Hugo Grotius: The Rights of War and Peace



[WAR IN RELATION TO LAW - HUGO GROTIUS - THE RIGHTS OF WAR AND PEACE]

THE law of nature is a dictate of right reason indicating that moral guilt or rectitude is inherent in any action according to its agreement or disagreement with our rational--and social--nature; and, consequently, that such an action is either forbidden or enjoined by God, the Author of our nature. The actions upon which such a dictate is given are in themselves either obligatory or unlawful, and must consequently be understood to be either commanded or forbidden by God Himself.

This natural law does not only respect such things as depend not upon human will, but also many things which are consequent to some act of that will. Thus, property, as now in use, was introduced by man's will, and, being once admitted, this law of nature informs us that it is a wicked thing to take away from any man against his will what is properly his own.

Wherefore Paulus, the civilian, says that theft is prohibited by the law of nature; Ulpian, that it is dishonourable by nature; and Euripides, that it is hateful to God. Furthermore, the law of nature is so unalterable that God Himself cannot change it. For though the power of God be infinite, yet there are some things to which this infinite power does not extend. For instance, as God Himself cannot effect that twice two should not be four, so neither can He effect that what is intrinsically evil should not be evil.

The Lawfulness of War

AMONG the first impressions of nature there is nothing repugnant to war; nay, all things rather favour it; for both the end of war--being the preservation of life or limbs, and either the securing or getting things useful to life--is very agreeable to those first motions of nature; and to make use of force in case of necessity is in no wise disagreeable thereunto, since nature has given to every animal strength to defend and help itself.

But right reason and the nature of society, which is to be examined in the second and chief place, do not prohibit all manner of violence, but only that which is repugnant to society--that is, which invades another's right; for the design of society is that everyone should quietly enjoy his own, with the help and by the united force of the whole community. It may be easily conceived that the necessity of having recourse to violent means for self-defence might have taken place, even though what we call 'property' had never been introduced. For our lives, limbs and liberties had still been properly our own and could not have been--without manifest injustice--invaded. So also to have made use of things then in common, and to have consumed them as far as nature required, had been the right of the first possessor; and if anyone had attempted to hinder him so doing, he had been guilty of a real injury.

Sovereignty and Right of Making War

LAWYERS do not agree whether in those cases wherein it is allowed that inferior magistrates have a right to take up arms such a war ought to be called 'public.' Indeed, if by 'public' we mean only what is done by virtue of a magistrate's power, no doubt such wars are 'public'; and therefore they that in such a case resist the magistrate are liable to the punishments due to those that rebel against their superiors.' But if 'public' be taken in a higher sense, for that which is regular, they are not public wars; because to render the idea complete there must be an express resolution of the sovereign and several other circumstances. Sovereign power is said to be that whose acts are not subordinate to another's authority, so that they cannot be invalidated at the pleasure of any other human will.

Here we must reject their opinion who will have the supreme power to be always, and without exception, in the people; so that they may restrain or punish their kings as often as they abuse their power. What mischief this opinion has occasioned, and may yet occasion, if once the minds of people are fully possessed with it, every wise man sees.

There are others who fancy to themselves a reciprocal dependence between the king and the people, so that, according to them, the people ought to obey the king while he makes a good use of his power; but likewise, when he abuses it, he becomes in his turn dependent on the people. Now, if by what they say they mean only that our duty to our sovereign does not oblige us to do anything manifestly unjust, they say but the truth; but this implies no right to compel the king or to command him.

Indeed, all men have naturally a right to secure themselves from injuries by resistance, as we said before. But civil society being instituted for the preservation of peace, there immediately arises a superior right in the state over us and ours, so far as is necessary for that end. Therefore the state has a power to prohibit the unlimited use of that right towards every other person, for maintaining public peace and good order, which doubtless it does, for if that promiscuous right of resistance should be allowed there would be no longer a state, but a multitude without union.

Rebellion Admissible in Extreme Cases

THOSE princes who depend on the people--whether they at first were established on that footing, or their authority was thus regulated by a subsequent agreement, as in Sparta--if they offend against the laws and the state, may not only be resisted by force, but, if it be necessary, may be punished by death. If a king or other prince has abdicated his power or manifestly abandoned it, we may thereafter do the same to him as to any private individual; but negligence in discharging the functions of government is not to be taken for a real abdication. If a king alienates his kingdom, or renders it dependent on any other power, he forfeits the crown. If a king shall aim at the ruin of his whole people he loses his kingdom.

Justifiable Causes of War

NOW, as many sources as there are of judicial actions, so many causes may there be of war. For where the methods of justice cease, war begins. Most men assign three just causes of war: self-defence, the recovery of one's own property, and punishment. If a man is assaulted in such a manner that his life shall appear in inevitable danger, he may not only make war upon, but very justly destroy, the aggressor; and from this instance, which everyone must allow us, it appears that such a private war may be just and lawful. I can by no means approve of what some authors have advanced, that by the law of nations it is permitted to take up arms to reduce the growing power of a prince or state, which, if too much augmented, may possibly injure us. In general, there is no just cause of war save injury done to rights of persons or property. International law, therefore, passes over into civil law, in many questions affecting possession or acquisition of rights, performance of contracts, or compensation for damage.

Property in the Sea

WE affirm that none can have property in the sea, whether taken in the whole, or in respect to its principal branches. The cause which obliged mankind to desist from the custom of using things in common has nothing to do in this affair; for the sea is of so vast an extent that it is sufficient for all the uses that nations can draw thence, either as to water, fishing, or navigation. It seems to appear that the property and dominion of the sea might belong to him who is in possession of the lands on both sides, though it be open higher up, as a gulf, or above and below, as a strait--provided it is not too great a part of the sea compared with the lands on both sides. But it must be owned that in all parts of the sea that were known in the time of the Roman Empire, from the first ages even down to the time of Justinian, it was the law of nations that no people whatever should claim a property in the sea.

Now, if a certain space of sea may be, as it were, an appurtenance to the ground of a private person, so far as it is shut up there, and so inconsiderable that it may be thought part of their ground, and if this be not repugnant to the law of nature, why may not a part of the sea, surrounded with land, belong to one or more nations who are in possession of the shores?

But it is here to be noted that if in any place this law of nations about the sea should not be received, or though it were, should be afterwards abolished, it does not follow that a people, merely because they are in possession of the lands, are likewise in possession of the sea enclosed in them. Nor is an international act sufficient in this case; but the taking possession must, by an overt act, be signified and made known. And if afterwards the possession, thus gained by right of prior occupancy, shall be quitted, then the sea returns to its original nature.

It is also certain that he who is in possession of any part of the sea cannot lawfully hinder unarmed ships from sailing there; since such a passage, even through another's country, cannot justly be hindered, though it be commonly less necessary and more dangerous.

Jurisdiction and National Continuity

PROPERTY and jurisdiction may entirely cease by being abandoned. But there is another manner of their lapsing, when the subject in which the jurisdiction, or property, is vested ceases to be and leaves no successor. The body politic becomes extinct, either when all its members are destroyed; or when its constitution is broken up (as when subjects either are disunited on account of pestilence, or sedition; or, again, are by force so scattered that they cannot reunite, which often happens in a war).

A people, too, may lose all or some of those rights which they had in common; and this happens either when everyone is brought into slavery, or when, though they retain their personal liberty, they are yet deprived of sovereignty.

But if a people only leave their former place, then, provided their political form continue, they do not cease to be a people. The type of government, whether monarchy, aristocracy, or democracy, does not affect the point.

Aliens and Alliances

A PERMANENT abode ought not to be refused to strangers who, being expelled their own country, seek refuge elsewhere, provided they conform to the law as established and all other provisions for the avoidance of sedition.

Concerning leagues, it is often disputed whether they may be lawfully made with those who are not of the true religion. In respect of the law of nature this involves no doubt. For such right of alliance is common to all men, so as to admit of no exception on account of religion. As there is no harm in doing good to infidels, so neither is there any in entreating their assistance.

Here, then, we have not a case of intrinsic or absolute evil. It must be weighed in regard to circumstances; for we ought to take precautions lest by our too intimate relations we bring scandal or infection on the weak.

On Punitive Wars

WE must also know that kings, and those who are invested with a power equal to that of kings, have a right to exact punishments, not only for injuries committed against themselves or their subjects, but likewise for those which are in any persons whatsoever grievous violations of the law of nature or of nations. For the liberty of consulting the benefit of human society by punishments, which at first was in every particular person, does now, since civil societies and courts of justice have been instituted, reside in those who are possessed of the supreme power--not as they have authority over others, but as they are in subjection to none.

On Mercenaries in an Unjust War

BUT as those alliances which are entered into with the promise of assistance in any war without regard to the cause are unlawful, so there is no course of life more abominable than that of soldiers, who, without considering the justice of the cause, fight for pay. Did they sell only their own lives it were no great matter; but they sell also the lives of many a harmless creature--as much more odious than hangmen, as it is worse to kill without a reason than with one. War is no fine employment; nay, it is so horrible a thing that nothing but absolute necessity, or true charity, can make it honourable.





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