Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ so grave? Tell me! It is my wish straightway to build Just wrath upon this knowledge. . . .

      Conclusion VI, Article I

      Therefore, in so far as concerns the persons who wage war voluntarily, that war has a just cause, wherein the said persons defend their lives or their property, or seek to recover the latter, or attempt to exact either payment of that which is due or punishment for wrongdoing.

      Having settled this point, we shall have no difficulty in solving the second problem. For whatever is subject to a given action or suffers the effects thereof, is also customarily regarded as subject-matter of that action. An example of such subject-matter, pertinent to the discussion of war, is to be found in the party against whom war is waged, or in other words, the enemy, although the latter term has an active as well as a passive connotation. For, in the natural order, when the agent acts with calorific force, it follows that the passive recipient of the act is [relatively] cold;^d and in precisely the same way, when it is evident that the belligerent waging a just war is acting with rightful force, it follows that the enemy against whom the just war is waged must necessarily be disposed in the opposite fashion. But we have already shown^e that the opposite of a right is a wrong. Therefore, in short, that party rightly becomes the passive subject of the said war, who is in his turn the perpetrator of a wrong.^a Augustine^b maintains that, “The injustice of the opposing party brings just wars upon him”; and the following pronouncement of the Emperor Leo^c is in accord with the statement formulated by Augustine: ὁ γὰρ τοι̑ς ἀδικήσασιν ἀνταμυνόμενος οὑ̑τος δίκαιος ἐστίν; “For he is just who inflicts vengeance upon those who have done an injury.”¹ The theologians,^d too, expressing themselves in their own manner, declare that, “A party properly disposed to be the passive subject of war, is a party unwilling to give satisfaction.”

      New explanation

      In order to expound this portion of our argument more accurately, however, we must explain the concept of “wrongs.”

      The expression “a wrong,” when opposed to “a right,” has three meanings, differentiated among the Greeks by the use of three separate terms, as we learn not only from the philosophers^e but also from Ulpian^f and Theophilus.^g Again, the same distinction is clearly revealed in The mistius’ speech to Valens and in the words of Gylippus as quoted by Diodorus.^h The Greek terms in question are, first, τὸ ἄδικον [wrong in the generic sense, that which is unrighteous or unjust]; secondly, [31] ἀδίκημα [intentional wrongdoing] which manifests itself in either of two aspects, ὕβρις καὶ ζημία [wanton violence, and damage], and thirdly, ἀδικία [habitual and characteristic wrongdoing, injustice]. Hieraxⁱ the philosopher, in his book on Justice, draws a neat distinction in regard to these three terms, observing that the first represents ἀποτἑλεσμα [completion or result], the second πρα̑ξις [action], and the third ἕξις [a habit or state of mind]; or in other words, an accomplished act or result,² the performance of an act and the disposition to act, concepts which differ from one another just as a completed picture, the act of painting and the art of painting differ. On the basis of the first concept, the term ἄδικόν τι πράσσοντες [persons through whom wrong is effected], is applied; on the basis of the second, ἀδικου̑ντες [intentional wrongdoers], and on the basis of the third ἄδικοι [unrighteous persons]. Now every instance of ἀδικία [or habitual and characteristic wrongdoing] carries with it an element of ἀδίκημα [intentional wrongdoing], and the latter always involves τὸ ἄδικον [generic wrong]; but the reverse need not be true. For although these concepts differ not at all in so far as concerns the person upon whom the injury is inflicted, nevertheless they do differ with respect to the person who is committing the injury. Thus ἀδικία [habitual and characteristic wrongdoing] cannot occur otherwise than ἐκ προαιρἑσεως, “by premeditated choice,” whereas ἀδίκημα [intentional wrongdoing] sometimes occurs apart from premeditation, though always with antecedent knowledge and volition, or ἑκοντί [voluntarily], that is to say, in circumstances indicating that the agent understands against whom, in what way, and for what reason he is acting, so that his own volition is indeed involved in the act. On the other hand, τὸ ἄδικον [generic wrong]—which the Scholastics^a call “material injustice,” as opposed to formal injustice, while Baldus^b describes it as “a factual fault,” distinguishing it thus from a conscious fault—can exist even in cases where the performance is not voluntary. “Mischances and mistakes” (ἀτυχήματα καὶ ἁμαρτήματα) both fall under this one head. To be sure, the latter type of wrong occurs when an act has its origin in the mind of the agent, though in such a way that he is somehow deceived; whereas mischances have some other origin, such as the fact that a weapon has slipped from one’s hand in crowded surroundings.

      The ancient authorities on Roman law^a placed every instance of τὸ ἄδικον [generic wrong] under the general head of noxa [harm, injury, offence], and to those particular cases which were free of τὸ ἀδίκημα [intentional wrongdoing], they applied the term pauperies [loss or damage inflicted without volition]. An animal, in that it lacks the rational faculty, does not act with wrongful intent.³ In other words, neither ἀδίκημα [intentional wrongdoing] nor ἀδικία [habitual and characteristic wrongdoing] can be ascribed to animals; for animals are not endowed with volition, and far less do they possess the power of premeditated choice. Nevertheless, they can bring about a wrong. For “wrong” is a general term, applicable even in cases where the agent has not willed to do harm, as is indicated by the Aquilian Law.^b

      Perhaps, then, we shall not err if we say that the Greek phrases τὸν ἄδικόν τι πράττοντα, τὸν ἀδικου̑ντα, τὸν ἄδικον, refer respectively to the man who brings about a wrong, the man who acts with wrongful intent (facere iniuria) and the man who acts as an unrighteous person. In direct contrast with these phrases, we have the following expressions: δίκαιόν τι πράττειν, δικαιοπραγει̑ν καὶ δικαίως πράττειν, “to bring about [31′] what is right,” “to act with righteous intent” (facere iure), and “to act as a righteous person.” The above-mentioned concepts can also be adapted to conform with the phraseology of Marcianus^c in his discussion of public prosecutions, so that the expression ἄδικόν τι πράττειν may be applied to one who brings about a wrong by chance, ἀδικει̑ν to one who does a wrong upon a sudden impulse, and ἀδικω̑ς πράττειν to one who acts habitually as a wrongdoer.

      Accordingly I maintain that in treating of wrongs, or injuries,⁴ per-petrated by the enemy, we include under this head even injuries that are not voluntarily inflicted. This point may be clarified as follows.

      Just as right has been shown to consist in that which accords with the First and Second Laws and also in that which accords with the Fifth and Sixth Laws, even so it may be shown that a wrong, or injury, is that which conflicts with the Second [Third]⁵ or Fourth Law, or with the Fifth or Sixth. For the laws of the first and second orders [Laws I and II, and Laws III and IV, respectively] are of an unmixed character, whereas those of the third order [Laws V and VI] have a mixed character and are therefore taken into consideration from two points of view [i.e. in connexion with both rights and injuries]. Thus, if any person threatens me with danger while he is dreaming (a supposition based upon actual occurrences, according to certain learned authorities^a) or, for that matter, while he is insane (as may happen at any time), there is no doubt but that I may rightly repel force with force, even to the point of slaying that person if no other way of ensuring my own safety is left open.^b СКАЧАТЬ