Commentary on the Law of Prize and Booty. Hugo Grotius
Читать онлайн книгу.
and if the amount thus lost is taken from the debtor and given to the creditor,c that is true justice. Such justice requires that the thing taken shall be returned in the case of a theft just as in the case of a loan, and that, even as payment is made of a purchase price or of revenue from a contract, so also reparation for loss inflicted and satisfaction for injuries should be provided.
It sometimes happens, however, that things properly pertaining to the parts tend to affect the whole, even though they are not directed toward the whole as such. In these circumstances, one must weigh, not the merits of persons, but the value of the things or the force of the actions involved. This is the basis of rewards and punishments. For the whole world should be grateful to him who has bestowed a universal benefit. The devisers of useful inventions, for example, have received praise and honour from all mankind. Conversely, those persons who have inflicted universal injury, no less than those who have injured a single individual, ought to give proportionate satisfaction. In a sense, however, an injury inflicted even upon one individual is the concern of all, and this is true primarily because of the example set; just as it is the concern of the whole body that its various members should be sound, particularly as a guard against contagion.
Now it may seem strange, inasmuch as punishment is hurtful to the person on whom it is inflicted, that justice, which is motivated by solicitude for all, should be directed to the harm of any individual. In order to throw light on this point, it may be observed that no art ever sets up evil as its ultimate goal, and that nevertheless there are times when an art makes use of evil—though only in cases of necessity—as an intermediate measure without which good cannot be attained. Doctors will never inflict pain upon the sick, unless considerations of health demand that they do so; nor will they amputate any part of the body, save in the interest of the body as a whole. Thus pain and mutilation, originally evil in themselves, may assume the quality of goodness because they lead to a good greater than the one to which as evils they were diametrically opposed.
With a view to clarifying the foregoing simile (which is frequently employed in this connexion by the philosophers), we must draw a distinction between different kinds of punishment. Gelliusa has observed that there are three kinds according to Taurus, and two, according to Plato.b Taurus, however, included τιμωρίαν “vengeance,”8 which pertains properly to relations between individuals; so that only two kinds pertinent to the whole remain to be considered. Of these two, the first is chastisement, referred to by Taurus as νουθεσία [admonition], κόλασις [correction, punishment], or παραίνεσις [exhortation], and also, by Plato,c as εὐθύνη [a setting straight, correction]. Chastisement involves an attempt to correct the particular individual punished and also to [9] render him more useful to humanity. It is a form of θεραπευτικὸς τρόπος, or “curative procedure,” which operates (as Aristotled explains) through the application of opposites [e.g. by applying pain to remedy a condition arising from an excess of pleasure; or loss, to remedy the effect of excessive gain]. The second type of punishment is παράδειγμα, that is to say, exemplary punishment, which by arousing the fear of a like penalty deters others from sinning. This type is, so to speak, προφυλακτικὸς τρόπος, “a preventive procedure.” The first kind of punishment has as its aim the correction of one individual; the second kind is aimed at the correction of all other persons, in addition to that one. The attainment of these two objectives leads to a third: universal security. For if all persons conduct themselves aright, it necessarily follows that no one will suffer wrongfully.
These are the three ends sought by the law (so Senecaa says) in the punishment of wrongdoing: ends which coincide for the most part, and to such an extent, indeed, that even capital punishment, according to the Platonists,b is in a sense beneficial to the guilty parties, whenever there is no other remedy for their incurably diseased spirits. It is clear, then, that the following assertion made by Platoc is entirely true: οὐ γὰρ ἐπὶ κακῳ̑ δίκη γίγνεται οὐδεμία; “No legal punishment has evil as its aim.” As the Scholasticsd have maintained, it is not proper for the spirit of the avenger to dwell with pleasure upon any person’s ill fortune. According to the teachings of Seneca,e he who inflicts vengeance in the right way exacts punishment not eagerly and for its own sake, but because it behoves him to do so; not as if vengeance were sweet, but on the ground that it serves a useful purpose; not in anger, but in the exercise of caution. Such a person is intent upon future acts that can be averted, rather than upon acts that are past and irrevocable; and, as Platof observes, he imposes punishment not because sin has been committed but in order that its commission may be prevented. A part of these precepts regarding punishment is so necessary, indeed, that some personsg have described justice itself as τιμωρίας ἀπαίτησιν παρὰ τω̑ν προηδικηκότων, “the exaction of a penalty from those who have previously committed a wrongful act.” Such is the purport of the legal maxims, “Evil deeds ought not to go unpunished,” “Indulgence should not be shown to human wickedness,” and various similar sayings.
But that other law, [the Sixth,] regarding repayment for good deeds, is characterized by an equity no less manifest. We find this passage in Xenophon:a τί δἑ τοὺς εὐ̑ ποιου̑ντας, ἀντευεργετει̑ν οὐ πανταχου̑ νόμιμόν ἐστι; νόμιμον ἔφη; “‘Again, is it not the universal law, that we should repay with benefactions those persons who have deserved well of us?’ ‘To be sure, it is,’ said he.” The jurists,b too, hold that πρὸς [9′] ἀντίδωρα, “the obligation to repay,” is a natural obligation, and that it is unjust in the eyes of nature for one individual to be enriched at the expense of another, or for any person to suffer loss in consequence of his own good deed. Senecac declares that, “The maxim, ‘Repay what you owe,’ is just in the highest degree, and constitutes a pronouncement of the law of nations.” [10]
Liberty and ownership
However, since the exchange of good things is voluntary (as we have already pointed out), the extent of the credit involved is measured by the will of the creditor. For there is one kind of good that is so called in an absolute sense, and there is another kind that is good from the standpoint of a particular individual. Indeed, to borrow Aristotle’sd admirable explanation, ὅσα περὶ ἕκαστον νου̑ς ἀποδίδωσιν ἑκάστῳ του̑τ’ ἐστιν ἑκάστῳ ἀγαθόν; “Whatever each person’s understanding has ruled for him regarding a given matter, that to him is good.” For God created man αὐτεξούσιον, “free and sui iuris,” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own. Moreover, this view is sanctioned by the common consent of all nations. For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will?a And liberty in regard to actions is equivalent to ownership in regard to property.b Hence the saying: “Every man is the governor and arbiter of affairs relative to his own property.”c To be sure, one’s will may undergo change, but not to the extent of deceiving others;d that is to say, not to the extent of winning another person over to a state of credulous confidence advantageous or pleasurable to oneselfe but for the most part harmful to that other individual. For even if no additional injury is involved, it is in any case an evil to be deceived in one’s belief. Platof put this thought in the form of a question: τὸ ἐψευ̑σθαι τη̑ς ἀληθείας κακόν; [Or is it not an evil to be deceived concerning the truth?] Assuredly, no just man will be the cause of such an evil to his fellow man.
Rule III
From the foregoing considerations the rule of good faith is derived: What each individual has indicated to be his will, that is law with respect to him.g With this rule the old saying agrees, that no injuryh is committed against a person who is willing; as does