Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ he who inflicts vengeance in the right way exacts punishment not eagerly and for its own sake, but because it behoves him to do so; not as if vengeance were sweet, but on the ground that it serves a useful purpose; not in anger, but in the exercise of caution. Such a person is intent upon future acts that can be averted, rather than upon acts that are past and irrevocable; and, as Plato^f observes, he imposes punishment not because sin has been committed but in order that its commission may be prevented. A part of these precepts regarding punishment is so necessary, indeed, that some persons^g have described justice itself as τιμωρίας ἀπαίτησιν παρὰ τω̑ν προηδικηκότων, “the exaction of a penalty from those who have previously committed a wrongful act.” Such is the purport of the legal maxims, “Evil deeds ought not to go unpunished,” “Indulgence should not be shown to human wickedness,” and various similar sayings.

      But that other law, [the Sixth,] regarding repayment for good deeds, is characterized by an equity no less manifest. We find this passage in Xenophon:^a τί δἑ τοὺς εὐ̑ ποιου̑ντας, ἀντευεργετει̑ν οὐ πανταχου̑ νόμιμόν ἐστι; νόμιμον ἔφη; “‘Again, is it not the universal law, that we should repay with benefactions those persons who have deserved well of us?’ ‘To be sure, it is,’ said he.” The jurists,^b too, hold that πρὸς [9′] ἀντίδωρα, “the obligation to repay,” is a natural obligation, and that it is unjust in the eyes of nature for one individual to be enriched at the expense of another, or for any person to suffer loss in consequence of his own good deed. Seneca^c declares that, “The maxim, ‘Repay what you owe,’ is just in the highest degree, and constitutes a pronouncement of the law of nations.” [10]

      Liberty and ownership

      However, since the exchange of good things is voluntary (as we have already pointed out), the extent of the credit involved is measured by the will of the creditor. For there is one kind of good that is so called in an absolute sense, and there is another kind that is good from the standpoint of a particular individual. Indeed, to borrow Aristotle’s^d admirable explanation, ὅσα περὶ ἕκαστον νου̑ς ἀποδίδωσιν ἑκάστῳ του̑τ’ ἐστιν ἑκάστῳ ἀγαθόν; “Whatever each person’s understanding has ruled for him regarding a given matter, that to him is good.” For God created man αὐτεξούσιον, “free and sui iuris,” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own. Moreover, this view is sanctioned by the common consent of all nations. For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will?^a And liberty in regard to actions is equivalent to ownership in regard to property.^b Hence the saying: “Every man is the governor and arbiter of affairs relative to his own property.”^c To be sure, one’s will may undergo change, but not to the extent of deceiving others;^d that is to say, not to the extent of winning another person over to a state of credulous confidence advantageous or pleasurable to oneself^e but for the most part harmful to that other individual. For even if no additional injury is involved, it is in any case an evil to be deceived in one’s belief. Plato^f put this thought in the form of a question: τὸ ἐψευ̑σθαι τη̑ς ἀληθείας κακόν; [Or is it not an evil to be deceived concerning the truth?] Assuredly, no just man will be the cause of such an evil to his fellow man.

      Rule III

      From the foregoing considerations the rule of good faith is derived: What each individual has indicated to be his will, that is law with respect to him.^g With this rule the old saying agrees, that no injury^h is committed against a person who is willing; as does also the traditional maxim that nothing else is so congruous with natural equity and the good faith of mankind, as is the observance of agreements which have been accepted among the various parties.ⁱ Thus Cicero,^j too, declares that good faith is the foundation of justice.

      Pacts

      But there is a difference between tacit indication of will and express indication thereof. Tacit indication is effected by giving any kind of sign; express indication, by the means which God granted to man alone for this very purpose, namely, the medium of speech.^k This gift is [10′] regarded as so sacred and inviolable an instrument for the interchange of blessings and the reciprocal intimation of human will that, in the eyes of all men, there is no more grievous disgrace than that attached to lying.^a Herein lies the origin of pacts, which is necessarily bound up with the Sixth Law, as has been indicated above. It was this law that Simonides had in mind when he proposed the following definition of justice: “To speak the truth, and to pay back what has been received.”^b The Platonists, moreover, frequently refer to justice as ἀλήθειαν, a term translated by Apuleius^c as “trustworthiness” [ fidelitas].

      The commonwealth and citizens

      When it came to pass, after these principles had been established, that many persons (such is the evil growing out of the corrupt nature of some men!) either failed to meet their obligations or even assailed the fortunes and the very lives of others, for the most part without suffering punishment—since the unforeseeing were attacked by those who were prepared, or single individuals by large groups—there arose the need for a new remedy, lest the laws of human society be cast aside as invalid.^d This need was especially urgent in view of the increasing number of human beings, swollen to such a multitude that men were scattered about with vast distances separating them and were being deprived of opportunities for mutual benefaction. Therefore, the lesser social units began to gather individuals together into one locality, not with the intention of abolishing the society which links all men as a whole, but rather in order to fortify that universal society by a more dependable means of protection, and at the same time, with the purpose of bringing together under a more convenient arrangement the numerous different products of many persons’ labour which are required for the uses of human life. For it is a fact (as Pliny^e so graphically points out) that when universal goods are separately distributed, each man’s ills pertain to him individually, whereas, when those goods are brought together and intermingled, individual ills cease to be the concern of any one person and the goods of all pertain to all. In this matter, too, as in every other, human diligence has imitated nature, which has ensured the preservation of the universe by a species of covenant binding upon all of its parts. Accordingly, this smaller social unit, formed by a general agreement for the sake of the common good^a—in other words, this considerable group sufficing for self-protection through mutual aid, and for equal acquisition of the necessities of life—is called a commonwealth [Respublica]; and the individuals making up the commonwealth are called citizens [cives].

      This system of organization has its origin in God the King, who rules the whole universe and to whom, indeed (so the philosophers^b declare) nothing achieved on earth is more acceptable than those associations and assemblies of men which are known as states [civitates]. According to Cicero,^c Jupiter himself sanctioned the following precept, or law: All things salutary to the commonwealth are to be regarded as legitimate and just.

      There is agreement on this point, moreover, among almost all peoples, for in every part of the world we find a division into just such united groups, with the result that persons who hold themselves aloof from this established practice seem hardly worthy to be called human beings. Thus one might almost say that the ultimate infamy is the condition described in the words^d ἀφρήτωρ, ἀθἑμιστος, ἀνἑστιος, “a lawless man, without tribe or hearth.”

      In addition to the common opinion of mankind, another factor has played a part: the will of СКАЧАТЬ