ruler should be of a special kind; for are not the children of kings instructed in riding and military exercises? As Euripides says:

“No subtle arts for me, but what the state requires. ”

As though there were a special education needed by a ruler. If then the virtue of a good ruler is the same as that of a good man, and we assume further that the subject is a citizen as well as the ruler, the virtue of the good citizen and the virtue of the good man cannot be absolutely the same, although in some cases they may; for the virtue of a ruler differs from that of a citizen. It was the sense of this difference which made Jason say that ‘he felt hungry when he was not a tyrant,’ meaning that he could not endure to live in a private station. But, on the other hand, it may be argued that men are praised for knowing both how to rule and how to obey, and he is said to be a citizen of approved virtue who is able to do both. Now if we suppose the virtue of a good man to be that which rules, and the virtue of the citizen to include ruling and obeying, it cannot be said that they are equally worthy of praise. Since, then, it is sometimes thought that the ruler and the ruled must learn different things and not the same, but that the citizen must know and share in them both, the inference is obvious. There is, indeed, the rule of a master, which is concerned with menial offices- the master need not know how to perform these, but may employ others in the execution of them: the other would be degrading; and by the other I mean the power actually to do menial duties, which vary much in character and are executed by various classes of slaves, such, for example, as handicraftsmen, who, as their name signifies, live by the labor of their hands: under these the mechanic is included. Hence in ancient times, and among some nations, the working classes had no share in the government- a privilege which they only acquired under the extreme democracy. Certainly the good man and the statesman and the good citizen ought not to learn the crafts of inferiors except for their own occasional use; if they habitually practice them, there will cease to be a distinction between master and slave.

This is not the rule of which we are speaking; but there is a rule of another kind, which is exercised over freemen and equals by birth -a constitutional rule, which the ruler must learn by obeying, as he would learn the duties of a general of cavalry by being under the orders of a general of cavalry, or the duties of a general of infantry by being under the orders of a general of infantry, and by having had the command of a regiment and of a company. It has been well said that ‘he who has never learned to obey cannot be a good commander.’ The two are not the same, but the good citizen ought to be capable of both; he should know how to govern like a freeman, and how to obey like a freeman- these are the virtues of a citizen. And, although the temperance and justice of a ruler are distinct from those of a subject, the virtue of a good man will include both; for the virtue of the good man who is free and also a subject, e.g., his justice, will not be one but will comprise distinct kinds, the one qualifying him to rule, the other to obey, and differing as the temperance and courage of men and women differ. For a man would be thought a coward if he had no more courage than a courageous woman, and a woman would be thought loquacious if she imposed no more restraint on her conversation than the good man; and indeed their part in the management of the household is different, for the duty of the one is to acquire, and of the other to preserve. Practical wisdom only is characteristic of the ruler: it would seem that all other virtues must equally belong to ruler and subject. The virtue of the subject is certainly not wisdom, but only true opinion; he may be compared to the maker of the flute, while his master is like the flute-player or user of the flute.

From these considerations may be gathered the answer to the question, whether the virtue of the good man is the same as that of the good citizen, or different, and how far the same, and how far different.

Part V

There still remains one more question about the citizen: Is he only a true citizen who has a share of office, or is the mechanic to be included? If they who hold no office are to be deemed citizens, not every citizen can have this virtue of ruling and obeying; for this man is a citizen And if none of the lower class are citizens, in which part of the state are they to be placed? For they are not resident aliens, and they are not foreigners. May we not reply, that as far as this objection goes there is no more absurdity in excluding them than in excluding slaves and freedmen from any of the above-mentioned classes? It must be admitted that we cannot consider all those to be citizens who are necessary to the existence of the state; for example, children are not citizen equally with grown-up men, who are citizens absolutely, but children, not being grown up, are only citizens on a certain assumption. Nay, in ancient times, and among some nations the artisan class were slaves or foreigners, and therefore the majority of them are so now. The best form of state will not admit them to citizenship; but if they are admitted, then our definition of the virtue of a citizen will not apply to every citizen nor to every free man as such, but only to those who are freed from necessary services. The necessary people are either slaves who minister to the wants of individuals, or mechanics and laborers who are the servants of the community. These reflections carried a little further will explain their position; and indeed what has been said already is of itself, when understood, explanation enough.

Since there are many forms of government there must be many varieties of citizen and especially of citizens who are subjects; so that under some governments the mechanic and the laborer will be citizens, but not in others, as, for example, in aristocracy or the so-called government of the best (if there be such an one), in which honors are given according to virtue and merit; for no man can practice virtue who is living the life of a mechanic or laborer. In oligarchies the qualification for office is high, and therefore no laborer can ever be a citizen; but a mechanic may, for an actual majority of them are rich. At Thebes there was a law that no man could hold office who had not retired from business for ten years. But in many states the law goes to the length of admitting aliens; for in some democracies a man is a citizen though his mother only be a citizen; and a similar principle is applied to illegitimate children; the law is relaxed when there is a dearth of population. But when the number of citizens increases, first the children of a male or a female slave are excluded; then those whose mothers only are citizens; and at last the right of citizenship is confined to those whose fathers and mothers are both citizens.

Hence, as is evident, there are different kinds of citizens; and he is a citizen in the highest sense who shares in the honors of the state. Compare Homer’s words, ‘like some dishonored stranger’; he who is excluded from the honors of the state is no better than an alien. But when his exclusion is concealed, then the object is that the privileged class may deceive their fellow inhabitants.

As to the question whether the virtue of the good man is the same as that of the good citizen, the considerations already adduced prove that in some states the good man and the good citizen are the same, and in others different. When they are the same it is not every citizen who is a good man, but only the statesman and those who have or may have, alone or in conjunction with others, the conduct of public affairs.

Part VI

Having determined these questions, we have next to consider whether there is only one form of government or many, and if many, what they are, and how many, and what are the differences between them.

A constitution is the arrangement of magistracies in a state, especially of the highest of all. The government is everywhere sovereign in the state, and the constitution is in fact the government. For example, in democracies the people are supreme, but in oligarchies, the few; and, therefore, we say that these two forms of government also are different: and so in other cases.

