Commentary on the Law of Prize and Booty. Hugo Grotius
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τὸν ξυνὸν καὶ τὸν ἴδιον, that is to say, a universal form of reason or understanding, and an individual form—he maintains that universal reason is the κριτήριον [criterion] and judge, so to speak, of truth, τὰ γὰρ κοινῃ̑ φαινόμενα πιστά, “on the ground that those things are worthy of faith which are commonly so regarded.” To this assertion he adds the following comment: τρἑφονται πάντες οἱ ἀνθρώπινοι νόμοι ὑπὸ ἑνὸς του̑ θείου; “All the laws of mortals rest upon one divine law.”f Thus a second rule is derived from the first, namely: What the common consent of mankind has shown to be the will of all, that is law.
Now, men agree most emphatically upon the proposition that it behoves us to have a care for the welfare of others; for the acceptance of this obligation might almost be termed a distinguishing characteristic of man. It is for this reason that the wise philosophy5 of Senecaa ascribes to the concept of good the quality of pertaining both to oneself and to others. Here we have the starting-point of that justice, properly so called, which Aristotleb and various writers have described as being concerned with the good of others, and which Ciceroc and Apuleiusd depict as “looking outwards.” Hesiode offers the following admirable comment on the same subject: [7]
Τόνδε γὰρ ἀνθρωποι̑σι νόμον διἑταξε Κρονίων,
Ἰχθύσι γὰρ καὶ θηρσὶ καὶ οἰωνοι̑ς πετεηνοι̑ς
Ἐσθἑμεν ἀλλήλους. ἐπεὶ οὐ δίκη ἐστὶ μετ’ αὐτω̑ν.
Ἀνθρωποι̑σι δ’ ἔδωκε δίκην, ἣ πολλὸν ἀρίστη.
For laws were giv’n to man by highest Jove. The beasts, forsooth, the fish, the birds that soar Feed on each other, ignorant of right; On us, however, justice—best of gifts— Hath been conferred. . . .
Senecaf has said: “Just as all the bodily members function in mutual harmony because it is to the advantage of the whole that the individual parts be preserved, even so mankind will show forbearance toward individuals because we are born for a life of fellowship. Society, too, can be kept safe from harm only by love and watchful care for its componentparts.” Elsewhere, hea declares that, “Security must be obtained by offering security in exchange.” Herein lies that brotherhood of man, that world state, commended to us so frequently and so enthusiastically by the ancient philosophers and particularly by the Stoics, whose view Cicerob adopts. This view is also the basis of the statement made by Florentinus,c namely, that because of a certain kinship established among us by nature, it is sinful that man should lie in ambush for his fellow man, a precept which Cicerod very properly ascribes to the law of nations.
The foregoing observations show how erroneously the Academics—those masters of ignorance—have argued in refutation of justice, that the kind derived from nature looks solely to personal advantage, while civil justice is based not upon nature but merely upon opinion; for they have overlooked that intermediate aspect of justice which is characteristic of humankind.e
Law III
Law IV
Accordingly, from the First and Second Rules two laws arise, relating to the good of others, whereby the preceding laws, which relate to one’s own good, are complemented and confined within just limits.f One of the two laws in question runs as follows: Let no one inflict injury upon his fellow. The other is the precept: Let no one seize possession of that which has been taken into the possession of another. The former is the law of inoffensiveness; the latter is the law of abstinence. As a result of the Third Law, life is rendered secure; as a result of the Fourth Law, distinctions of ownership arise, together with the well-known concept of Mine and Thine.g
It was this concept that the ancientsh had in mind when they called Ceres “the Lawgiver” and spoke of her sacred rites as “the Lawgiver’s festival,” intimating that the establishment of laws grew out of the division of lands. The principle underlying the Fourth Law is expounded by Quintiliana in the following terms: “If we accept the proposition that anything whatsoever that has fallen to man’s lot for his use, is the property of the person who has possession thereof, then assuredly it is a wrongful act to take away anything rightfully possessed.” In this principle of confidence, so to speak, lies the origin of human society, a way of living towards which, by the design of the Creator, man was more strongly impelled than any other living creature.b That social impulse was the source of τὰ ξυμβόλαια, that is to say, of reciprocal acts and sentiments, and of the intermingling of one’s own goods and ills with the goods and ills of others. From the same source arose the saying that man is a god or a wolf to his fellow man.
Consequently, we feel the need of that form of justice properly [8]6 known as ἀρετὴ κοινωνική, or “social virtue.”c Now, the good to which this social justice has reference is called “equality,” or ἰσονομία; the evil, “inequality,” or πλεονεξία. For just as in nature, so also in every society, that is good which is reduced in the greatest possible degree to unity; and unity connotes primarily identity, but also, in a secondary sense, equivalence, so that wherever the former quality cannot exist, the latter takes its place.
But there are two kinds of equivalence, based respectively on number and on proportion. For example, twenty exceeds fifteen, and ten exceeds five, by an equal numerical difference, that is to say, by five; whereas twenty exceeds ten, and ten exceeds five, in an equal proportional measure, or in other words, each by a half of itself. Number merely orders the parts in their relations with one another; proportion relates the parts to the whole.
Accordingly, those persons who are charged with the management of some whole, exercise proportional justice,a which may also be called “Justice the Allotter” [i.e. distributive justice]. In conformity with this phase of justice, the head of a household allots to its various members, shares measured and weighed in proportion to their different ages and conditions. The Universe is ordered in consonance with this same justice by God Himself, called by Plato “the Geometer,” precisely because He administers law and equity according to a certain principle of proportion, as the above-mentioned author explains in the Gorgias;b for the end sought by the geometrician is the reduction of all things to equality.
Law V
Law VI
The other kind of justice, which we now choose to designate as the Compensator [i.e. compensatory justice], is concerned not with communal affairs but with those peculiar to the individual. Thus compensatory justice does not relate the parts to the whole; that is to say, it weighs things and acts without regard for persons. The function of such justice is twofold, namely: in regard to good, the preservation thereof; in regard to evil, its correction. Hence these two laws arise: first, Evil deeds must be corrected; secondly, Good deeds must be recompensed (or, to use the Greek term, ἀντευποιητἑον).
For this process of relating the component elements to one another may be described as made up in part of the refluent action of the laws of the first order [Laws I and II], and in part of the outward-flowing action of the laws of the second order [Laws III and IV].7 In itself, the process is mutual and alternating. Here we have the origin of τὸ ἀντιπεπονθός, “retaliation”—or, in the language of the Scholastics, “restitution”—the task of compensatory justice. In accordance with this form of justice, he who has derived gain from another’s good deed repays that exact amount to the benefactor whose possessions have been diminished, while he who has suffered loss through the evil deed of another receives the exact equivalent of that loss from the malefactor whose possessions have been increased. Hence it follows that there are two kinds of obligation: