ON THE LAW OF WAR AND PEACE
Source: Hugo Grotius, On the Law of War and Peace, translated and abridged by A.C. Campbell, A.M., Batoche Books, Kitchener 2001.
We should not by any means accept the truth of what this philosopher says, nor of what Horace said in imitation, Nature itself will not split wrong from right.
For though man is an animal, he is one of a special kind, further removed from the rest than each of the other species is from one another – for which there is testimony from many actions unique to the human species. Among the things which are unique to man is the desire for society [appetitus societatis], that is, for community with those who belong to his species – though not a community of any kind, but one at peace, and with a rational order [pro sui intellectus modo ordinatae]. Therefore, when it is said that nature drives each animal to seek its own interests [utilitates], we can say that this is true of the other animals, and of man before he came to the use of that which is special to man [antequam ad usum eius quod homini proprium est, pervenerit]; though we should also make this exception in the case of the other animals, that their pursuit of their own interests is tempered by a regard partly for their own offspring, and partly for the other members of their species.
We believe that this proceeds in their case from some extrinsic principle of intelligence, since a similar intelligence does not appear in other actions of theirs which are equally difficult. In the case of men, however, when they perform such actions, it is reasonable to suppose that they stem from some internal principle, which is associated with qualities belonging not to all animals but to human nature alone. This care for society in accordance with the human intellect, which we have roughly sketched, is the source of ius, properly so called, to which belong abstaining from another’s possessions, restoring anything which belongs to another (or the profit from it), being obliged to keep promises, giving compensation for culpable damage, and incurring human punishment. From this concept of ius arises another and more extensive one.
Since men not only have this social instinct [vim socialem] more than other animals, but also possess the capacity to assess pleasures or pains [quae delectant aut nocent], both immediately and in the future, and to make judgments about what will conduce to them; we should understand that it is appropriate to human nature rationally [pro humani intellectus modo] to
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follow good judgment in these matters, and not be disturbed by fear or the lure of immediate pleasure, and that whatever is plainly contrary to good judgment is also contrary to the law of nature (that is, of human nature).
As a result it behooves us when distributing resources responsibly to individuals or groups to ensure that we give more weight to the intelligent [sapiens] than to the less intelligent, more to a neighbor than to a stranger, and more to the poor than to the rich, as their conduct and the nature of the case requires. In the past many people took this to be part of ius properly and strictly so called, whereas ius accurately understood is very different in its character, as it consists in refraining from taking what belongs to another person, or in fulfilling some obligation to them.
What I have just said would be relevant even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to him: the contrary of which on the one hand is borne in upon us (however unwilling we may be) by an innate light in our soul, and on the other is confirmed by many arguments and by miracles witnessed down the ages. It follows that without exception we should obey God as our creator to whom we owe everything, especially as he has revealed himself repeatedly as the best and most powerful being, who can give his followers great and eternal rewards; and we ought to believe that he wishes to do so all the more if he has promised it in so many words:
which we Christians, following the ancient Hebrews, believe on the basis of unquestionable trust in the testimonies of his will.
The free will of God gives rise to another ius in addition to that of nature, and our reason [intellectus] irrefutably tells us that we should submit to it.
Moreover, despite the fact that natural ius, with which I am concerned, whether we think of it as the basis of society or take it more loosely [sive illud sociale, sive quod laxius ita dicitur], necessarily derives from intrinsic principles of a human being [ex principiis homini internis necessario profluit], it can also justly be attributed to God, since he willed that there should be such principles in us. It was in this sense that Chrysippus and the Stoics said that one should simply seek the origin of ius in Jove himself. The word ius in Latin indeed probably comes from the name Iovis. Among men our parents are like Gods of a kind, to whom not infinite but appropriate honor is due.
Now, since it is part of the ius naturae that we keep our promises (for it was necessary that men should have some way of obliging themselves, and no other natural means can be conceived), civil laws [iura civilia] stem from the same source. For when people form themselves into a society [coetus]
or subject themselves to some man or men, they have either expressly promised, or should be presumed from the nature of the arrangement to have tacitly promised, that they will agree with whatever the majority of the society, or the bearers of authority in it, have decided upon.