First, let us consider what is the purpose of a state, and how many forms of government there are by which human society is regulated. We have already said, in the first part of this treatise, when discussing household management and the rule of a master, that man is by nature a political animal. And therefore, men, even when they do not require one another’s help, desire to live together; not but that they are also brought together by their common interests in proportion as they severally attain to any measure of well-being. This is certainly the chief end, both of individuals and of states. And also for the sake of mere life (in which there is possibly some noble element so long as the evils of existence do not greatly overbalance the good) mankind meet together and maintain the political community. And we all see that men cling to life even at the cost of enduring great misfortune, seeming to find in life a natural sweetness and happiness.

There is no difficulty in distinguishing the various kinds of authority; they have been often defined already in discussions outside the school. The rule of a master, although the slave by nature and the master by nature have in reality the same interests, is nevertheless exercised primarily with a view to the interest of the master, but accidentally considers the slave, since, if the slave perish, the rule of the master perishes with him. On the other hand, the government of a wife and children and of a household, which we have called household management, is exercised in the first instance for the good of the governed or for the common good of both parties, but essentially for the good of the governed, as we see to be the case in medicine, gymnastic, and the arts in general, which are only accidentally concerned with the good of the artists themselves. For there is no reason why the trainer may not sometimes practice gymnastics, and the helmsman is always one of the crew. The trainer or the helmsman considers the good of those committed to his care. But, when he is one of the persons taken care of, he accidentally participates in the advantage, for the helmsman is also a sailor, and the trainer becomes one of those in training. And so in politics: when the state is framed upon the principle of equality and likeness, the citizens think that they ought to hold office by turns. Formerly, as is natural, every one would take his turn of service; and then again, somebody else would look after his interest, just as he, while in office, had looked after theirs. But nowadays, for the sake of the advantage which is to be gained from the public revenues and from office, men want to be always in office. One might imagine that the rulers, being sickly, were only kept in health while they continued in office; in that case we may be sure that they would be hunting after places. The conclusion is evident: that governments which have a regard to the common interest are constituted in accordance with strict principles of justice, and are therefore true forms; but those which regard only the interest of the rulers are all defective and perverted forms, for they are despotic, whereas a state is a community of freemen.

Part VII

Having determined these points, we have next to consider how many forms of government there are, and what they are; and in the first place what are the true forms, for when they are determined the perversions of them will at once be apparent. The words constitution and government have the same meaning, and the government, which is the supreme authority in states, must be in the hands of one, or of a few, or of the many. The true forms of government, therefore, are those in which the one, or the few, or the many, govern with a view to the common interest; but governments which rule with a view to the private interest, whether of the one or of the few, or of the many, are perversions. For the members of a state, if they are truly citizens, ought to participate in its advantages. Of forms of government in which one rules, we call that which regards the common interests, kingship or royalty; that in which more than one, but not many, rule, aristocracy; and it is so called, either because the rulers are the best men, or because they have at heart the best interests of the state and of the citizens. But when the citizens at large administer the state for the common interest, the government is called by the generic name- a constitution. And there is a reason for this use of language. One man or a few may excel in virtue; but as the number increases it becomes more difficult for them to attain perfection in every kind of virtue, though they may in military virtue, for this is found in the masses. Hence in a constitutional government the fighting-men have the supreme power, and those who possess arms are the citizens.

Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.

Part VIII

But there are difficulties about these forms of government, and it will therefore be necessary to state a little more at length the nature of each of them. For he who would make a philosophical study of the various sciences, and does not regard practice only, ought not to overlook or omit anything, but to set forth the truth in every particular. Tyranny, as I was saying, is monarchy exercising the rule of a master over the political society; oligarchy is when men of property have the government in their hands; democracy, the opposite, when the indigent, and not the men of property, are the rulers. And here arises the first of our difficulties, and it relates to the distinction drawn. For democracy is said to be the government of the many. But what if the many are men of property and have the power in their hands? In like manner oligarchy is said to be the government of the few; but what if the poor are fewer than the rich, and have the power in their hands because they are stronger? In these cases the distinction which we have drawn between these different forms of government would no longer hold good.

Suppose, once more, that we add wealth to the few and poverty to the many, and name the governments accordingly- an oligarchy is said to be that in which the few and the wealthy, and a democracy that in which the many and the poor are the rulers- there will still be a difficulty. For, if the only forms of government are the ones already mentioned, how shall we describe those other governments also just mentioned by us, in which the rich are the more numerous and the poor are the fewer, and both govern in their respective states?

The argument seems to show that, whether in oligarchies or in democracies, the number of the governing body, whether the greater number, as in a democracy, or the smaller number, as in an oligarchy, is an accident due to the fact that the rich everywhere are few, and the poor numerous. But if so, there is a misapprehension of the causes of the difference between them. For the real difference between democracy and oligarchy is poverty and wealth. Wherever men rule by reason of their wealth, whether they be few or many, that is an oligarchy, and where the poor rule, that is a democracy. But as a fact the rich are few and the poor many; for few are well-to-do, whereas freedom is enjoyed by an, and wealth and freedom are the grounds on which the oligarchical and democratical parties respectively claim power in the state.

Part IX

Let us begin by considering the common definitions of oligarchy and democracy, and what is justice oligarchical and democratical. For all men cling to justice of some kind, but their conceptions are imperfect and they do not express the whole idea. For example, justice is thought by them to be, and is, equality, not. however, for however, for but only for equals. And inequality is thought to be, and is, justice; neither is this for all, but only for unequals. When the persons are omitted, then men judge erroneously. The reason is that they are passing judgment on themselves, and most people are bad judges in their own case. And whereas justice implies a relation to persons as well as to things, and a just distribution, as I have already said in the Ethics, implies the same ratio between the persons and between the things, they agree about the equality of the things, but dispute about the equality of the persons, chiefly for the reason which I have just given- because they are bad judges in their own affairs; and secondly, because both the parties to the argument are speaking of a limited and partial justice, but imagine themselves to be speaking of absolute justice. For the one party, if they are unequal in one respect, for example wealth, consider themselves to be unequal in all; and the other party, if they are equal in one respect, for example free birth, consider themselves to be equal in all. But they leave out the capital point. For if men met and associated out of regard to wealth only, their share in the state would be proportioned to their property, and the oligarchical doctrine would then seem to carry the day. It would not be just that he who paid one mina should have the same share of a hundred minae, whether of the principal or of the profits, as he who paid the remaining ninety-nine. But a state exists for the sake of a good life, and not for the sake of life only: if life only were the object, slaves and brute animals might form a state, but they cannot, for they have no share in happiness or in a life of free choice. Nor does a state exist for the sake of alliance and security from injustice, nor yet for the sake of exchange and mutual intercourse; for then the Tyrrhenians and the Carthaginians, and all who have commercial treaties with one another, would be the citizens of one state. True, they have agreements about imports, and engagements that they will do no wrong to one another, and written articles of alliance. But there are no magistrates common to the contracting parties who will enforce their engagements; different states have each their own magistracies. Nor does one state take care that the citizens of the other are such as they ought to be, nor see that those who come under the terms of the treaty do no wrong or wickedness at an, but only that they do no injustice to one another. Whereas, those who care for good government take into consideration virtue and vice in states. Whence it may be further inferred that virtue must be the care of a state which is truly so called, and not merely enjoys the name: for without this end the community becomes a mere alliance which differs only in place from alliances of which the members live apart; and law is only a convention, ‘a surety to one another of justice,’ as the sophist Lycophron says, and has no real power to make the citizens

