Commentary on the Law of Prize and Booty. Hugo Grotius
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dispose of a certain question regarding war, namely: Can any war be just? [14′]
To be sure, no one has ever succeeded in representing this as a doubtful issue without also rejecting a large part of Holy Writ, together with the supreme benefactions conferred by the Divine and Eternal Spirit, that is to say, civil order and the lawful authority of magistrates. In earlier times the Manichees were included in this subversive group, and even now there are persons who revive many errors of the Manichees, under a new name. The ignorant teachings of the Manichaean sect, however, both in regard to the question propounded above and on other matters, were refuted long ago by Augustine;a nor has our own age lacked authorities to beat back with unanswerable arguments the recrudescent tide of superstition released by fanatics.
In our opinion there is less need to refute the doctrines of such fanatics than there is to strengthen the stand taken by other persons, who do not profess the said doctrines but who nevertheless lack an adequate under-standing of the reason for adopting a different belief. Therefore, we shall elucidate this point, as follows.
Formal Exposition of Article I
He who wills the attainment of a given end, wills also the things that are necessary to that end.a God wills that we should protect ourselves, retain our hold on the necessities of life, obtain that which is our due, punish transgressors, and at the same time defend the state, executing its orders as well as the commands of its magistrates. All this is plainly revealed in the laws set forth in the preceding chapter.b But these divine objectives sometimes constitute causes for undertaking and carrying on war. In fact, they are of such a nature that it is very often impossible for us to attain them without recourse to warfare, as is indicated in the definition of war already formulated.c Just as a certain natural conflict is waged, so to speak, between dryness and moisture, or between heat and cold, so there is a similar conflict between justice and injustice. Indeed, factual evidence clearly shows that there are in existence many men of a bloodthirsty, rapacious, unjust, and nefarious disposition, traitors to their native lands and disparagers of sovereign power—men who are strong, too, and equipped with weapons—who must be conquered in battle (as Tacitus puts it) in order that they may be brought to book as criminals. Thus it is God’s Will that certain wars should be waged; that is to say (in the phraseology of the theologians),d certain wars are waged in accordance with God’s good pleasure. Yet no one will deny that whatsoever God wills, is just.e Therefore, some wars are just; or, in other words, it is permissible to wage war.
Nor is there even any pretext for objecting to these just wars. For the persons who hate war, base their hatred either upon its causes or upon its effects. The theologians and the philosophers have levelled many severe criticisms at such causes as ambition, avarice, and dissension; yet the same authorities, despite their censorious attitude towards un-just wars, do not by any means deny that certain wars are just. As for the critics whose condemnation of war is based upon its effects, such persons fall into the all-too-frequent error of failure to distinguish between τὸ καθ’ αὑτὸ καὶ τὸ κατὰ συμβεβηκός, “the essential and the [15] incidental.” For, granting that damage and destruction frequently occur in the course of a war even when it is justly waged, nevertheless, we cannot raise any objection on this ground, when those who are fighting for a righteous reason have as their purpose the conservation of their own lives and property. Every act should be judged by its essential nature, not on the basis of additional and extraneous factors. “Virtue is never increased by its consequences”;a neither, therefore, can it be impaired by its consequences. In other words, as the Stoicsb quite rightly taught, acts that spring from virtue should be deemed righteous in the light of their very inception and not because of their perfect execution. In so far as concerns the actual outcome in the majority of cases, however, it is permissible to assert that God customarily interposes His judgement in the fortunes of war in such a way that success falls not infrequently on the side where right also lies.
First Formal Exposition of Articles II and III
As for a certain fanciful belief entertained by some persons—namely, that warfare was formerly permissible but has become illicit since Christ propounded His teachings, or at least that this is the case as regards wars among Christians—that supposition might be viewed with tolerance if it were interpreted as meaning that there always exists in any war, on one side or the other, some guilt unworthy of the name of Christian; but in the present instance, when the said persons maintain that both sides are necessarily committing a sin, their contention is the height of absurdity.
For the law of nature—that is to say, the law instilled by God into the heart of created things, from the first moment of their creation, for their own conservation—is law for all times and all places,a inasmuch as the Divine Will is immutable and eternal. This is the conclusion reached by Socrates, as quoted in Plato’s Minos.b The validity of such law for all times is proclaimed by Sophocles,c when he says:
οὐ γάρ τι νυ̑ν τε κἀχθἑς, ἀλλ’ ἀεί ποτε
ζῃ̑ ταυ̑τα.
Not of to-day, nor yet of yesterday, Are these, [the laws of Heav’n,] but for all time.
Its validity for all places is recognized by Empedoclesd in these lines:
ἀλλὰ τὸ μὲν πάντων νόμιμον, διά τ’ εὐρυμἑδοντος
αἰθἑρος ἠνεκἑως τἑταται, διά τ’ ἀπλἑτου αἴης.
That law has common force and is upheld Throughout the far-flung heav’ns and earth’s vast realms.
But the law of war is a phase of the law of nature, a point supported by the foregoing discussion and correctly explained by Josephuse in the following statement: φύσεως γὰρ νόμος ἰσχυρὸς ἐν ἅπασι τὸ ζη̑ν ἐθἑλειν, διὰ του̑το καὶ τοὺς φανερω̑ς ἀφαιρουμἑνους ἔμα̑ς τούτου πολεμίους ἔγούμεθα. “For the law of nature is the law in force among all beings, which imposes upon them the will to live; and precisely herein lies our reason for regarding as enemies those persons who manifestly desire to deprive us of life.” Moreover, we see other living creatures similarly engaged in strife, impelled by a certain natural instinct and acting not [15′] only in defence of their lives but also for the sake of their conjugal companions (so to speak), their offspring, their homes, and their sustenance. Therefore, if this law is valid for all times, it is valid even for times after the advent of Christ; if it is valid for all places, it is valid even among Christians.a
Second Formal Exposition of Articles II and III
Let us demonstrate the same point in another way. That which is approved by the universal consent of all peoples is law for all and in regard to all. But war falls under this head; for any precept of the law of nature must necessarily be a precept of the law of nations, since it clearly enjoys the support of reason. Thus Hermogenianusb ascribes the authorization of wars to the law of nations; and Florentinusc derives from the same source authorization for the protection of one’s body and for the repulsion of all injuries. Baldus,d the finest philosopher among the jurists, adopts an identical view when he says that reason has recourse to arms whenever justice cannot be secure without arms. Furthermore, throughout the world, explored by now almost in its entirety, no nation has been found that does not regard as lawful the prosecution of its rights, even by armed force. What, indeed, is the nature of the threat to adversaries implicit in the ramparts of walled cities (so lofty even in times of peace!), in boundary fortifications, in the guards posted at city gates, if it be not the threat of war? But if the law in question exists for all and in regard to all, then it must surely exist even for Christians against Christians, since we certainly do not deny that the latter form a part of mankind, and since the logical principle involved is, moreover, the same, inasmuch as Christians both suffer and inflict injury—even,