1. [Q XIV. Human, Jus Gentium. XV. XVI. The Hebrew Law does not bind us. XVII. Christian use of the Hebrew UESTIONS of Rights among citizens of the same State are settled by the instituted Law of the State; and therefore do not belong to our subject, which is, Rights by nature, not Rights by institution.] Between persons who are not bound by a common instituted Right, as those who have not yet formed a State; or between those who belong to different States-whether private persons, or kings, or those whose mutual Rights [and Obligations] resemble those of kings, such as Rulers of peoples, or free Peoples themselves-questions of Rights pertain either to time of war or time of peace. But war is undertaken for the sake of peace; and, on the other hand, there is no question of Rights which may not issue in war: hence we shall begin by Rights in war, or, as they are termed, Rights of War: and the consideration of War will lead us to the consideration of Peace, the end of war. II. 1 We have then to treat of War, and of the Rights of War. We must then ask, What is War? What are Rights? Cicero says that War is a contest or contention carried on by force. But usage applies the term, not to an action, [a contest,] but to a B state or condition: and thus we may say, War is the state of persons, contending by force, as such. Hence we do not exclude private* wars, which preceded public wars, and have the same origin as those. 2 The name, (Bellum,) comes from an old word Duellum, and implies the separation of two, (duo;) as peace is unity, when two are made one. So the Greek πόλεμος from πολύς, many. 3 The common use of the word War allows us to include Private War, though, used generally, it often means specifically public War. We do not say that war is a state of just contention, because precisely the point to be examined is, Whether there be just war, and What war is just. And therefore we must distinguish the subject, War, from the question which we examine concerning it. III. 1 By entitling our Treatise, Of the Rights of War, we mean, in the first place, to imply the discussion of the questions just stated, Whether any war is just, and What is just in war. For Rights, Jus, in this case, means only what is right, that is, just; and that, rather with a negative than a positive sense; so that that comes within the substantive Right, which is not unjust, or wrong. That is unjust which is contrary to the nature of a society of rational creatures. Cicero, Seneca, Florentinus, reason on the ground of man being intended by nature for society. [See the quotations.] 2 Society is either that of equals, as brothers, friends, allies; or it is unequal, as that of parent and child, master and servant, king and subjects, God and men: and what is just, is different in the two cases. We may call them respectively Equatorial Rights and Rectorial Rights. IV. Jus, Right, has another signification, derived from the former, as when we say my Right. In this sense Right is a moral Quality by which a person is competent to have or to do a certain thing justly. Right in this sense belongs to a person, though sometimes it follows a thing: as one piece of land may have a right of way, or other easement, over another piece of land. In this case the Right still belongs to a person, namely, to the person who possesses the first piece. Such rights are called real Rights in comparison with others which are merely personal. This moral quality, when perfect, is called facultas, a jural claim; when less perfect, aptitudo, a fitness, or moral claim. V. A Jural Claim, belonging to any one, the jurists call suum, his own thing. We shall call this hereafter a Right strictly speaking, or a Right proper. In including private, and excluding just, in his definition of war, Grotius seems to have in view the definition of Albericus Gentilis; "Bellum est contentio, publica, armata, justa." For reasons for preferring the latter definition, see Elements of Morality, Art. 1058. The rights of War, as understood in modern times, exclude private wars, or wars among subjects, and include the assertion of justice. If they did not, there would be no question of Rights. W. W. It includes, Power; whether over one's self, which is Liberty; or over another, which is Authority, for example, paternal, dominical (that of a master over a servant;) Ownership; whether full, as of Property; or less full, as of Compact, Pledge, Credit, to which corresponds Debt on the other side. VI. But this Right is again twofold: Vulgar, which exists for the purpose of private use; and Eminent, which is superior to vulgar Right, and is the right which the community has over persons and things for the sake of the common good. Thus the Royal authority has under it the paternal and dominical. So the power of ownership of the Sovereign over private property for the common good is greater than that of the private owners: so every one is more bound to the state in regard to public uses than to his private creditor. VII. A Fitness is what Aristotle calls ágíav, a moral desert, or claim. VIII. 1 A Jural Claim, or Right proper, belongs to Expletory Justice, or Justice proper. This is what Aristotle calls Contractual Justice; but the term is too narrow; for that the possessor of my thing should restore it to me, is not a matter of contract; and yet it belongs to this division. Elsewhere he calls it by a better name, Corrective Justice. A Moral Claim [sometimes called an Imperfect Right] belongs to Attributive Justice, which Aristotle calls Distributive Justice, the companion of the virtues which are useful to our neighbours, as liberality, mercy, directive prudence. 2 Aristotle says that Expletory Justice proceeds by arithmetical proportion, Attributive, by geometrical proportion; but this is not always true. The two differ, not in their rules, but in the matter about which they are concerned. A contract of partnership is ruled by expletory justice, but according to geometrical proportion; if there is only one person fit for an office, it is by attributive justice given to him alone, instead of reckoning proportion. 