Commentary on the Law of Prize and Booty. Hugo Grotius

Чтение книги онлайн.

СКАЧАТЬ pleasure. Yet no one will deny that whatsoever God wills, is just.^e Therefore, some wars are just; or, in other words, it is permissible to wage war.

      Nor is there even any pretext for objecting to these just wars. For the persons who hate war, base their hatred either upon its causes or upon its effects. The theologians and the philosophers have levelled many severe criticisms at such causes as ambition, avarice, and dissension; yet the same authorities, despite their censorious attitude towards un-just wars, do not by any means deny that certain wars are just. As for the critics whose condemnation of war is based upon its effects, such persons fall into the all-too-frequent error of failure to distinguish between τὸ καθ’ αὑτὸ καὶ τὸ κατὰ συμβεβηκός, “the essential and the [15] incidental.” For, granting that damage and destruction frequently occur in the course of a war even when it is justly waged, nevertheless, we cannot raise any objection on this ground, when those who are fighting for a righteous reason have as their purpose the conservation of their own lives and property. Every act should be judged by its essential nature, not on the basis of additional and extraneous factors. “Virtue is never increased by its consequences”;^a neither, therefore, can it be impaired by its consequences. In other words, as the Stoics^b quite rightly taught, acts that spring from virtue should be deemed righteous in the light of their very inception and not because of their perfect execution. In so far as concerns the actual outcome in the majority of cases, however, it is permissible to assert that God customarily interposes His judgement in the fortunes of war in such a way that success falls not infrequently on the side where right also lies.

      First Formal Exposition of Articles II and III

      As for a certain fanciful belief entertained by some persons—namely, that warfare was formerly permissible but has become illicit since Christ propounded His teachings, or at least that this is the case as regards wars among Christians—that supposition might be viewed with tolerance if it were interpreted as meaning that there always exists in any war, on one side or the other, some guilt unworthy of the name of Christian; but in the present instance, when the said persons maintain that both sides are necessarily committing a sin, their contention is the height of absurdity.

      For the law of nature—that is to say, the law instilled by God into the heart of created things, from the first moment of their creation, for their own conservation—is law for all times and all places,^a inasmuch as the Divine Will is immutable and eternal. This is the conclusion reached by Socrates, as quoted in Plato’s Minos.^b The validity of such law for all times is proclaimed by Sophocles,^c when he says:

      οὐ γάρ τι νυ̑ν τε κἀχθἑς, ἀλλ’ ἀεί ποτε

       ζῃ̑ ταυ̑τα.

      Not of to-day, nor yet of yesterday, Are these, [the laws of Heav’n,] but for all time.

      Its validity for all places is recognized by Empedocles^d in these lines:

      ἀλλὰ τὸ μὲν πάντων νόμιμον, διά τ’ εὐρυμἑδοντος

       αἰθἑρος ἠνεκἑως τἑταται, διά τ’ ἀπλἑτου αἴης.

      That law has common force and is upheld Throughout the far-flung heav’ns and earth’s vast realms.

      But the law of war is a phase of the law of nature, a point supported by the foregoing discussion and correctly explained by Josephus^e in the following statement: φύσεως γὰρ νόμος ἰσχυρὸς ἐν ἅπασι τὸ ζη̑ν ἐθἑλειν, διὰ του̑το καὶ τοὺς φανερω̑ς ἀφαιρουμἑνους ἔμα̑ς τούτου πολεμίους ἔγούμεθα. “For the law of nature is the law in force among all beings, which imposes upon them the will to live; and precisely herein lies our reason for regarding as enemies those persons who manifestly desire to deprive us of life.” Moreover, we see other living creatures similarly engaged in strife, impelled by a certain natural instinct and acting not [15′] only in defence of their lives but also for the sake of their conjugal companions (so to speak), their offspring, their homes, and their sustenance. Therefore, if this law is valid for all times, it is valid even for times after the advent of Christ; if it is valid for all places, it is valid even among Christians.^a

      Second Formal Exposition of Articles II and III

      Let us demonstrate the same point in another way. That which is approved by the universal consent of all peoples is law for all and in regard to all. But war falls under this head; for any precept of the law of nature must necessarily be a precept of the law of nations, since it clearly enjoys the support of reason. Thus Hermogenianus^b ascribes the authorization of wars to the law of nations; and Florentinus^c derives from the same source authorization for the protection of one’s body and for the repulsion of all injuries. Baldus,^d the finest philosopher among the jurists, adopts an identical view when he says that reason has recourse to arms whenever justice cannot be secure without arms. Furthermore, throughout the world, explored by now almost in its entirety, no nation has been found that does not regard as lawful the prosecution of its rights, even by armed force. What, indeed, is the nature of the threat to adversaries implicit in the ramparts of walled cities (so lofty even in times of peace!), in boundary fortifications, in the guards posted at city gates, if it be not the threat of war? But if the law in question exists for all and in regard to all, then it must surely exist even for Christians against Christians, since we certainly do not deny that the latter form a part of mankind, and since the logical principle involved is, moreover, the same, inasmuch as Christians both suffer and inflict injury—even, at times, armed injury. For the term “Christians” is employed here with reference to the profession of that name, rather than to the imitation of Christ’s life which proves that we are truly Christians.^e Let us grant that we are brothers; but, unless I am mistaken, it is right that I should repulse with arms a brother who is eager to slay me and who is already brandishing his weapons!

      

      Formal Exposition of Article IV

      Therefore, according to every kind of law, it is permissible to wage war. For we have already made it sufficiently clear that warfare is compatible with divine law, that is to say, with the law of nature and the law of nations; and the precepts of these two bodies of law certainly cannot be invalidated by civil law.^a As Cicero^b observed, civil precepts do not necessarily form a part of the law of nations, but the precepts of the latter ought to be recognized as a part of civil law. For even citizens, since they are also human beings, should desire what all humanity desires; and as human beings, representing the handiwork of God, they are obliged to obey the dictates imposed by Him through nature. Furthermore, wars have a bearing not only upon the safety of individuals, but also upon the defence of the state and its magistrates. It is for this reason that there is no state which has refrained entirely from establishing some provision relative to the law of war. As a matter of fact, the most illustrious legislators have devoted a chief part of their labours to the task of decreeing rewards for the brave and punishments for the cowardly. Roman law, indeed, is justly regarded as having attained to the highest degree of perfection in the magnitude and long duration of its sway; and if we search this field for the authoritative opinions of jurists and the imperial regulations of the Caesars, we shall find whole chapters [16] “Concerning Captives and Postliminium,” “Concerning Military Matters,” and “Concerning Veterans,” as well as others dealing with the privileges accorded to soldiers.^c Again, if we turn to the papal Decrees,^d many of these will be found—whether issued by the pontiffs themselves or assembled from the statements of СКАЧАТЬ