Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ and in this latter class, citizens, even when they are considered as individuals, are included. For citizens, according to Cicero,^b are servants of the law. Furthermore, as Aristotle^c explains, all that commands is a cause of virtue to that which obeys.^d Tacitus^e has in mind the same distinction when he says: “The gods have assigned to the prince the supreme power of judgement; to the subjects, the glory of obedience has been left.” Thus, with respect to subjects, that contention is true which Carneades and the Academic philosophers have mistakenly applied to all persons, namely, that justice is a matter of opinion, οὐ φύσει ἀλλὰ νόμῳ, “based not upon nature but upon law,” inasmuch as it consists in compliance with the established institutions of the various nations. By the 33 a] Peripatetics, this justice [characteristic of subjects] is described sometimes as “legal” and sometimes as “general,” because it can be ascribed to the same underlying principle as all the virtues, in so far as these are in conformity with some precept. The Scholastics add that, even as the phase of justice which relates to exchange takes its course between different parts of the whole, while distributive justice proceeds from the whole to the parts, so the phase to which we now refer consists in a process flowing from the parts to the whole. [33]

      Thus my original assertion—namely, that a war is not just even for subjects if it is repugnant to their reason^f—is equivalent to the opinion proclaimed by the theologians^g in the following terms: “Whatever does not have its origin in good faith, is sinful.” For, as the Scholastics^h observe, that act of volition is evil which is at variance with reason, even though reason be in error; and reason is indeed rebellious whenever it declares that the command of some state or magistrate, and consequently, the laws of the inferior orders, are in conflict with the laws of the superior orders and therefore unjust according to the Thirteenth Law. This point is convincingly confirmed by the rules from which the various laws are respectively derived. We are familiar with the saying, “It is better to obey God than to obey men,”^a a maxim which Ambrose^b adapts to our argument by offering this concrete example: “The Emperor Julian, although he was an apostate, nevertheless had Christian soldiers under him. When he said to those soldiers, ‘Advance your battle line for the defence of the state,’ they would obey him; but when he addressed them thus, ‘Advance your arms against the Christians,’ then they would recognize [only] the divine Commander.” For that matter, all of the jurists,^c too, declare that one ought not to obey a prince who is manifestly issuing an unjust command. Furthermore, they maintain that, in cases of wrongdoing, no one is excused on the ground that he is acting under command,^d since even a slave who obeys the order of a master engaged in piracy or in any like pursuit of a wrongful nature, is not immune from punishment.^e Again, Seneca^f has said: “For we may not command all things [from slaves]; nor are slaves compelled to obey in all things. They shall not execute commands adverse to the state, nor shall they lend a hand in any criminal act.” In a preceding passage, Seneca^g also points out that the relationship of a soldier to his general and that of a subject to his king, are the same as that of a slave to his master. Jerome^h [33 a′] adopts a similar view, saying, with reference to slaves and children: “They ought to be subject to their masters and parents only in those ways which are not contrary to the commands of God.” By the same [33] token, those persons are not free from guilt who allege as an excuse the fear either of death or of property losses, while they lend themselves as accomplices to some act known or suspected to be unjust. For [33′] fortitude, the companion of justice, decrees that it is better to endure evils of any kind rather than to concur in evil, as Augustine^a has observed in a similar connexion.

      On the other hand, when reason is not opposed, even a war which in itself involves an injury is not unjust from the standpoint of subjects.^b This principle (as Victoria^c maintains in his refutation of Adrian’s opinion) is applicable even in the case of subjects who are doubtful as to the justice [of a war]. For we have laid down a rule^d to the effect that “The authorities must be obeyed”; and no one may depart therefrom^e save through an application of the Thirteenth Law, whereas a person in doubt makes no such application. Neither is any obstacle presented by the precept, “Commit no act concerning which you are doubtful”; for he who is in doubt as to the justice or injustice of a war proclaimed by command, does not forthwith conceive an additional doubt as to whether or not obedience is due in doubtful cases. Moreover, while the foregoing argument is valid even in cases where reason fails in the sense that no definite decision is reached, the same argument will have far greater force when the reason of the subject favours the war, as it does quite properly in a great many instances.

      New explanation

      For right is based upon fact. And facts—that is to say, specific facts—are learned neither through art nor through science, which are of a purely universal nature. Again, very few facts are discernible through the senses, since we cannot be in more than one place at one particular time, and since the senses perceive only those things which are very close at hand. Yet there is no other way of attaining to true knowledge. Impelled thus by necessity, human reason has fashioned for itself certain rules of probability, or τω̑ν εἰκότων, for passing judgement in regard to facts. These rules consist of various προλήψεις, or (to use the Latin term) praesumtiones [preliminary assumptions], which are not fixed and unchangeable like scientific rules but rather of a character considered concordant in the greatest possible degree with nature; that is to say, on the basis of what commonly occurs, conclusions of a similar trend may be drawn.^a In this sense, a question of fact may be called conjectural. For, among the proofs which we accept in forming judgements, there is not one that is necessarily conclusive; on the contrary, all of them are derived from the aforesaid preliminary assumptions ὡς ἐπὶ τὸ πολύ, “based on what commonly occurs.”^b [34]

      Now, the primary principle among these assumptions of fact would seem to be our supposition that those inclinations which are in the highest degree natural (such as the inclinations toward the True and toward the Good), as well as the others derived therefrom, exist inherently in some measure within all things. Here we have the source of such concepts as assured belief in posterity, the beneficial nature of property ownership, the credibility of witnesses or documents, and the gravity of oaths. Moreover, not only does the rule of charity instruct us to think well of private individuals,^c but also (and this is a particularly important point) both reason and Holy Writ^d forbid disparagement of magistrates. For magistrates have the support of the weightiest preliminary assumptions, partly because of the oath they customarily take, partly as a result of the general consent expressed by the state and the testimonial of confidence given by the citizens, considerations of such a nature that anyone holding a different opinion in regard to these officials would not only be charging the magistrates themselves with treachery but would also condemn a vast multitude of persons on a charge of folly. For all such charges would be contrary to those natural impulses which I have called “inclinations.” Furthermore, if anyone who practises a particular profession or art is properly regarded as expert and painstaking in his special field,^a why, pray, should not magistrates be considered to have judged wisely (inasmuch as they are the Priests of Justice) concerning the cause of a war? For it is the function of a good magistrate to formulate such judgements. And when the magistrates hold that things justifying entry into war have befallen the citizens, why should not faith be placed in those authorities, as in persons who speak the truth?^b Yet again, why should it not be right to believe that the laws of an inferior order are in agreement with the higher laws, and that the commands of the magistrate are identical with the commands of God,^c whenever no obstacle exists to preclude such a belief? In short, subjects subordinate to a given state or magistrate occupy a position analogous to that occupied by children and slaves, who are subject respectively to the solemn patria potestas and to the power of the master.

      Nevertheless, when we append the condition that reason must not rebel, it should be understood that we are referring to reason guided by the weighing of probabilities. For neither crass ignorance (for example, ignorance of the natural law) nor lack СКАЧАТЬ