[1] OF THE

RIGHTS OF WAR AND PEACE.

BOOK I.

CHAPTER I.

What is War. What are Rights.

I. [QUESTIONS 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 2state 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.

3 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;)

It includes, 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 ἀξίαν, 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 more Counsel or 4Advice 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; δίκαιον φυσικὸν and δίκαιον νομικὸν, Eth. Nicom. v. 10,] or Instituted Law, τὸ ἐν τάξει. 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. ⟦1st ed.: 1142⟧]

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 5not 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.]

6 XIII. Thus much of Natural Law; next of Positive or Instituted Law. [See Sect. x. 2.] And this is either Human or Divine.

XIV. 1 Of Human [instituted] Law, first, as more widely known.

This is either the Civil Law, [that is, the National Law,] or Law in a narrower, or in a wider sphere.

The Civil Law is that which governs the State, (Civitas).

The State, (Civitas) is a perfect [that is, independent] collection of free men, associated for the sake of enjoying the advantages of jus, and for common utility.

Law in a narrow sphere, and not derived from the State, though subject to it, is various, as paternal precepts, the commands of a master, and the like.

Law in a wider sphere is Jus Gentium, the Law of Nations, that Law which has received an obligatory force from the will of all nations, or of many.

I have added “or of many,” because scarce any Law is found, except Natural Law, (which also is often called Jus Gentium,) common to all nations. Indeed that is often Jus Gentium in one part of the world which is not so in another; as we shall shew when we come to speak of captivity and of postliminium.

2 This Jus Gentium, Law of Nations, is proved in the same manner as the unwritten Civil Law, by constant usage, and the testimony of those who have made it their study. It is, as Dio Chrysostom says, the invention of life and of time. And here the best historians are a great help to us^*.

XV. 1 What is Divine [instituted] Law is sufficiently apparent from the term itself; namely, that which has its origin from the Divine Will; by which character it is distinguished from Natural Law, which also may be called Divine, [but which is independent: see § x. 5]. In such Law it may be said, but with reserve, that God did not command the act because it was just, but that it was just because God commanded it.

2 This Law is given either to the whole human race, or to one nation. To the human race, the Law has thrice been given by God; at the Creation; immediately after the Deluge, and at the coming of Christ. These three sets of Laws oblige all men, as soon as they acquire a sufficient knowledge of them.

XVI. 1 There is one nation in particular to which god has especially given his Laws, namely, the Hebrew People. See Deut. iv. 7; Psalm cxlvii.

2 It is erroneous to suppose (as some Jews have done) that those of other nations, in order to be saved, must submit to the Jewish law. For the law does not oblige those to whom it is not given; and it tells us itself to whom it is given, by saying, “Hear, O Israel.” And the 7Jews are perpetually spoken of as under a special covenant, and chosen to be a peculiar people of God; as Maimonides proves from Deut. xxxiii. 4.

3 There were however always living among the Jews certain “devout persons,” as the Syrophœnician woman, Cornelius, the “devout Greeks” (Acts xvii. 4), who are also spoken of in various passages of the Old Testament [see the references]. These, as the Jewish doctors teach, were bound to obey the laws given to Adam and to Noah, to abstain from idols and from blood, and some other matters; but not to observe the peculiar Jewish laws: except that some laws expressly direct that not only the Jew, but the stranger within his gate should be bound by them: [as the law of the Sabbath: Exod. xx. 10].

4 It was also permitted to strangers to worship and to sacrifice in the temple; but standing in a peculiar place, separate from the place of the Israelites.

The prophets speaking to strangers; Elisha to Naaman, Jonah to the Ninevites, Daniel to Nebuchadnezzar, and other prophets to the Tyrians, Moabites, and Egyptians; never say that they were required to submit to the Law of Moses.

5 The same is true of circumcision; with this difference, that the Law of Moses bound the Israelites only, the law of circumcision, all the posterity of Abraham; whence the Jews imposed circumcision on the Idumeans. Therefore the other peoples who used circumcision were probably descended from Ishmael or from Esau, or from Keturah [Abraham’s wife, Gen. xxv. 1].

6 In all other cases, the reasoning of St Paul, Rom. ii. 14, applies. The Gentiles are a law to themselves: the uncircumcision, keeping this law, is counted for circumcision [v. 26]. And this was acknowledged [see the example]. But circumcision was sometimes undergone by strangers for special objects [see the text]. Yet some in later times perversely held that there was no salvation out of the pale of Judaism.

7 Hence we learn that we are not bound by any part of the Jewish law, peculiarly so called; because all obligation extraneous to Natural Law comes from the will of the Lawgiver; and there is no indication that it was the will of God that others besides the Israelites should be bound by that law. We have therefore no occasion to prove the abrogation of this law; for it could not be abrogated with regard to those who were never bound by it. With regard to the Jews, the obligation of the Ritual Law was removed on the promulgation of the Gospel, as was revealed to St Peter, Acts x. 15. The rest of the Jewish Law was abolished by the dispersion of the Jewish nation.

8 What we Gentiles have gained by the coming of Christ is, not that we are freed from the law of Moses: but that, wherever formerly we could only have an obscure hope founded on the goodness of God, we now have a Covenant, and may be gathered into one Church with the descendants of the Patriarchs, the Law being taken away, which was the partition-wall between us; Eph. ii. 14.

8 XVII. 1 Since then the law of Moses cannot impose any direct obligation upon us, let us see if it can be of any other use in questions of the Rights of War, and the like.

2 (1) In the first place, the Jewish Law shows that what is commanded by that law is not contrary to Natural Law. For Natural Law being, as we have said [x. 5] perpetual and immutable, God, who is never unjust, could not command anything against that Law. Add that the Law is called right, pure, holy, just, and good. [See the quotations].

This is true of precepts: with regard to permissions, we must distinguish. Permission, as a mere fact, [that is, by saying nothing, as the law does concerning actions altogether indifferent,] need not be considered. Permission legal, is either plenary, which gives a right to do a thing entirely lawfully; or less full, which only gives impunity among men, and a Right not to be impeded by any other person. Permission of the former kind, no less than Precept, proves that the matter so stated is not against Natural Law. With regard to permission of the latter kind, the case is different. But this inference [from the Law of Moses to the Natural Law] rarely occurs: because when the words of permission are ambiguous, it is more convenient to infer, from the Natural Law, the kind of the permission, than from the kind of the permission, to infer the agreement with Natural Law.

3 (2) We remark also: that it is now lawful for the Rulers of Christian states to make laws of the same purport as the laws of Moses; except those Mosaic Laws of which the whole substance belonged to the time when Christ was expected, and the Gospel not yet revealed; or except Christ has commanded the contrary generally; or specially. With these three exceptions, there cannot be devised any case in which that which was formerly instituted by the Law of Moses should not be within the lawful sphere of instituted law at present.

4 (3) In the third place: whatever is commanded by the law of Moses, connected with the virtues which Christ requires from his disciples, that, at least, if not more, is due from Christians. The foundation of this remark is this: that the virtues which are required of Christians, as humility, patience, kindness, are required in a greater degree than they were under the Jewish Law: and that with good reason; because the heavenly promises are more and more clearly given in the Gospel. And hence, the Old Law is declared not to have been perfect, nor faultless: and Christ is called the end of the Law; and the Law a schoolmaster to lead us to Christ. [See the references in the text.]

For example, the Old Law concerning the Sabbath, and the Law concerning Tithes, shew that Christians are obliged to give up not less than a seventh part of their time to divine worship; and not less than a tenth part of their goods for the support of those who minister in sacred things, and the like pious uses.