3 Equally erroneous is what others say, that Attributive Justice concerns things common or public; Expletory, private possessions. For if a man bestow his private property in legacies, he uses attributive justice; and the state, in paying what it owes to private citizens, uses expletory justice*. See the story in the Cyropædia, in which Cyrus is blamed for giving the big boy the larger coat, which belonged to the little boy: because his business was expletory, not attributive justice. IX. 1 Jus has a third signification, meaning Law in its largest sense, namely, "a Rule of moral acts obliging to what is right." "Obliging" is necessary to this signification: for mere Counsel or The remarks in the text go far to prove that the distinction of Contractual, Corrective, or Expletory justice, on the one hand, from Distributive or Attributive Justice on the other, is not tenable. W. W. Advice is not included in Jus or Law; and Permission is not Law, but the absence of Law, except so far as it obliges other persons not to impede. "Obliging to what is right," not to what is just; for Jus in this signification does not include strict Justice merely, but the matter of other virtues. Yet what is right is sometimes loosely called just. 2 The best distinction of Law in this general sense, is that of Aristotle, into Natural Law, and Voluntary or Legal Law [or Positive Law; dikalov puoikov and dikaιov voμikov, Eth. Nicom. v. 10,] or Instituted Law, Tò év Táget. The Hebrew has a like distinction. X. 1 Natural Law is the Dictate of Right Reason, indicating that any act, from its agreement or disagreement with the rational [and social*] nature [of man] has in it a moral turpitude or a moral necessity; and consequently that such act is forbidden or commanded by God, the author of nature. 2 Acts concerning which there is such a Dictate, are obligatory, [morally necessary,] or are unlawful, in themselves, and are therefore understood as necessarily commanded or forbidden by God; and in this character, Natural Law differs, not only from Human Law, but from Positive Divine Law, which does not forbid or command acts which, in themselves and by their own nature, are either obligatory or unlawful; but, by forbidding them makes them unlawful, by commanding them makes them obligatory. 3 In order to understand Natural Law, we must remark that some things are said to be according to Natural Law, which are not so properly, but, as the schools love to speak, reductively, Natural Law not opposing them; as we have said [III. 1] that some things are called just, which are not unjust. And again, by an abuse of expression, some things are said to be according to Natural Law which reason shews to be decent, or better than their opposites, though not obligatory. [As monogamy is better, though we cannot strictly say that polygamy is contrary to Natural Law. Concerning the use of the term Natural Law, or Law of Nature, in such cases, see E. M. 1054.] 4 It is to be remarked also that Natural Law deals not only with things made by nature herself, but with things produced by the act of man. Thus property, as it now exists, is the result of human will: but being once introduced, Natural Law itself shews that it is unlawful for me to take what is yours against your will. And thus Paulus says that theft is prohibited naturali jure; Ulpian says that it is naturâ turpe, bad by nature: Euripides says it is displeasing to God. 5 Natural Law is so immutable that it cannot be changed by God himself. For though the power of God be immense, there are some things to which it does not extend: because if we speak of those things being done, the words are mere words, and have no meaning, being self-contradictory. Thus God himself cannot make twice two * Added by Barbeyrac, from what follows XII. 1. See also above, III. 1. not be four; and in like manner, he cannot make that which is intrinsically bad, not be bad. For as the essence of things, when they exist, and by which they exist, does not depend on anything else, so is it with the properties which follow that essence: and such a property is the baseness of certain actions, when compared with the nature of rational beings. And God himself allows himself to be judged of by this rule. [See the quotations. The passage from Aristotle, Eth. Nicom. II. 6, is misapplied, as Barbeyrac observes.] 6 Yet sometimes, in acts directed by Natural Law, there is a seeming of change, which may mislead the unwary; when in fact it is not Natural Law which is changed, but the thing about which that Law is concerned. Thus if a creditor gives me a receipt for my debt, I am no longer bound to pay him; not that Natural Law has ceased to command me to pay what I owe, but because I have ceased to owe it. So if God command any one to be slain or his goods to be taken, this does not make lawful homicide or theft, which words involve crime: but the act will no longer be homicide or theft, being authorized by the supreme Lord of life and of goods. 7 Further; some things are according to Natural Law, not simply, but in a certain state of things. Thus a community in the use of things was natural till property was established; and the right of getting possession of one's own by force existed before instituted law. XI. 1 What the Roman lawbooks say of a law of nature which we have in common with animals, which they call more peculiarly jus naturæ, besides the natural law which we have in common with men, which they often call jus gentium, is of little or no use. For no creature is properly capable of Jus, which does not by nature use general precepts: as has been remarked by Hesiod, Cicero, Lactantius, Polybius. [See the quotations.] 2 If we ever assign justice to brute animals, it is improperly, when we see in them some shadow or vestige of reason. There being acts which we have in common with brutes, as the rearing of offspring, and others which are peculiar to us, as the worship of God, has no bearing on the nature of Jus. XII. 1 That there is such a thing as Natural Law, is commonly proved both a priori and a posteriori; the former the more subtle, the latter, the more popular proof. It is proved a priori by shewing the agreement or disagreement of anything with the rational and social nature of man. It is proved a posteriori when by certain or very probable accounts we find anything accepted as Natural Law among all nations, or at least the more civilized. For a universal effect requires a universal cause: now such a universal belief can hardly have any cause except the common sense of mankind. Hesiod, Heraclitus, Aristotle, Cicero, Seneca, Quintilian, agree that the consent of all nations is evidence of the truth. And Porphyry, Andronicus of Rhodes, Plutarch, Aristotle, agree that the more savage nations are of less weight in such an estimate. [See the quotations.] |