This is obvious; for suppose distinct places, such as Corinth and Megara, to be brought together so that their walls touched, still they would not be one city, not even if the citizens had the right to intermarry, which is one of the rights peculiarly characteristic of states. Again, if men dwelt at a distance from one another, but not so far off as to have no intercourse, and there were laws among them that they should not wrong each other in their exchanges, neither would this be a state. Let us suppose that one man is a carpenter, another a husbandman, another a shoemaker, and so on, and that their number is ten thousand: nevertheless, if they have nothing in common but exchange, alliance, and the like, that would not constitute a state. Why is this? Surely not because they are at a distance from one another: for even supposing that such a community were to meet in one place, but that each man had a house of his own, which was in a manner his state, and that they made alliance with one another, but only against evil-doers; still an accurate thinker would not deem this to be a state, if their intercourse with one another was of the same character after as before their union. It is clear then that a state is not a mere society, having a common place, established for the prevention of mutual crime and for the sake of exchange. These are conditions without which a state cannot exist; but all of them together do not constitute a state, which is a community of families and aggregations of families in well-being, for the sake of a perfect and self-sufficing life. Such a community can only be established among those who live in the same place and intermarry. Hence arise in cities family connections, brotherhoods, common sacrifices, amusements which draw men together. But these are created by friendship, for the will to live together is friendship. The end of the state is the good life, and these are the means towards it. And the state is the union of families and villages in a perfect and self-sufficing life, by which we mean a happy and honorable life.

Our conclusion, then, is that political society exists for the sake of noble actions, and not of mere companionship. Hence they who contribute most to such a society have a greater share in it than those who have the same or a greater freedom or nobility of birth but are inferior to them in political virtue; or than those who exceed them in wealth but are surpassed by them in virtue.

From what has been said it will be clearly seen that all the partisans of different forms of government speak of a part of justice only.

Part X

There is also a doubt as to what is to be the supreme power in the state: Is it the multitude? Or the wealthy? Or the good? Or the one best man? Or a tyrant? Any of these alternatives seems to involve disagreeable consequences. If the poor, for example, because they are more in number, divide among themselves the property of the rich- is not this unjust? No, by heaven (will be the reply), for the supreme authority justly willed it. But if this is not injustice, pray what is? Again, when in the first division all has been taken, and the majority divide anew the property of the minority, is it not evident, if this goes on, that they will ruin the state? Yet surely, virtue is not the ruin of those who possess her, nor is justice destructive of a state; and therefore this law of confiscation clearly cannot be just. If it were, all the acts of a tyrant must of necessity be just; for he only coerces other men by superior power, just as the multitude coerce the rich. But is it just then that the few and the wealthy should be the rulers? And what if they, in like manner, rob and plunder the people- is this just? if so, the other case will likewise be just. But there can be no doubt that all these things are wrong and unjust.

Then ought the good to rule and have supreme power? But in that case everybody else, being excluded from power, will be dishonored. For the offices of a state are posts of honor; and if one set of men always holds them, the rest must be deprived of them. Then will it be well that the one best man should rule? Nay, that is still more oligarchical, for the number of those who are dishonored is thereby increased. Some one may say that it is bad in any case for a man, subject as he is to all the accidents of human passion, to have the supreme power, rather than the law. But what if the law itself be democratical or oligarchical, how will that help us out of our difficulties? Not at all; the same consequences will follow.

Part XI

Most of these questions may be reserved for another occasion. The principle that the multitude ought to be supreme rather than the few best is one that is maintained, and, though not free from difficulty, yet seems to contain an element of truth. For the many, of whom each individual is but an ordinary person, when they meet together may very likely be better than the few good, if regarded not individually but collectively, just as a feast to which many contribute is better than a dinner provided out of a single purse. For each individual among the many has a share of virtue and prudence, and when they meet together, they become in a manner one man, who has many feet, and hands, and senses; that is a figure of their mind and disposition. Hence the many are better judges than a single man of music and poetry; for some understand one part, and some another, and among them they understand the whole. There is a similar combination of qualities in good men, who differ from any individual of the many, as the beautiful are said to differ from those who are not beautiful, and works of art from realities, because in them the scattered elements are combined, although, if taken separately, the eye of one person or some other feature in another person would be fairer than in the picture. Whether this principle can apply to every democracy, and to all bodies of men, is not clear. Or rather, by heaven, in some cases it is impossible of application; for the argument would equally hold about brutes; and wherein, it will be asked, do some men differ from brutes? But there may be bodies of men about whom our statement is nevertheless true. And if so, the difficulty which has been already raised, and also another which is akin to it -viz., what power should be assigned to the mass of freemen and citizens, who are not rich and have no personal merit- are both solved. There is still a danger in aflowing them to share the great offices of state, for their folly will lead them into error, and their dishonesty into crime. But there is a danger also in not letting them share, for a state in which many poor men are excluded from office will necessarily be full of enemies. The only way of escape is to assign to them some deliberative and judicial functions. For this reason Solon and certain other legislators give them the power of electing to offices, and of calling the magistrates to account, but they do not allow them to hold office singly. When they meet together their perceptions are quite good enough, and combined with the better class they are useful to the state (just as impure food when mixed with what is pure sometimes makes the entire mass more wholesome than a small quantity of the pure would be), but each individual, left to himself, forms an imperfect judgment. On the other hand, the popular form of government involves certain difficulties. In the first place, it might be objected that he who can judge of the healing of a sick man would be one who could himself heal his disease, and make him whole- that is, in other words, the physician; and so in all professions and arts. As, then, the physician ought to be called to account by physicians, so ought men in general to be called to account by their peers. But physicians are of three kinds: there is the ordinary practitioner, and there is the physician of the higher class, and thirdly the intelligent man who has studied the art: in all arts there is such a class; and we attribute the power of judging to them quite as much as to professors of the art. Secondly, does not the same principle apply to elections? For a right election can only be made by those who have knowledge; those who know geometry, for example, will choose a geometrician rightly, and those who know how to steer, a pilot; and, even if there be some occupations and arts in which private persons share in the ability to choose, they certainly cannot choose better than those who know. So that, according to this argument, neither the election of magistrates, nor the calling of them to account, should be entrusted to the many. Yet possibly these objections are to a great extent met by our old answer, that if the people are not utterly degraded, although individually they may be worse judges than those who have special knowledge- as a body they are as good or better. Moreover, there are some arts whose products are not judged of solely, or best, by the artists themselves, namely those arts whose products are recognized even by those who do not possess the art; for example, the knowledge of the house is not limited to the builder only; the user, or, in other words, the master, of the house will be even a better judge than the builder, just as the pilot will judge better of a rudder than the carpenter, and the guest will judge better of a feast than the cook.

