* * *
Many people
have undertaken commentaries and digests of civil laws, both the Roman law and
that of other nations; but few people have tackled the law which mediates
between different countries, or between their rulers (whether that law stems
from nature itself or from custom and tacit agreement), and so far no one at
all has dealt with it comprehensively and methodically, though such a thing
would benefit the human race. As Cicero truly said, the master science is the
one which deals with alliances, agreements and bargains between peoples, kings,
and foreign nations; that is, with all the rights of war and peace. Euripides
too ranked this study above the knowledge of all divine and human matters: he
had Theoclymenes addressed in this way:
You, who know the affairs of Gods and men present and to come,
Are worthless still, if what is just escapes you.
Work on this
subject is all the more necessary because plenty of people, both in our own
time and in earlier ages, have condemned this kind of law as nothing more than
an empty name. Euthydemus’s remark in Thucydides is on almost everyone’s lips,
that for a king or state with sovereign power, nothing which is in their
interest is unjust. Much the same are the sayings that when the stakes are
high, success is the only justice, or that a state cannot be ruled without
injustice. We can add to these the claim that the controversies which arise
between nations or rulers generally have Mars as their arbiter. It is not only
ordinary people who think there is a great gulf between war and law, but even
learned and sensible people often make pronouncements which foster this belief.
Nothing is more common than to oppose law and arms to one another. So Ennius
said
They looked to cold steel, not to law, for what they claimed.
And Horace
described the ferocity of Achilles as follows:
Thinking that laws were made for other men
He carved his share with arms alone.
With this I leave behind both peace and futile law.
Even such a
modest person as Pompey could dare to say, “Why should I think of laws, with
weapons in my hand?” Among Christian writers there are many passages to the
same effect; one in Tertullian will stand for the others. “Deceit, savagery and
injustice are the proper business of war.” No doubt those who think like this
will quote to me that passage in Terence,
Believing that your reason’s going to make
This vagueness certain, is the same as if
You thought you could go mad, and still stay sane.
It would
clearly be useless to undertake a discussion of law if there is no such thing;
so if I am to win acceptance for my project, I need in its defence briefly to
refute this crucial error. And so that I do not have to deal with the whole
crowd of my opponents, let me assign them a spokesman. Who better than
Carneades, who reached what to the Academy was the summit of achievement, in
that he could use his rhetorical powers just as effectively on behalf of
falsehood as on behalf of truth? When he undertook the critique of justice
(which is my particular subject at the moment), he found no argument more
powerful than this: men have established iura according to their own
interests [pro utilitate], which vary with different customs, and often
at different times with the same people. So there is no natural ius: all
men and the other animals are impelled by nature to seek their own interests.
Consequently, either there is no justice, or if there is such a thing, it is
completely irrational, since pursuing the good of others harms oneself. We
should not by any means accept the truth of what this philosopher says, nor of
what Horace said in imitation,
Nature itself will not split wrong from right.
For though man
is an animal, he is one of a special kind, further removed from the rest than
each of the other species is from one another—for which there is testimony from
many actions unique to the human species. Among the things which are unique to
man is the desire for society [appetitus societatis], that is, for
community with those who belong to his species—though not a community of any
kind, but one at peace, and with a rational order [pro sui intellectus modo
ordinatae]. Therefore, when it is said that nature drives each animal to
seek its own interests [utilitates], we can say that this is true of the
other animals, and of man before he came to the use of that which is special to
man [antequam ad usum eius quod homini proprium est, pervenerit]. . . . This care for society in accordance with the human
intellect, which we have roughly sketched, is the source of ius,
properly so called, to which belong abstaining from another’s possessions,
restoring anything which belongs to another (or the profit from it), being
obliged to keep promises, giving compensation for culpable damage, and
incurring human punishment.
From this concept of ius arises another and more extensive one. Since men not only have this social instinct [vim socialem] more than other animals, but also possess the capacity to assess pleasures or pains [quae delectant aut nocent], both immediately and in the future, and to make judgments about what will conduce to them; we should understand that it is appropriate to human nature rationally [pro humani intellectus modo] to follow good judgment in these matters, and not be disturbed by fear or the lure of immediate pleasure, and that whatever is plainly contrary to good judgment is also contrary to the law of nature (that is, of human nature). As a result it behooves us when distributing resources responsibly to individuals or groups to ensure that we give more weight to the intelligent [sapiens] than to the less intelligent, more to a neighbor than to a stranger, and more to the poor than to the rich, as their conduct and the nature of the case requires.