Hugo Grotius, On the Law of War and Peace
Accordingly, what not Carneades alone but others as well have said, Utility [utilitas] might be called the mother of justice and equity, is not true, if we speak accurately: for human nature itself is the mother of natural law, as it drives us to seek a common society [societatem mutuam] even if there is no shortage of resources: the mother of civil law is the obligation which arises from agreement, and since that gets its force from natural law, nature can be termed the grandmother of civil law.
But utility is annexed to the natural law: the author of nature willed that as individuals we should be weak and in need of many things if we are to lead a good life, in order that we should be all the more impelled into living in society; and utility is the occasion of civil law [iuri autem civili occasionem dedit utilitas], since what I have termed association or subjection originally came into existence for the sake of some interest [utilitatis]. It is also the case that anyone who prescribes laws for other people usually does so with a view to increasing utility, or at least ought to do so. But just as the laws of each state [civitas] consult the utility of that state, so there could be (and indeed there seem actually to be) laws between states – either between all states or between a number of them – which consult the utility not of the individual societies but of their totality. This is what is termed “the law of nations,”
insofar as we distinguish that law from the law of nature.
Carneades omitted this kind of law when he categorized all laws as either the laws of nature or those of particular nations, though since he was dealing with the law which governs international relations (for the subject of his lecture was “war and its consequences”), he ought to have dealt with it above all. So Carneades was wrong when he stigmatized justice with the name of irrationality: for just as on his own account a citizen is not irrational who obeys the civil law of his state, even though doing so may require the citizen to forgo some personal benefit, so a nation is not irrational if it does not pursue its own interest at the expense of the common laws of nations.
The reasoning is the same in each case: a citizen who breaks the civil law for the sake of some immediate interest will thereby undermine his own and his descendants’ permanent interests, and a nation which violates the laws of nature and nations will have renounced its right [rescindit munimenta]
subsequently to live in peace. So even if no benefit is to be expected from obedience to a law, it is wise and not irrational to do what we feel we are led to by our nature.
By the same token, it is not invariably true that We ought to say that from fear of injustice came laws; or, as Plato puts the same thought, laws were invented from a fear of suffering injury, and it was violence which got men to cultivate justice. Strictly speaking, this applies only to those practices [instituta] and laws which were devised to help with instituting relationships of justice:
many people who were individually weak got together to found and maintain
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with their collective strength a legal system [iudicia], so that they would not be oppressed by the more powerful, and that what they could not achieve separately would be within their power as a community. It is in this sense that it can reasonably be said that what is right is what benefits the most powerful, when we understand that a system of right can secure its external objective only with the help of force. Moreover, laws can still have an effect even without any violence annexed to them. For justice leads to a secure conscience, while injustice leads to the torment and laceration which Plato depicts in the hearts of tyrants; the common consent of upright people approves of justice and condemns injustice; and, most importantly of all, God is hostile to injustice and a friend to justice. […]
The existence of the Law of Nature is proved by two kinds of argument, a priori, and a posteriori, the former a more abstruse, and the latter a more popular method of proof. We are said to reason a priori, when we show the agreement or disagreement of any thing with a reasonable and social nature;
but a posteriori, when without absolute proof, but only upon probability, any thing is inferred to accord with the law of nature, because it is received as such among all, or at least the more civilized nations. For a general effect can only arise from a general cause. Now scarce any other cause can be assigned for so general an opinion, but the common sense, as it is called, of mankind.
[…]
It is another Question, Whether we have a just Cause for War with another Prince, in order to relieve his Subjects from their Oppression under him.
True it is, that since the Institution of Civil Societies, the Governors of every State have acquired some peculiar Right over their respective Subjects. […]
But those reasons may take place where Subjects are really in Fault, or, if you please, when it is uncertain whether they are or no. For to this End was the Distribution of Empires first made.
But if the injustice be visible, as if a Busiris, a Phalaris, or a Thracian Diomedes exercise such Tyrannies over Subjects, as no good Man living can approve of, the Right of human Society shall not be therefore excluded.