This difficulty seems now to be sufficiently answered, but there is another akin to it. That inferior persons should have authority in greater matters than the good would appear to be a strange thing, yet the election and calling to account of the magistrates is the greatest of all. And these, as I was saying, are functions which in some states are assigned to the people, for the assembly is supreme in all such matters. Yet persons of any age, and having but a small property qualification, sit in the assembly and deliberate and judge, although for the great officers of state, such as treasurers and generals, a high qualification is required. This difficulty may be solved in the same manner as the preceding, and the present practice of democracies may be really defensible. For the power does not reside in the dicast, or senator, or ecclesiast, but in the court, and the senate, and the assembly, of which individual senators, or ecclesiasts, or dicasts, are only parts or members. And for this reason the many may claim to have a higher authority than the few; for the people, and the senate, and the courts consist of many persons, and their property collectively is greater than the property of one or of a few individuals holding great offices. But enough of this.

The discussion of the first question shows nothing so clearly as that laws, when good, should be supreme; and that the magistrate or magistrates should regulate those matters only on which the laws are unable to speak with precision owing to the difficulty of any general principle embracing all particulars. But what are good laws has not yet been clearly explained; the old difficulty remains. The goodness or badness, justice or injustice, of laws varies of necessity with the constitutions of states. This, however, is clear, that the laws must be adapted to the constitutions. But if so, true forms of government will of necessity have just laws, and perverted forms of government will have unjust laws.

Part XII

In all sciences and arts the end is a good, and the greatest good and in the highest degree a good in the most authoritative of all- this is the political science of which the good is justice, in other words, the common interest. All men think justice to be a sort of equality; and to a certain extent they agree in the philosophical distinctions which have been laid down by us about Ethics. For they admit that justice is a thing and has a relation to persons, and that equals ought to have equality. But there still remains a question: equality or inequality of what? Here is a difficulty which calls for political speculation. For very likely some persons will say that offices of state ought to be unequally distributed according to superior excellence, in whatever respect, of the citizen, although there is no other difference between him and the rest of the community; for that those who differ in any one respect have different rights and claims. But, surely, if this is true, the complexion or height of a man, or any other advantage, will be a reason for his obtaining a greater share of political rights. The error here lies upon the surface, and may be illustrated from the other arts and sciences. When a number of flute players are equal in their art, there is no reason why those of them who are better born should have better flutes given to them; for they will not play any better on the flute, and the superior instrument should be reserved for him who is the superior artist. If what I am saying is still obscure, it will be made clearer as we proceed. For if there were a superior flute-player who was far inferior in birth and beauty, although either of these may be a greater good than the art of flute-playing, and may excel flute-playing in a greater ratio than he excels the others in his art, still he ought to have the best flutes given to him, unless the advantages of wealth and birth contribute to excellence in flute-playing, which they do not. Moreover, upon this principle any good may be compared with any other. For if a given height may be measured wealth and against freedom, height in general may be so measured. Thus if A excels in height more than B in virtue, even if virtue in general excels height still more, all goods will be commensurable; for if a certain amount is better than some other, it is clear that some other will be equal. But since no such comparison can be made, it is evident that there is good reason why in politics men do not ground their claim to office on every sort of inequality any more than in the arts. For if some be slow, and others swift, that is no reason why the one should have little and the others much; it is in gymnastics contests that such excellence is rewarded. Whereas the rival claims of candidates for office can only be based on the possession of elements which enter into the composition of a state. And therefore the noble, or free-born, or rich, may with good reason claim office; for holders of offices must be freemen and taxpayers: a state can be no more composed entirely of poor men than entirely of slaves. But if wealth and freedom are necessary elements, justice and valor are equally so; for without the former qualities a state cannot exist at all, without the latter not well.

Part XIII

If the existence of the state is alone to be considered, then it would seem that all, or some at least, of these claims are just; but, if we take into account a good life, then, as I have already said, education and virtue have superior claims. As, however, those who are equal in one thing ought not to have an equal share in all, nor those who are unequal in one thing to have an unequal share in all, it is certain that all forms of government which rest on either of these principles are perversions. All men have a claim in a certain sense, as I have already admitted, but all have not an absolute claim. The rich claim because they have a greater share in the land, and land is the common element of the state; also they are generally more trustworthy in contracts. The free claim under the same tide as the noble; for they are nearly akin. For the noble are citizens in a truer sense than the ignoble, and good birth is always valued in a man’s own home and country. Another reason is, that those who are sprung from better ancestors are likely to be better men, for nobility is excellence of race. Virtue, too, may be truly said to have a claim, for justice has been acknowledged by us to be a social virtue, and it implies all others. Again, the many may urge their claim against the few; for, when taken collectively, and compared with the few, they are stronger and richer and better. But, what if the good, the rich, the noble, and the other classes who make up a state, are all living together in the same city, Will there, or will there not, be any doubt who shall rule? No doubt at all in determining who ought to rule in each of the above-mentioned forms of government. For states are characterized by differences in their governing bodies-one of them has a government of the rich, another of the virtuous, and so on. But a difficulty arises when all these elements co-exist. How are we to decide? Suppose the virtuous to be very few in number: may we consider their numbers in relation to their duties, and ask whether they are enough to administer the state, or so many as will make up a state? Objections may be urged against all the aspirants to political power. For those who found their claims on wealth or family might be thought to have no basis of justice; on this principle, if any one person were richer than all the rest, it is clear that he ought to be ruler of them. In like manner he who is very distinguished by his birth ought to have the superiority over all those who claim on the ground that they are freeborn. In an aristocracy, or government of the best, a like difficulty occurs about virtue; for if one citizen be better than the other members of the government, however good they may be, he too, upon the same principle of justice, should rule over them. And if the people are to be supreme because they are stronger than the few, then if one man, or more than one, but not a majority, is stronger than the many, they ought to rule, and not the many.