In the past many people took this to be part of ius properly and strictly so called, whereas ius accurately understood is very different in its character, as it consists in refraining from taking what belongs to another person, or in fulfilling some obligation to them. What I have just said would be relevant even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to him: the contrary of which on the one hand is borne in upon us (however unwilling we may be) by an innate light in our soul, and on the other is confirmed by many arguments and by miracles witnessed down the ages. . . .
[W]hen people form themselves into a society [coetus] or subject themselves to some man or men, they have either expressly promised, or should be presumed from the nature of the arrangement to have tacitly promised, that they will agree with whatever the majority of the society, or the bearers of authority in it, have decided upon. Accordingly, what not Carneades alone but others as well have said,
From this concept of ius arises another and more extensive one. Since men not only have this social instinct [vim socialem] more than other animals, but also possess the capacity to assess pleasures or pains [quae delectant aut nocent], both immediately and in the future, and to make judgments about what will conduce to them; we should understand that it is appropriate to human nature rationally [pro humani intellectus modo] to follow good judgment in these matters, and not be disturbed by fear or the lure of immediate pleasure, and that whatever is plainly contrary to good judgment is also contrary to the law of nature (that is, of human nature). As a result it behooves us when distributing resources responsibly to individuals or groups to ensure that we give more weight to the intelligent [sapiens] than to the less intelligent, more to a neighbor than to a stranger, and more to the poor than to the rich, as their conduct and the nature of the case requires.
In the past many people took this to be part of ius properly and strictly so called, whereas ius accurately understood is very different in its character, as it consists in refraining from taking what belongs to another person, or in fulfilling some obligation to them. What I have just said would be relevant even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to him: the contrary of which on the one hand is borne in upon us (however unwilling we may be) by an innate light in our soul, and on the other is confirmed by many arguments and by miracles witnessed down the ages. . . .
[W]hen people form themselves into a society [coetus] or subject themselves to some man or men, they have either expressly promised, or should be presumed from the nature of the arrangement to have tacitly promised, that they will agree with whatever the majority of the society, or the bearers of authority in it, have decided upon. Accordingly, what not Carneades alone but others as well have said,
Utility [utilitas] might be called the mother of justice and
equity,
is not true, if
we speak accurately: for human nature itself is the mother of natural law, as
it drives us to seek a common society [societatem mutuam] even if there
is no shortage of resources: the mother of civil law is the obligation which
arises from agreement, and since that gets its force from natural law, nature
can be termed the grandmother of civil law. But utility is annexed to the
natural law: the author of nature willed that as individuals we should be weak
and in need of many things if we are to lead a good life, in order that we
should be all the more impelled into living in society . . .
But just as the laws of each state [civitas] consult the utility of that state, so there could be (and indeed there seem actually to be) laws between states—either between all states or between a number of them— which consult the utility not of the individual societies but of their totality. This is what is termed “the law of nations,” insofar as we distinguish that law from the law of nature. Carneades omitted this kind of law when he categorized all laws as either the laws of nature or those of particular nations, though since he was dealing with the law which governs international relations (for the subject of his lecture was “war and its consequences”), he ought to have dealt with it above all. So Carneades was wrong when he stigmatized justice with the name of irrationality: for just as on his own account a citizen is not irrational who obeys the civil law of his state, even though doing so may require the citizen to forgo some personal benefit, so a nation is not irrational if it does not pursue its own interest at the expense of the common laws of nations. The reasoning is the same in each case: a citizen who breaks the civil law for the sake of some immediate interest will thereby undermine his own and his descendants’ permanent interests, and a nation which violates the laws of nature and nations will have renounced its right [rescindit munimenta] subsequently to live in peace. So even if no benefit is to be expected from obedience to a law, it is wise and not irrational to do what we feel we are led to by our nature.
