Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ to benefit or injure us. Thus the first law is put into practice through the repulsion of one body from another, and the second law, through the attachment of one body to another. To this end, the lower animals were given their corporeal members and we, our hands and feet, as instruments for the two functions of repelling and attaching. This function of attachment is a gift from God. For He who bestowed upon living creatures their very existence, bestowed also the things necessary for existence. Some of these things, indeed, are necessary to being, while others are necessary only to well-being; or, one might say that they relate respectively to safety and to comfort. In a universal sense, moreover, inferior things were given for use by their superiors. Plants and herbs, for example, were given to the beasts, and beasts—as well as all things in general—to man,^a inasmuch as man excels in worth all other created things. However, since God bestowed these gifts upon the human race, not upon individual men,^b and since such gifts could be turned to use only through acquisition of possession by individuals, it necessarily followed that τὸ ἐσφετερισμἑνον, “what had been seized as his own” by each person should become the property of that person. Such seizure is called possessio [the act of taking possession], the forerunner of usus [6′] [use], and subsequently of dominium [ownership].^c

      But God judged that there would be insufficient provision for the preservation of His works, if He commended to each individual’s care only the safety of that particular individual, without also willing that one created being should have regard for the welfare of his fellow beings,^d in such a way that all might be linked in mutual harmony as if by an everlasting covenant. Seneca^e has said: “You must needs live for others, if you would live for yourself.”

      Love, then, is twofold: love for oneself, and love for others. In the former aspect, it is known as “desire”; in the latter, as “friendliness.”^f While a certain form of friendliness is discernible even within inanimate objects, and more clearly so in the lower animals, this manifestation of love burns most brightly in man, as in one who is peculiarly endowed not only with the affections shared in common with other creatures but also with the sovereign attribute of reason: that is to say, as in a being derived from God Himself, who imprinted upon man the image of His own mind. Epicharmus calls attention to this point in the following verse:^g

      ὁ δἑ γε τἀνθρώπου λόγος πἑφυκ’ ἀπὸ του̑ θείου λόγου.

       Man’s reason from God’s reason takes its being.

      The primary law of nations

      Rule II

      To be sure, this rational faculty has been darkly beclouded by human vice; yet not to such a degree but that rays of the divine light are still clearly visible, manifesting themselves especially in the mutual accord of nations. For evil and falsehood are, in a sense and by their very nature, of infinite extent^a and at the same time internally discordant, whereas universal concord can exist only in relation to that which is good and true.^b Many persons, indeed, have chosen to call that very accord the secondary law of nature, or primary law of nations;⁴ and Cicero^c has said that the principle informing this law is nothing more nor less than right reason derived from the will of the gods. In another passage, the same author^d declares that, “on any matter, the consensus of all nations should be regarded as a precept of the natural law.” Heraclitus^e perceives this truth; for though he postulates the existence of two kinds of reason—λόγους, τὸν ξυνὸν καὶ τὸν ἴδιον, that is to say, a universal form of reason or understanding, and an individual form—he maintains that universal reason is the κριτήριον [criterion] and judge, so to speak, of truth, τὰ γὰρ κοινῃ̑ φαινόμενα πιστά, “on the ground that those things are worthy of faith which are commonly so regarded.” To this assertion he adds the following comment: τρἑφονται πάντες οἱ ἀνθρώπινοι νόμοι ὑπὸ ἑνὸς του̑ θείου; “All the laws of mortals rest upon one divine law.”^f Thus a second rule is derived from the first, namely: What the common consent of mankind has shown to be the will of all, that is law.

      Now, men agree most emphatically upon the proposition that it behoves us to have a care for the welfare of others; for the acceptance of this obligation might almost be termed a distinguishing characteristic of man. It is for this reason that the wise philosophy⁵ of Seneca^a ascribes to the concept of good the quality of pertaining both to oneself and to others. Here we have the starting-point of that justice, properly so called, which Aristotle^b and various writers have described as being concerned with the good of others, and which Cicero^c and Apuleius^d depict as “looking outwards.” Hesiod^e offers the following admirable comment on the same subject: [7]

      Τόνδε γὰρ ἀνθρωποι̑σι νόμον διἑταξε Κρονίων,

       Ἰχθύσι γὰρ καὶ θηρσὶ καὶ οἰωνοι̑ς πετεηνοι̑ς

       Ἐσθἑμεν ἀλλήλους. ἐπεὶ οὐ δίκη ἐστὶ μετ’ αὐτω̑ν.

       Ἀνθρωποι̑σι δ’ ἔδωκε δίκην, ἣ πολλὸν ἀρίστη.

      For laws were giv’n to man by highest Jove. The beasts, forsooth, the fish, the birds that soar Feed on each other, ignorant of right; On us, however, justice—best of gifts— Hath been conferred. . . .

      Seneca^f has said: “Just as all the bodily members function in mutual harmony because it is to the advantage of the whole that the individual parts be preserved, even so mankind will show forbearance toward individuals because we are born for a life of fellowship. Society, too, can be kept safe from harm only by love and watchful care for its componentparts.” Elsewhere, he^a declares that, “Security must be obtained by offering security in exchange.” Herein lies that brotherhood of man, that world state, commended to us so frequently and so enthusiastically by the ancient philosophers and particularly by the Stoics, whose view Cicero^b adopts. This view is also the basis of the statement made by Florentinus,^c namely, that because of a certain kinship established among us by nature, it is sinful that man should lie in ambush for his fellow man, a precept which Cicero^d very properly ascribes to the law of nations.

      The foregoing observations show how erroneously the Academics—those masters of ignorance—have argued in refutation of justice, that the kind derived from nature looks solely to personal advantage, while civil justice is based not upon nature but merely upon opinion; for they have overlooked that intermediate aspect of justice which is characteristic of humankind.^e

      Law III

      Law IV

      Accordingly, from the First and Second Rules two laws arise, relating to the good of others, whereby the preceding laws, which relate to one’s own good, are complemented and confined within just limits.^f One of the two laws in question runs as follows: Let no one inflict injury upon his fellow. The other is the precept: Let no one seize possession of that which has been taken into the possession of another. The former is the law of inoffensiveness; the latter is the law of abstinence. As a result of the Third Law, life is rendered secure; as a result of the Fourth Law, distinctions of ownership arise, together with the well-known concept of Mine and Thine.^g

      It was this concept that the ancients^h had in mind when they called Ceres “the Lawgiver” and spoke of her sacred СКАЧАТЬ