All these considerations appear to show that none of the principles on which men claim to rule and to hold all other men in subjection to them are strictly right. To those who claim to be masters of the government on the ground of their virtue or their wealth, the many might fairly answer that they themselves are often better and richer than the few- I do not say individually, but collectively. And another ingenious objection which is sometimes put forward may be met in a similar manner. Some persons doubt whether the legislator who desires to make the justest laws ought to legislate with a view to the good of the higher classes or of the many, when the case which we have mentioned occurs. Now what is just or right is to be interpreted in the sense of ‘what is equal’; and that which is right in the sense of being equal is to be considered with reference to the advantage of the state, and the common good of the citizens. And a citizen is one who shares in governing and being governed. He differs under different forms of government, but in the best state he is one who is able and willing to be governed and to govern with a view to the life of virtue.

If, however, there be some one person, or more than one, although not enough to make up the full complement of a state, whose virtue is so pre-eminent that the virtues or the political capacity of all the rest admit of no comparison with his or theirs, he or they can be no longer regarded as part of a state; for justice will not be done to the superior, if he is reckoned only as the equal of those who are so far inferior to him in virtue and in political capacity. Such an one may truly be deemed a God among men. Hence we see that legislation is necessarily concerned only with those who are equal in birth and in capacity; and that for men of pre-eminent virtue there is no law- they are themselves a law. Any would be ridiculous who attempted to make laws for them: they would probably retort what, in the fable of Antisthenes, the lions said to the hares, when in the council of the beasts the latter began haranguing and claiming equality for all. And for this reason democratic states have instituted ostracism; equality is above all things their aim, and therefore they ostracized and banished from the city for a time those who seemed to predominate too much through their wealth, or the number of their friends, or through any other political influence. Mythology tells us that the Argonauts left Heracles behind for a similar reason; the ship Argo would not take him because she feared that he would have been too much for the rest of the crew. Wherefore those who denounce tyranny and blame the counsel which Periander gave to Thrasybulus cannot be held altogether just in their censure. The story is that Periander, when the herald was sent to ask counsel of him, said nothing, but only cut off the tallest ears of corn till he had brought the field to a level. The herald did not know the meaning of the action, but came and reported what he had seen to Thrasybulus, who understood that he was to cut off the principal men in the state; and this is a policy not only expedient for tyrants or in practice confined to them, but equally necessary in oligarchies and democracies. Ostracism is a measure of the same kind, which acts by disabling and banishing the most prominent citizens. Great powers do the same to whole cities and nations, as the Athenians did to the Samians, Chians, and Lesbians; no sooner had they obtained a firm grasp of the empire, than they humbled their allies contrary to treaty; and the Persian king has repeatedly crushed the Medes, Babylonians, and other nations, when their spirit has been stirred by the recollection of their former greatness.

The problem is a universal one, and equally concerns all forms of government, true as well as false; for, although perverted forms with a view to their own interests may adopt this policy, those which seek the common interest do so likewise. The same thing may be observed in the arts and sciences; for the painter will not allow the figure to have a foot which, however beautiful, is not in proportion, nor will the shipbuilder allow the stem or any other part of the vessel to be unduly large, any more than the chorus-master will allow any one who sings louder or better than all the rest to sing in the choir. Monarchs, too, may practice compulsion and still live in harmony with their cities, if their own government is for the interest of the state. Hence where there is an acknowledged superiority the argument in favor of ostracism is based upon a kind of political justice. It would certainly be better that the legislator should from the first so order his state as to have no need of such a remedy. But if the need arises, the next best thing is that he should endeavor to correct the evil by this or some similar measure. The principle, however, has not been fairly applied in states; for, instead of looking to the good of their own constitution, they have used ostracism for factious purposes. It is true that under perverted forms of government, and from their special point of view, such a measure is just and expedient, but it is also clear that it is not absolutely just. In the perfect state there would be great doubts about the use of it, not when applied to excess in strength, wealth, popularity, or the like, but when used against some one who is pre-eminent in virtue- what is to be done with him? Mankind will not say that such an one is to be expelled and exiled; on the other hand, he ought not to be a subject- that would be as if mankind should claim to rule over Zeus, dividing his offices among them. The only alternative is that all should joyfully obey such a ruler, according to what seems to be the order of nature, and that men like him should be kings in their state for life.

A brief overview of the case: Is it unjust to consider race as a factor in college and university admissions? That is what Cheryl Hopwood argued when she was denied admission to the University of Texas Law School even though her test scores and grades were higher than some of the minority candidates who were admitted. Hopwood, together with a number of other white candidates, sued the University of Texas Law School in the case of Hopwood v. State of Texas (1996).


Cheryl J. Hopwood v. State of Texas

United States Court of Appeals for the Fifth Circuit

March 18, 1996

JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the enrollment of certain favored classes of minority students, the University of Texas School of Law (“the law school”) discriminates in favor of those applicants by giving substantial racial preferences in its admissions program. The beneficiaries of this system are blacks and Mexican Americans, to the detriment of whites and non-preferred minorities. The question we decide today in No. 94-50664 is whether the Fourteenth Amendment permits the school to discriminate in this way.

We hold that it does not. The law school has presented no compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that allows it to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body. “Racial preferences appear to ‘even the score’ … only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against a white.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 109 S.Ct. 706, 740, 102 L.Ed.2d 854 (1989) (Scalia, J., concurring in the judgment).