By the same token, it is not invariably true that
But just as the laws of each state [civitas] consult the utility of that state, so there could be (and indeed there seem actually to be) laws between states—either between all states or between a number of them— which consult the utility not of the individual societies but of their totality. This is what is termed “the law of nations,” insofar as we distinguish that law from the law of nature. Carneades omitted this kind of law when he categorized all laws as either the laws of nature or those of particular nations, though since he was dealing with the law which governs international relations (for the subject of his lecture was “war and its consequences”), he ought to have dealt with it above all. So Carneades was wrong when he stigmatized justice with the name of irrationality: for just as on his own account a citizen is not irrational who obeys the civil law of his state, even though doing so may require the citizen to forgo some personal benefit, so a nation is not irrational if it does not pursue its own interest at the expense of the common laws of nations. The reasoning is the same in each case: a citizen who breaks the civil law for the sake of some immediate interest will thereby undermine his own and his descendants’ permanent interests, and a nation which violates the laws of nature and nations will have renounced its right [rescindit munimenta] subsequently to live in peace. So even if no benefit is to be expected from obedience to a law, it is wise and not irrational to do what we feel we are led to by our nature.
By the same token, it is not invariably true that
We ought to say that from fear of injustice came laws;
or, as Plato
puts the same thought, laws were invented from a fear of suffering injury, and
it was violence which got men to cultivate justice. Strictly speaking, this
applies only to those practices [instituta] and laws which were devised
to help with instituting relationships of justice: many people who were
individually weak got together to found and maintain with their collective
strength a legal system [iudicia], so that they would not be oppressed
by the more powerful, and that what they could not achieve separately would be
within their power as a community. It is in this sense that it can reasonably
be said that what is right is what benefits the most powerful, when we
understand that a system of right can secure its external objective only with
the help of force.
Moreover, laws can still have an effect even without any violence annexed to them. For justice leads to a secure conscience, while injustice leads to the torment and laceration which Plato depicts in the hearts of tyrants; the common consent of upright people approves of justice and condemns injustice; and, most importantly of all, God is hostile to injustice and a friend to justice. Though he keeps his judgments for when we are dead, he nevertheless often represents their power to us in this life, as history tells us with many instances.
Many people require the practice of justice from citizens but do not bother about it from nations or the rulers of nations. The principal cause of their mistake is that they are looking only to the utility which arises from laws, which is obvious in the case of citizens who cannot enjoy security as separate individuals, while great states which seem to possess all the resources needed for a properly secure existence apparently have no use for the virtue which involves other people, namely justice. But without repeating what I have already said, laws are not instituted for the sake purely of utility, and there is no state so powerful that it might not need some help from people outside it, whether for trade, or for protecting itself from the strength of many foreign nations united in opposition to it. This is why we see even the most powerful nations and kings seek alliances, the whole force of which is undermined by those who restrict laws to the internal affairs of states.
The great truth is that everything is insecure as soon as we abandon laws. If no community can preserve itself without law (as Aristotle showed with his famous example of the brigands), so the community which all human beings, or a multiplicity of nations, construct among themselves certainly requires laws. Cicero recognized this when he said that evil actions should not be committed even for the sake of our country. . . .
What some people say, that in war all laws cease, is completely unacceptable: rather, war should only be undertaken in the pursuit of rights, and once under way should be conducted according to the measure of law and honesty [fides]. Demosthenes was right when he said that war was to be used against those who could not be constrained by judicial processes. Those processes have force only against people who think of themselves as subject to them, while war should be mounted against people who make themselves out to be the equals of their judges—though it should definitely be conducted with no less scrupulousness [religio] than we are accustomed to in courts. If “laws are silent among arms,” this is true only of civil laws and of laws relating to the judiciary and the practices of peacetime, and not of the other laws which are perpetual and appropriate to all circumstances. . . .
Historians constantly demonstrate how much influence a conviction of justice carries in warfare, and often ascribe victory to this cause above all. It is proverbial that the strength of a soldier waxes and wanes with his cause; that he who takes up unjust arms rarely comes home intact; that hope is the companion of a good cause; and so on. The fortunate success of unjust projects should not influence us: it is sufficient that the fairness of a cause has a determinate—and great—motive force, even though that force (as happens in human affairs) is often impeded in its effects by some other countervailing causes. The belief that we do not go to war casually or unjustly, but conscientiously [pie], plays a major part in sustaining friendships, which are as advantageous in all sorts of ways to nations as they are to individuals. For no one will readily ally with anyone who thinks that law, morality, and honesty [ius, fas, fidem] are worthless.
