Commentary on the Law of Prize and Booty. Hugo Grotius

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       Prolegomena, Including Nine Rules and Thirteen Laws ¹

      Rule I

      Where should we begin, if not at the very beginning? Accordingly, let us give first place and pre-eminent authority to the following rule: What God has shown to be His Will, that is law. This axiom points directly [5′] to the cause of law, and is rightly laid down as a primary principle.^a

      It would seem, indeed, that the very term ius [law] is derived from Iovis [ Jove] and that the same process of derivation holds good for iurare [to swear] and iusiurandum [an oath] or Iovisiurandum [an oath in the name of Jove]. Alternatively, one might trace the development of these terms to the fact that the ancients designated as iusa^b—that is to say iussa [things commanded]—those precepts which we designate as iura [laws]. In any case, the act of commanding is a function of power, and primary power over all things pertains to God, in the sense that power over his own handiwork pertains to the artificer and power over inferiors, to their superiors.

      Ausonius^c has declared that, “Law is the unerring mind of God.” This was the sentiment that inspired Orpheus—and after him, all the old poets^a—to say that Themis and Diké [Right and Justice] were the judicial assessors of Jove; whence Anarchus has correctly inferred (even though he does put the conclusion to an improper use) that a given thing is just because God wills it, rather than that God wills the thing because it is just. According to the somewhat more subtle contention of Plutarch,^b however, the goddesses Right and Justice are not so much the assessors of Jove, as Jove himself is Right and Justice, and the most ancient and perfect of all laws. It is the latter view that Chrysippus also adopts^c when he asserts that Jove is the name given to “that force inherent in the constant and eternal law, which guides our lives, so to speak, and instructs us in our duties.”

      The law of nature

      The Will of God is revealed, not only through oracles and supernatural portents, but above all in the very design of the Creator; for it is from this last source that the law of nature is derived.^d Thus Cicero^e very wisely maintains that the study of celestial phenomena is beneficial in relation to justice, as well as in other ways, because the student “becomes acquainted with the will, plan and purpose of the Supreme Ruler and Lord, to whose nature (so say the philosophers) that true rational principle and sovereign law conform.” The following assertion made by Lucan,^f is also pertinent to this point: “And the Creator revealed to us once and for all, at our birth, whatever we are permitted to know.” According to Chrysippus,^g too (whom we quoted above), οὐ γάρ ἐστιν εὑρει̑ν τη̑ς δικαιοσύνης ἄλλην ἀρχὴν οὐδὲ ἄλλην γἑνεσιν, ἢ τὴν ἐκ του̑ Διὸς καὶ τὴν ἐκ τη̑ς κοινη̑ς φύσεως; “No beginning, no origin, can be assigned to justice other than its derivation from God and from the universal aspect of nature.”

      Therefore, since God fashioned creation and willed its existence, every individual part thereof has received from Him certain natural properties whereby that existence may be preserved and each part may be guided for its own good, in conformity, one might say, with the fundamental law inherent in its origin.^a From this fact the old poets and philosophers^b have rightly deduced that love, whose primary force and action are directed to self-interest, is the first principle of the whole natural order. Consequently, Horace^c should not be censured for [5′a] saying, in imitation of the Academics, that expediency might perhaps be called the mother of justice and equity. For all things in nature, as Cicero repeatedly insists, are tenderly regardful of self, and seek their own happiness and security. This phenomenon can be observed not only in the human race, but among the beasts also and even in connexion with inanimate objects, being a manifestation of that true and divinely inspired self-love^d which is laudable in every phase of creation. As for the φιλαυτία, which is classified as a vice—in other words, immoderate self-interest—it is an excess of such love. Thus Socrates (as quoted by Xenophon^e and Plato^f) and Diogenes,^g too, have correctly maintained that justice is a virtue which makes us useful to ourselves as well as to others, so that the just man will in no way inflict injury upon himself or upon any of his members, nor will he bring pain or distress upon himself. Plutarch^h expounds this doctrine admirably, illustrating it by means of a negative simile when he declares that justice is not like oil, which doctors describe as beneficial to the body externally but injurious internally, since the just man’s highest concern is for himself. Other authorities,^a distinguishing more subtly between terms, maintain that such concern is the function not so much of justice as of that love [for self] to which we are impelled by nature; but at the same time, they admit that in human affairs the first principle of a man’s duty relates to himself.

      In fact, all duty (according to the philosophers) consists in περὶ τά πως ἔχοντα πρὸς ἔμα̑ς, that is to say, in those things which in some way pertain to self. Such things, to be sure, fall under a twofold classification. For some concern us from the standpoint of good, others from the standpoint of evil, as is indicated, indeed, by the two mental attitudes of aversion and desire, attitudes implanted by nature not in man [5′ a′] alone, but in all living creatures.

      The particular aspect of duty that we are about to discuss, however, is bound up not with all goods and ills, but solely with those which men can either bestow upon or take from other men, including not only concrete goods and ills but also their external effects. For only these [transferable] things can enter into any comparison that seeks to establish how much a person owes to himself, and how much to his fellow man.

      Generally speaking, these good and evil things are likewise divided into two classes. The first and more important group consists of those which directly concern the body itself: for example, among the ills, death, mutilation of the members (which is akin to death) and disease; among the blessings, life with the body whole and healthy. The second group has to do with things existing outside of ourselves but neverthe-less beneficial or injurious, painful or pleasing, to us—such as, on the one hand, honour, riches, pleasure; and on the other hand, infamy, poverty, pain. Thus, when Plato^b says that justice is concerned with περὶ σώματος θεραπείαν, ἢ περὶ χρημάτων κτη̑σιν, that is to say, with the care of the body and the possession of property, he includes under the head of “property” the results consequent upon its possession.

      Law I

      Law II

      Accordingly, from this combination of concepts, two precepts of the [6] law of nature emerge:² first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious;^a secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. The latter precept, indeed, we shall interpret with Cicero^b as an admission that each individual may, without violating the precepts of nature, prefer to see acquired for himself rather than for another, that which is important for the conduct of life. Moreover, no member of any sect of philosophers, when embarking upon a discussion of the ends [of good and evil],³ has ever failed to lay down these two laws first of all as СКАЧАТЬ