As a result of its diligent efforts in this case, the district court concluded that the law school may continue to impose racial preferences. See Hopwood v. Texas, 861 F.Supp. 551 (W.D.Tex.1994). In No. 94-50664, we reverse and remand, concluding that the law school may not use race as a factor in law school admissions.

The University of Texas School of Law is one of the nation’s leading law schools, consistently ranking in the top twenty. See, e.g., America’s Best Graduate Schools, U.S. NEWS & WORLD REPORT Mar. 20, 1995, at 84 (national survey ranking of seventeenth). Accordingly, admission to the law school is fiercely competitive, with over 4,000 applicants a year competing to be among the approximately 900 offered admission to achieve an entering class of about 500 students. Many of these applicants have some of the highest grades and test scores in the country.

Numbers are therefore paramount for admission. In the early 1990′s, the law school largely based its initial admissions decisions upon an applicant’s so-called Texas Index (“TI”) number, a composite of undergraduate grade point average (“GPA”) and Law School Aptitude Test (“LSAT”) score.1 The law school used this number as a matter of administrative convenience in order to rank candidates and to predict, roughly, one’s probability of success in law school. Moreover, the law school relied heavily upon such numbers to estimate the number of offers of admission it needed to make in order to fill its first-year class.

Of course, the law school did not rely upon numbers alone. The admissions office necessarily exercised judgment in interpreting the individual scores of applicants, taking into consideration factors such as the strength of a student’s undergraduate education, the difficulty of his major, and significant trends in his own grades and the undergraduate grades at his respective college (such as grade inflation). Admissions personnel also considered what qualities each applicant might bring to his law school class. Thus, the law school could consider an applicant’s background, life experiences, and outlook. Not surprisingly, these hard-to-quantify factors were especially significant for marginal candidates.2

Because of the large number of applicants and potential admissions factors, the TI’s administrative usefulness was its ability to sort candidates. For the class entering in 1992–the admissions group at issue in this case–the law school placed the typical applicant in one of three categories according to his TI scores: “presumptive admit,” “presumptive deny,” or a middle “discretionary zone.” An applicant’s TI category determined how extensive a review his application would receive.

Blacks and Mexican Americans were treated differently from other candidates, however. First, compared to whites and non-preferred minorities,4 the TI ranges that were used to place them into the three admissions categories were lowered to allow the law school to consider and admit more of them. In March 1992, for example, the presumptive TI admission score for resident whites and non-preferred minorities was 199.5 Mexican Americans and blacks needed a TI of only 189 to be presumptively admitted.6 The difference in the presumptive-deny ranges is even more striking. The presumptive denial score for “nonminorities” was 192; the same score for blacks and Mexican Americans was 179.

While these cold numbers may speak little to those unfamiliar with the pool of applicants, the results demonstrate that the difference in the two ranges was dramatic. According to the law school, 1992 resident white applicants had a mean GPA of 3.53 and an LSAT of 164. Mexican Americans scored 3.27 and 158; blacks scored 3.25 and 157. The category of “other minority” achieved a 3.56 and 160.7

These disparate standards greatly affected a candidate’s chance of admission. For example, by March 1992, because the presumptive denial score for whites was a TI of 192 or lower, and the presumptive admit TI for minorities was 189 or higher, a minority candidate with a TI of 189 or above almost certainly would be admitted, even though his score was considerably below8 the level at which a white candidate almost certainly would be rejected. Out of the pool of resident applicants who fell within this range (189-192 inclusive), 100% of blacks and 90% of Mexican Americans, but only 6% of whites, were offered admission.9

The stated purpose of this lowering of standards was to meet an “aspiration” of admitting a class consisting of 10% Mexican Americans and 5% blacks, proportions roughly comparable to the percentages of those races graduating from Texas colleges. The law school found meeting these “goals” difficult, however, because of uncertain acceptance rates and the variable quality of the applicant pool.10 In 1992, for example, the entering class contained 41 blacks and 55 Mexican Americans, respectively 8% and 10.7% of the class.

In addition to maintaining separate presumptive TI levels for minorities and whites, the law school ran a segregated application evaluation process. Upon receiving an application form, the school color-coded it according to race. If a candidate failed to designate his race, he was presumed to be in a nonpreferential category. Thus, race was always an overt part of the review of any applicant’s file.

Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers (the “plaintiffs”) applied for admission to the 1992 entering law school class. All four were white residents of Texas and were rejected.

The plaintiffs were considered as discretionary zone candidates.12 Hopwood, with a GPA of 3.8 and an LSAT of 39 (equivalent to a three-digit LSAT of 160), had a TI of 199, a score barely within the presumptive-admit category for resident whites, which was 199 and up. She was dropped into the discretionary zone for resident whites (193 to 198), however, because Johanson decided her educational background overstated the strength of her GPA.

The plaintiffs sued primarily under the Equal Protection Clause of the Fourteenth Amendment. … The central purpose of the Equal Protection Clause “is to prevent the States from purposefully discriminating between individuals on the basis of race.” … In order to preserve these principles, the Supreme Court recently has required that any governmental action that expressly distinguishes between persons on the basis of race be held to the most exacting scrutiny. See, e.g., id. at —-, 115 S.Ct. at 2113; Loving, 388 U.S. at 11, 87 S.Ct. at 1823. Furthermore, there is now absolutely no doubt that courts are to employ strict scrutiny16 when evaluating all racial classifications, including those characterized by their proponents as “benign” or “remedial.” …

Under the strict scrutiny analysis, we ask two questions: (1) Does the racial classification serve a compelling government interest, and (2) is it narrowly tailored to the achievement of that goal? …

With these general principles of equal protection in mind, we turn to the specific issue of whether the law school’s consideration of race as a factor in admissions violates the Equal Protection Clause. The district court found both a compelling remedial and a non-remedial justification for the practice.

First, the court approved of the non-remedial goal of having a diverse student body, reasoning that “obtaining the educational benefits that flow from a racially and ethnically diverse student body remains a sufficiently compelling interest to support the use of racial classifications.” 861 F.Supp. at 571. Second, the court determined that the use of racial classifications could be justified as a remedy for the “present effects at the law school of past discrimination in both the University of Texas system and the Texas educational system as a whole.”

