Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ much clearer light. For distributive justice allots public possessions to various owners on a comparative basis of individual merit, and assigns duties and burdens to the various citizens in accordance with the strength of each. Compensatory justice, on the other hand, is concerned not only with the preservation of equality among individuals, but also with the bestowal of appropriate honours and rewards upon deserving patriots, and with the punishment of persons who are injuring the community. Furthermore, this same form of justice shows us how acts directed to individuals are of interest to the whole, for it confers civic crowns as well as triumphal honours, and does not confine its public judgements to cases of high treason, but on the contrary demands punishment also for homicides, forgers, and similar malefactors. Such functions, of course, are in quite close accord with the law of the society founded by nature.

      Law VII

      Law VIII

      It seems, however, that there are laws peculiar to the civil covenant, which are derived from the three rules above stated and which extend beyond the laws already set forth, as follows: first, Individual citizens [11] should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals;^b secondly, Citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole. In relation to the former precept, Plato^c calls citizens βοηθούς, and in relation to the latter, he calls them κοινωνούς, that is to say, “auxiliaries” of one another, and “partners.”

      These two laws, then, are directed in a certain sense to the common good, though not to that phase of the concept with which the laws of the third order [Laws V and VI] are concerned, namely, the good of the different individuals composing the community. Laws VII and VIII relate rather to the common good interpreted as the good of the unit and therefore [in a subordinate sense] as one’s own. Accordingly, although the order of presentation of the first set of laws and of those following immediately thereafter has indicated that one’s own good takes precedence over the good of another person^a—or, let us say, it indicates that by nature’s ordinance each individual should be desirous of his own good fortune in preference to that of another, which is the purport of the proverbs, “I myself am my own closest neighbour,” γόνυ κνήμης ἔγγιον [My knee is closer than my shin], “My tunic is closer than my cloak”—nevertheless, in questions involving a comparison between the good of single individuals and the good of all (both of which can correctly be described as “one’s own,”^b since the term “all” does in fact refer to a species of unit), the more general concept should take precedence on the ground that it includes the good of individuals as well.^c In other words, the cargo cannot be saved unless the ship is preserved. Hierocles^d says: χρὴ τὸ κοινὸν του̑ κατ’ ἰδίαν μὴ χωρίζειν, ἀλλ’ ἒν ἔγει̑σθαι καὶ ταὐτόν, τό τε γὰρ τῃ̑ πατρίδι συμφἑρον κοινόν ἐστι καὶ τω̑ν κατὰ μἑρος ἑκάστῳ. “That which is public should not be separated from that which is private [. . .].⁹ For whatever is beneficial for one’s country [as a whole] is likewise of common [advantage] to the various parts thereof.” The speech of Pericles, as recorded by Thucydides,^e clarifies this very problem of why and to what extent private well-being is subordinate to public well-being. Pericles is represented as speaking thus:

      ἐγὼ γὰρ ἔγου̑μαι πόλιν πλείω ξύμπασαν ὀρθουμἑνην ὠφελει̑ν τοὺς ἰδιώτας, ἢ καθ’ ἕκαστον τω̑ν πολιτω̑ν εὐπραγου̑σαν, ἁθρόαν δὲ σφαλλομἑνην. καλω̑ς μὲν γὰρ φερόμενος ἀνὴρ τὸ καθ’ ἑαυτὸν, διαφθειρομἑνης τη̑ς πατρίδος, οὐδὲν ἡ̑σσον ξυναπόλλυται. κακοτυχω̑ν δὲ εὐ εὐτυχούσῃ, πολλῳ̑ μα̑λλον διασώζεται. ὁπότε οὐ̑ν πόλις μὲν τὰς ἰδίας ξυμφορὰς οἵα τε φἑρειν, εἱ̑ς δὲ ἕκαστος τὰς ἐκείνης ἀδύνατος, πω̑ς οὐ χρὴ πάντας ἀμύνειν αὐτῃ̑; καὶ μὴ, ὃ νυ̑ν ὑμει̑ς δρα̑τε, ται̑ς κατ’ οἰ̑κον κακοπραγίαις ἐκπεπληγμἑνοι του̑ κοινου̑ τη̑ς σωτηρίας ἀφίεσθε. 11 b]

       For it is my belief that private citizens, too, derive more benefit from a state which is successful as a whole, than from one where individual interests flourish but where the state itself, as an entity, is falling into ruin. For even he whose personal fortunes are well invested, must nevertheless perish if his country is destroyed; while on the other hand, if some individual within a prosperous state is not particularly fortunate, he is still far more likely to be preserved unharmed through the latter. Accordingly, since the state is undoubtedly able to endure the misfortunes of private citizens, whereas the citizen cannot in like manner endure public misfortune, how can it be otherwise than fitting that all persons take counsel together for the state and for its defence, instead of adopting the course which you now follow in betraying the commonwealth because you are stunned, so to speak, by your private losses?

      Livy^a summed up this view in the following concise statement: “While the state remains unharmed, it will easily answer for the safety of private property, too. In nowise will you be able to protect your own interests by betraying the public interest.” [11]

      Lex, properly so called

      Moreover, since it is the will involved that constitutes the measure of a good, as we have already pointed out, it follows that the will of the whole group prevails in regard to the common good, and even in regard to the good of individuals, in so far as the latter is subordinate to the former. For the individual members of the group have themselves consented to this arrangement, and one of the various attributes of free will is the power to accommodate one’s own will to that of another.^a The will of all, when applied to all, is called lex [statutory law]. This law proceeds from God, wherefore it is proclaimed to be^b εὕρημα καὶ δω̑ρον θεου̑, “the invention and gift of God.” It is approved by the common consent of all mankind, a point borne out by the words of Chrysippus: νόμος γὰρ τω̑ν φύσει πολιτικω̑ν ζώων προστατικός; “for lex is the guardian of those living beings who are by their natures adapted to civil life.”^c In short, lex rests upon the mutual agreement and the will of [11′] individuals, and with this fact in mind, Demosthenes and Plato sometimes refer to it as κοινὴ πόλεως συνθήκη, “the common pact of the state.”^d

      Rule IV

      Municipal law

      Thus, on the basis of the earlier rules, the following additional rule has developed: Whatever the commonwealth has indicated to be its will, that is law [ius] in regard to the whole body of citizens. This principle is the source of that branch of law described by the philosophers as θετικόν [positive], or νομικόν [conventional], or even ἴδιον [particular, domestic],¹⁰ and by the jurists as “municipal law.” It is law not in an absolute but in a relative sense.^e The distinction may be illustrated by means of the following analogy: if an ox is exchanged for a sheep, the objects exchanged are certainly not equal in themselves, СКАЧАТЬ