Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ whatsoever that has fallen to man’s lot for his use, is the property of the person who has possession thereof, then assuredly it is a wrongful act to take away anything rightfully possessed.” In this principle of confidence, so to speak, lies the origin of human society, a way of living towards which, by the design of the Creator, man was more strongly impelled than any other living creature.^b That social impulse was the source of τὰ ξυμβόλαια, that is to say, of reciprocal acts and sentiments, and of the intermingling of one’s own goods and ills with the goods and ills of others. From the same source arose the saying that man is a god or a wolf to his fellow man.

      Consequently, we feel the need of that form of justice properly [8]⁶ known as ἀρετὴ κοινωνική, or “social virtue.”^c Now, the good to which this social justice has reference is called “equality,” or ἰσονομία; the evil, “inequality,” or πλεονεξία. For just as in nature, so also in every society, that is good which is reduced in the greatest possible degree to unity; and unity connotes primarily identity, but also, in a secondary sense, equivalence, so that wherever the former quality cannot exist, the latter takes its place.

      But there are two kinds of equivalence, based respectively on number and on proportion. For example, twenty exceeds fifteen, and ten exceeds five, by an equal numerical difference, that is to say, by five; whereas twenty exceeds ten, and ten exceeds five, in an equal proportional measure, or in other words, each by a half of itself. Number merely orders the parts in their relations with one another; proportion relates the parts to the whole.

      Accordingly, those persons who are charged with the management of some whole, exercise proportional justice,^a which may also be called “Justice the Allotter” [i.e. distributive justice]. In conformity with this phase of justice, the head of a household allots to its various members, shares measured and weighed in proportion to their different ages and conditions. The Universe is ordered in consonance with this same justice by God Himself, called by Plato “the Geometer,” precisely because He administers law and equity according to a certain principle of proportion, as the above-mentioned author explains in the Gorgias;^b for the end sought by the geometrician is the reduction of all things to equality.

      Law V

      Law VI

      The other kind of justice, which we now choose to designate as the Compensator [i.e. compensatory justice], is concerned not with communal affairs but with those peculiar to the individual. Thus compensatory justice does not relate the parts to the whole; that is to say, it weighs things and acts without regard for persons. The function of such justice is twofold, namely: in regard to good, the preservation thereof; in regard to evil, its correction. Hence these two laws arise: first, Evil deeds must be corrected; secondly, Good deeds must be recompensed (or, to use the Greek term, ἀντευποιητἑον).

      For this process of relating the component elements to one another may be described as made up in part of the refluent action of the laws of the first order [Laws I and II], and in part of the outward-flowing action of the laws of the second order [Laws III and IV].⁷ In itself, the process is mutual and alternating. Here we have the origin of τὸ ἀντιπεπονθός, “retaliation”—or, in the language of the Scholastics, “restitution”—the task of compensatory justice. In accordance with this form of justice, he who has derived gain from another’s good deed repays that exact amount to the benefactor whose possessions have been diminished, while he who has suffered loss through the evil deed of another receives the exact equivalent of that loss from the malefactor whose possessions have been increased. Hence it follows that there are two kinds of obligation: in the terminology of the philosophers^a ἑκούσιον καὶ ἀκούσιον, “voluntary and involuntary”; in that of the jurists,^b obligation ex contractu [i.e. arising from a contract] and obligation ex delicto [8′] [i.e. arising from wrongdoing]. In both cases, the person who has gained is regarded as the debtor and he who has lost as the creditor, the former having been enriched by the precise amount of the latter’s impoverishment; and if the amount thus lost is taken from the debtor and given to the creditor,^c that is true justice. Such justice requires that the thing taken shall be returned in the case of a theft just as in the case of a loan, and that, even as payment is made of a purchase price or of revenue from a contract, so also reparation for loss inflicted and satisfaction for injuries should be provided.

      It sometimes happens, however, that things properly pertaining to the parts tend to affect the whole, even though they are not directed toward the whole as such. In these circumstances, one must weigh, not the merits of persons, but the value of the things or the force of the actions involved. This is the basis of rewards and punishments. For the whole world should be grateful to him who has bestowed a universal benefit. The devisers of useful inventions, for example, have received praise and honour from all mankind. Conversely, those persons who have inflicted universal injury, no less than those who have injured a single individual, ought to give proportionate satisfaction. In a sense, however, an injury inflicted even upon one individual is the concern of all, and this is true primarily because of the example set; just as it is the concern of the whole body that its various members should be sound, particularly as a guard against contagion.

      Now it may seem strange, inasmuch as punishment is hurtful to the person on whom it is inflicted, that justice, which is motivated by solicitude for all, should be directed to the harm of any individual. In order to throw light on this point, it may be observed that no art ever sets up evil as its ultimate goal, and that nevertheless there are times when an art makes use of evil—though only in cases of necessity—as an intermediate measure without which good cannot be attained. Doctors will never inflict pain upon the sick, unless considerations of health demand that they do so; nor will they amputate any part of the body, save in the interest of the body as a whole. Thus pain and mutilation, originally evil in themselves, may assume the quality of goodness because they lead to a good greater than the one to which as evils they were diametrically opposed.

      With a view to clarifying the foregoing simile (which is frequently employed in this connexion by the philosophers), we must draw a distinction between different kinds of punishment. Gellius^a has observed that there are three kinds according to Taurus, and two, according to Plato.^b Taurus, however, included τιμωρίαν “vengeance,”⁸ which pertains properly to relations between individuals; so that only two kinds pertinent to the whole remain to be considered. Of these two, the first is chastisement, referred to by Taurus as νουθεσία [admonition], κόλασις [correction, punishment], or παραίνεσις [exhortation], and also, by Plato,^c as εὐθύνη [a setting straight, correction]. Chastisement involves an attempt to correct the particular individual punished and also to [9] render him more useful to humanity. It is a form of θεραπευτικὸς τρόπος, or “curative procedure,” which operates (as Aristotle^d explains) through the application of opposites [e.g. by applying pain to remedy a condition arising from an excess of pleasure; or loss, to remedy the effect of excessive gain]. The second type of punishment is παράδειγμα, that is to say, exemplary punishment, which by arousing the fear of a like penalty deters others from sinning. This type is, so to speak, προφυλακτικὸς τρόπος, “a preventive procedure.” The first kind of punishment has as its aim the correction of one individual; the second kind is aimed at the correction of all other persons, in addition to that one. The attainment of these two objectives leads to a third: universal security. For if all persons conduct themselves aright, it necessarily follows that no one will suffer wrongfully.

      These are the three ends sought by the law (so Seneca^a says) in the punishment of wrongdoing: ends which coincide for the most part, and to such an extent, indeed, that even capital punishment, according to the Platonists,^b is in a sense beneficial to the guilty parties, whenever there is no other remedy for their incurably diseased spirits. СКАЧАТЬ