We agree with the plaintiffs that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment. … [T]here has been no indication from the Supreme Court, other than Justice Powell’s lonely opinion in Bakke, that the state’s interest in diversity constitutes a compelling justification for governmental race-based discrimination. Subsequent Supreme Court caselaw strongly suggests, in fact, that it is not.

Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility.

The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants. Thus, the Supreme Court has long held that governmental actors cannot justify their decisions solely because of race.

While the use of race per se is proscribed, state-supported schools may reasonably consider a host of factors–some of which may have some correlation with race–in making admissions decisions. The federal courts have no warrant to intrude on those executive and legislative judgments unless the distinctions intrude on specific provisions of federal law or the Constitution.

A university may properly favor one applicant over another because of his ability to play the cello, make a downfield tackle, or understand chaos theory. An admissions process may also consider an applicant’s home state or relationship to school alumni. Law schools specifically may look at things such as unusual or substantial extracurricular activities in college, which may be atypical factors affecting undergraduate grades. Schools may even consider factors such as whether an applicant’s parents attended college or the applicant’s economic and social background.28

For this reason, race often is said to be justified in the diversity context, not on its own terms, but as a proxy for other characteristics that institutions of higher education value but that do not raise similar constitutional concerns. Unfortunately, this approach simply replicates the very harm that the Fourteenth Amendment was designed to eliminate.

The assumption is that a certain individual possesses characteristics by virtue of being a member of a certain racial group. This assumption, however, does not withstand scrutiny. “[T]he use of a racial characteristic to establish a presumption that the individual also possesses other, and socially relevant, characteristics, exemplifies, encourages, and legitimizes the mode of thought and behavior that underlies most prejudice and bigotry in modern America.” Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP.CT.REV. 12 (1974).

To believe that a person’s race controls his point of view is to stereotype him. The Supreme Court, however, “has remarked a number of times, in slightly different contexts, that it is incorrect and legally inappropriate to impute to women and minorities ‘a different attitude about such issues as the federal budget, school prayer, voting, and foreign relations.’ ”

Instead, individuals, with their own conceptions of life, further diversity of viewpoint. Plaintiff Hopwood is a fair example of an applicant with a unique background. She is the now-thirty-two-year-old wife of a member of the Armed Forces stationed in San Antonio and, more significantly, is raising a severely handicapped child. Her circumstance would bring a different perspective to the law school. The school might consider this an advantage to her in the application process, or it could decide that her family situation would be too much of a burden on her academic performance.

We do not opine on which way the law school should weigh Hopwood’s qualifications; we only observe that “diversity” can take many forms. To foster such diversity, state universities and law schools and other governmental entities must scrutinize applicants individually, rather than resorting to the dangerous proxy of race. …

In summary, we hold that the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school’s poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school. Because the law school has proffered these justifications for its use of race in admissions, the plaintiffs have satisfied their burden of showing that they were scrutinized under an unconstitutional admissions system. The plaintiffs are entitled to reapply under an admissions system that invokes none of these serious constitutional infirmities. …

A brief overview of the case: Barbara Grutter applied to law school at the University of Michigan. She was rejected, even though her grades were higher than some of the minority candidates who were admitted. In Grutter v. Bollinger, the US Supreme Court decided that the University of Michigan had acted lawfully. Racial diversity at law school was an important goal. Do you agree? Was the decision just or unjust?


GRUTTER v. BOLLINGER et al.

Supreme Court of United States.

Decided June 23, 2003.

Justice O’Connor delivered the opinion of the Court.

This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.

The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” App. 110. More broadly, the Law School seeks “a mix of students with varying backgrounds and experiences who will respect and learn from each other.” …

The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” … The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” Id., at 118. The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” Id., at 118, 120. The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” Id., at 120. By enrolling a “`critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.” Id., at 120-121.

Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit [alleging] that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment. …

Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.” In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.

Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. …

As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a `critical mass’ of minority students.” Brief for Respondent Bollinger et al. 13. The Law School’s interest is not simply “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke, 438 U. S., at 307 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts, 503 U. S. 467, 494 (1992) (“Racial balance is not to be achieved for its own sake”); Richmond v. J. A. Croson Co., 488 U. S., at 507. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.” App. to Pet. for Cert. 246a. These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” Id., at 246a, 244a.

The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” …

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr., et al. as Amici Curiae 5. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Ibid. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” …

Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Sweatt v. Painter, 339 U. S. 629, 634 (1950) (describing law school as a “proving ground for legal learning and practice”). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5-6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id., at 6.

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v. Painter, supra, at 634. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.

The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.

Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” …

We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id., at 315-316. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of individualized consideration of each and every applicant. Ibid.

We are satisfied that the Law School’s admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. … Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. … We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. See App. 120.

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. … It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. …
JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I-VII, concurring in part and dissenting in part.

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:

“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of “strict scrutiny.”

The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. …

Unlike the majority, I seek to define with precision the interest being asserted by the Law School before determining whether that interest is so compelling as to justify racial discrimination. The Law School maintains that it wishes to obtain “educational benefits that flow from student body diversity,” Brief for Respondent Bollinger et al. 14. This statement must be evaluated carefully, because it implies that both “diversity” and “educational benefits” are components of the Law School’s compelling state interest. Additionally, the Law School’s refusal to entertain certain changes in its admissions process and status indicates that the compelling state interest it seeks to validate is actually broader than might appear at first glance. …

One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondent Bollinger et al. 33-36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.4
104

The proffered interest that the majority vindicates today, then, is not simply “diversity.” Instead the Court upholds the use of racial discrimination as a tool to advance the Law School’s interest in offering a marginally superior education while maintaining an elite institution. … Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school. Likewise, marginal improvements in legal education do not qualify as a compelling state interest.

As the foregoing makes clear, Michigan has no compelling interest in having a law school at all, much less an elite one. … The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions “standards” that, in turn, create the Law School’s “need” to discriminate on the basis of race. … The Court never explicitly holds that the Law School’s desire to retain the status quo in “academic selectivity” is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III-B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system—it cannot have it both ways.

With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, see Brief for United States as Amicus Curiae 13-14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree. …

Putting aside the absence of any legal support for the majority’s reflexive deference, there is much to be said for the view that the use of tests and other measures to “predict” academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to “merit.” For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called “legacy” preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a “true” meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation’s universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.10 I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids.

In any event, there is nothing ancient, honorable, or constitutionally protected about “selective” admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students, for it brought to this country the German certificate system in the late-19th century. See H. Wechsler, The Qualified Student 16-39 (1977) (hereinafter Qualified Student). Under this system, a secondary school was certified by a university so that any graduate who completed the course offered by the school was offered admission to the university. The certification regime supplemented, and later virtually replaced (at least in the Midwest), the prior regime of rigorous subject-matter entrance examinations. Id., at 57-58. The facially race-neutral “percent plans” now used in Texas, California, and Florida, see ante, at 340, are in many ways the descendents of the certificate system. …

Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country’s universities, the Law School’s intractable approach toward admissions is striking.
138

The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination. …

I must contest the notion that the Law School’s discrimination benefits those admitted as a result of it. … The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176-177 (1994) (“Even if most minority students are able to meet the normal standards at the `average’ range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education”). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue— in selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002-2003, pp. 39-40 (noting the presence of a “diversity plan” for admission to the review), and in hiring at law firms and for judicial clerkships—until the “beneficiaries” are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less “elite” law school for which they were better prepared. …

Beyond the harm the Law School’s racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination “engender[s] attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government’s use of race.” Adarand, 515 U. S., at 241 (THOMAS, J., concurring in part and concurring in judgment). “These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are `entitled’ to preferences.” Ibid.

It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondent Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. …

The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School’s fabricated compelling state interest. Ante, at 343. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that timeframe.13 In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black.14 In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court’s holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time. …

For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to “[d]o nothing with us!” and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court’s opinion and the judgment.

In 1974, Allan Bakke, a white male, applied to medical school at the University of California, Davis. He was rejected, even though his grades and test scores were higher than some of the minority candidates who were admitted that year.

Bakke sued the medical school. The U.S. Supreme Court decided that he should be let in. Schools could use race as one factor among others in deciding which candidates to accept, but they could not use race as a quota, by reserving some seats for minority candidates only.

Was the decision of the U.S. Supreme Court just? Consider the following questions as you think about the morality of affirmative action.

  1. Do you think Bakke was treated unfairly? Does he have a right to be considered solely on the basis of his academic and personal merit?
  2. Bakke couldn’t help that he was born a member of the white majority. This is a factor over which he had no control, so why should he be rejected from medical school just because he’s white?
  3. Bakke did nothing to be born with the capacity for high achievement. His natural talents are a factor over which he had no control, so why is he entitled to be judged only by his personal and academic merit?
  4. Often, naturally gifted athletes go to college on scholarship. However, their natural talents are a factor over which they had no control. Is it just that scholarships should go to gifted athletes but not to other people?
  5. What is merit? Often, minority groups receive better care from minority doctors and better representation from minority lawyers. Does the ability to serve the needs of minority communities constitute a form of merit? Shouldn’t schools train doctors and lawyers who will provide the best care and the best representation?
  6. Barbara Grutter applied to law school at the University of Michigan. She was rejected, even though her grades were higher than some of the minority candidates who were admitted. This time, the US Supreme Court decided that the University of Michigan had acted lawfully, because racial diversity at law school was an important goal. Do you agree? Was the decision of the US Supreme Court just or unjust?
  7. In the United States, African Americans have historically been disadvantaged because of slavery and racial segregation. Is affirmative action in college admissions an acceptable form of compensation for historical disadvantage?

In 1974, Allan Bakke, a white male, applied to medical school at the University of California, Davis. He was rejected, even though his grades and test scores were higher than some of the minority candidates who were admitted that year.

Bakke sued the medical school. The U.S. Supreme Court decided that he should be let in. Schools could consider race as one factor among others in deciding which candidates to admit, but they could not use race as a quota, by reserving some seats for minority candidates only.

Do you think Bakke was treated unfairly? Did he have a right to be considered on the basis of his intellectual merits alone? Consider the following questions as you think about the morality of affirmative action.

  1. Can Bakke be said to deserve to be admitted to medical school? Sure, he didn’t choose to be a member of the white majority—he was just born that way. But he also didn’t choose to be naturally gifted—he was also just born that way. These are factors equally outside of his control. Why should Bakke’s application to medical school be considered solely on the basis of personal and academic merit when this depends at least partly on factors over which he had no control?
  2. What is merit in general? Often minority groups receive better care when they are treated by minority doctors, so doesn’t being a minority count as merit? Shouldn’t we train the doctors who will provide the best care?
  3. What if minority lawyers do a better job helping their minority clients than do white lawyers? Is that a form of merit? Does it justify discriminating against law school applicants who are white?
  4. Medical schools and law schools often argue that racial diversity is important to the quality of professional education. It makes people more open-minded, helps them learn from their peers, and makes them sensitive to people with different needs. Should medical schools and law schools therefore be allowed to admit a certain number of minority candidates each year, for the sake of achieving the educational benefits of diversity?
  5. Barbara Grutter applied to law school at the University of Michigan. She was also rejected, even though her grades were higher than some of the minority candidates who were admitted. This time, the US Supreme Court decided that the University of Michigan had acted lawfully. Racial diversity at law school was an important goal. Do you agree? Was the decision just or unjust?
  6. In the United States, African Americans have historically been disadvantaged because of slavery and racial segregation. Is affirmative action in college admissions an acceptable form of compensating for historical disadvantage?
  7. Is affirmative action in hiring for jobs an acceptable form of compensating for historical disadvantage? Is affirmative action acceptable even if equally qualified white candidates are rejected as a result?
  8. In general, is it legitimate to design social, political, and educational institutions to redress past wrongs? Does your answer depend on what kind of institution we are talking about?
  9. In 2003, the New Haven fire department administered a test to rank candidates for promotion. When none of the African-American firefighters scored high enough to be considered for promotion, the fire department chose to invalidate the test results. The white and Hispanic firefighters then sued the fire department. The US Supreme Court decided that the fire department had engaged in wrongful racial discrimination by invalidating the test results. Do you think that the Court made the right decision?
  10. Is affirmative action equally acceptable in elementary school, college, and graduate school?
  11. Is affirmative action equally acceptable when picking candidates for government jobs, when picking candidates for private sector jobs, and when choosing who will receive government income support?
  12. Which wrongs are sufficiently important to justify using affirmative action to redress them?

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