Commentary on the Law of Prize and Booty. Hugo Grotius
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11 b]
For it is my belief that private citizens, too, derive more benefit from a state which is successful as a whole, than from one where individual interests flourish but where the state itself, as an entity, is falling into ruin. For even he whose personal fortunes are well invested, must nevertheless perish if his country is destroyed; while on the other hand, if some individual within a prosperous state is not particularly fortunate, he is still far more likely to be preserved unharmed through the latter. Accordingly, since the state is undoubtedly able to endure the misfortunes of private citizens, whereas the citizen cannot in like manner endure public misfortune, how can it be otherwise than fitting that all persons take counsel together for the state and for its defence, instead of adopting the course which you now follow in betraying the commonwealth because you are stunned, so to speak, by your private losses?
Livya summed up this view in the following concise statement: “While the state remains unharmed, it will easily answer for the safety of private property, too. In nowise will you be able to protect your own interests by betraying the public interest.” [11]
Lex, properly so called
Moreover, since it is the will involved that constitutes the measure of a good, as we have already pointed out, it follows that the will of the whole group prevails in regard to the common good, and even in regard to the good of individuals, in so far as the latter is subordinate to the former. For the individual members of the group have themselves consented to this arrangement, and one of the various attributes of free will is the power to accommodate one’s own will to that of another.a The will of all, when applied to all, is called lex [statutory law]. This law proceeds from God, wherefore it is proclaimed to beb εὕρημα καὶ δω̑ρον θεου̑, “the invention and gift of God.” It is approved by the common consent of all mankind, a point borne out by the words of Chrysippus: νόμος γὰρ τω̑ν φύσει πολιτικω̑ν ζώων προστατικός; “for lex is the guardian of those living beings who are by their natures adapted to civil life.”c In short, lex rests upon the mutual agreement and the will of [11′] individuals, and with this fact in mind, Demosthenes and Plato sometimes refer to it as κοινὴ πόλεως συνθήκη, “the common pact of the state.”d
Rule IV
Municipal law
Thus, on the basis of the earlier rules, the following additional rule has developed: Whatever the commonwealth has indicated to be its will, that is law [ius] in regard to the whole body of citizens. This principle is the source of that branch of law described by the philosophers as θετικόν [positive], or νομικόν [conventional], or even ἴδιον [particular, domestic],10 and by the jurists as “municipal law.” It is law not in an absolute but in a relative sense.e The distinction may be illustrated by means of the following analogy: if an ox is exchanged for a sheep, the objects exchanged are certainly not equal in themselves, but equal merely in that the contracting parties have been pleased to make them so. Thus it is quite understandable that what would not otherwise be illicit should become so in this relative sense.f Nor is it strange that laws of the kind in question should change with their causea—that is to say, in accordance with the human will—while natural precepts, based as they are upon a constant cause, remain constant in themselves; or that the former should vary in different localities, since the various communities differ, of course, in their conception of what is good.
A Judgement [or Judicial Pronouncement]
The will of the whole, when applied to particular individuals with the public good in view, becomes a “judgement.” For, owing to the fact that men (repeatedly carried away not by true self-love but by a false and inordinate form of that sentiment, the root of every evil) were mistaking for equality that which was in point of fact disproportionate ownership, and because this false conception was giving rise to dissension and tumult, evils which it was important to avoid for the sake of concord and public tranquillity, the state intervened in the role of arbiter among the contending parties, and divided the various portions equitably. [11′ a] This is the point made by Democritusb when he says: οὐκ ἂν ἐκώλυον οἱ νόμοι τὴν ἕκαστον κατ’ ἰδίην ἐξουσίαν, εἰ μὴ ἕτερος ἕτερον ἐλυμαίνετο. φθόνος γὰρ στάσιος ἀρχὴν ἀπεργάζεται. “Assuredly, the laws would not have prohibited that each person should live in accordance with his own free will, had there been no tendency on the part of any man to injure his fellow. For it is ill will that paves the way for civil discord.” The origin of judgements, then, is the same as the origin of laws. For those persons are called “princes,”c
δικάσπολοι οἵ κε θἑμιστας
ἐκ Διὸς εἰρύαται.
Who to the nations of the world hand down The sacred laws of Jove. . . .
In like vein, the poet above quoted wrote:a
εἱ̑ς βασιλεὺς ᾡ̂ ἔδωκε Κρόνου παι̑ς ἀγκυλομήτεω
σκη̑πτρόν τ’ ἠδὲ θἑμιστας.
Let one king rule, he to whom Saturn gives The golden sceptre and the judge’s robe!
Yet another author has said:b
μεσταὶ δὲ Διὸς πα̑σαι μὲν ἀγυι̑αι,
πα̑σαι δ’ ἀνθρώπων ἀγοραί.
For Jove’s divinity fills all the towns And forums of mankind. [11]
Rule V
Accordingly, even though the precepts of nature permitted every individual to pronounce judgement for himself and of himself, it is clear that all nations deemed it necessary to institute some orderly judicial system, and that individual citizens gave general consent to this project. For the latter, moved by the realization that otherwise their own weakness would prevent them from obtaining their due, bound themselves to abide by the verdict of the state. Indeed, as is quite commonly acknowledged, the very nature of jurisdiction renders it absolutely impossible for any jurisdiction to be established save by general consent.c This fact is brought out by the following rule: Whatever the commonwealth has indicated to be its will, that is law for the individual citizens in their mutual relations.
A Judgement
Law IX
The Fifth Rule differs from the Fourth, in that a judicial pronouncement differs from a precept of municipal law. For such a pronouncement is law made applicable to a particular case. Therefore, in so far as municipal law is concerned, the precept of prime importance for the preservation of human society is the one that makes judicial procedure a [12] requisite. This precept runs as follows: No citizen shall seek to enforce his own right against a fellow citizen, save by judicial procedure.a
Now, the Ninth Law is applicable even to the state itself; for the state is obliged to proceed in accordance with judicial usage when involved in any contention with individuals.b Nevertheless, since the state has no superior, it is necessarily the judge even of its own cause. Thus the assertion made by Tacitusc was true, namely, that by a provision emanating from the Divine Will, the people were to brook no other judge than themselves.
Magistrates
In