Because of the reasons I have given, I am in no doubt that there is some common law [ius commune] among nations which applies to war and its conduct; so there are many urgent issues leading me to take up my pen. I have seen a wantonness in wafare among Christians which would be shameful even among barbarians; I have seen men run to arms for frivolous or non existent reasons, and having taken them up, show no reverence for divine or human law, as if at a word their fury had been unleashed and they were capable of any crime. Many highly decent men have been led by this spectacle of inhumanity to suppose that all weapons should be forbidden for the Christian, whose way of life commits him to love all men; these include at times both Johannes Ferus and Erasmus, our countrymen, each of them dedicated to peace in the Church and the State. But I think they have followed the familiar practice of going from one extreme to the other in the pursuit of truth. This attempt to go too far in the other direction often causes more harm than good, since their extremism in one area loses them respect as far as their more reasonable claims are concerned. We should therefore remedy their arguments, so that people are not encouraged to believe either nothing or everything that they say. . . .
Moreover, laws can still have an effect even without any violence annexed to them. For justice leads to a secure conscience, while injustice leads to the torment and laceration which Plato depicts in the hearts of tyrants; the common consent of upright people approves of justice and condemns injustice; and, most importantly of all, God is hostile to injustice and a friend to justice. Though he keeps his judgments for when we are dead, he nevertheless often represents their power to us in this life, as history tells us with many instances.
Many people require the practice of justice from citizens but do not bother about it from nations or the rulers of nations. The principal cause of their mistake is that they are looking only to the utility which arises from laws, which is obvious in the case of citizens who cannot enjoy security as separate individuals, while great states which seem to possess all the resources needed for a properly secure existence apparently have no use for the virtue which involves other people, namely justice. But without repeating what I have already said, laws are not instituted for the sake purely of utility, and there is no state so powerful that it might not need some help from people outside it, whether for trade, or for protecting itself from the strength of many foreign nations united in opposition to it. This is why we see even the most powerful nations and kings seek alliances, the whole force of which is undermined by those who restrict laws to the internal affairs of states.
The great truth is that everything is insecure as soon as we abandon laws. If no community can preserve itself without law (as Aristotle showed with his famous example of the brigands), so the community which all human beings, or a multiplicity of nations, construct among themselves certainly requires laws. Cicero recognized this when he said that evil actions should not be committed even for the sake of our country. . . .
What some people say, that in war all laws cease, is completely unacceptable: rather, war should only be undertaken in the pursuit of rights, and once under way should be conducted according to the measure of law and honesty [fides]. Demosthenes was right when he said that war was to be used against those who could not be constrained by judicial processes. Those processes have force only against people who think of themselves as subject to them, while war should be mounted against people who make themselves out to be the equals of their judges—though it should definitely be conducted with no less scrupulousness [religio] than we are accustomed to in courts. If “laws are silent among arms,” this is true only of civil laws and of laws relating to the judiciary and the practices of peacetime, and not of the other laws which are perpetual and appropriate to all circumstances. . . .
Historians constantly demonstrate how much influence a conviction of justice carries in warfare, and often ascribe victory to this cause above all. It is proverbial that the strength of a soldier waxes and wanes with his cause; that he who takes up unjust arms rarely comes home intact; that hope is the companion of a good cause; and so on. The fortunate success of unjust projects should not influence us: it is sufficient that the fairness of a cause has a determinate—and great—motive force, even though that force (as happens in human affairs) is often impeded in its effects by some other countervailing causes. The belief that we do not go to war casually or unjustly, but conscientiously [pie], plays a major part in sustaining friendships, which are as advantageous in all sorts of ways to nations as they are to individuals. For no one will readily ally with anyone who thinks that law, morality, and honesty [ius, fas, fidem] are worthless.
Because of the reasons I have given, I am in no doubt that there is some common law [ius commune] among nations which applies to war and its conduct; so there are many urgent issues leading me to take up my pen. I have seen a wantonness in wafare among Christians which would be shameful even among barbarians; I have seen men run to arms for frivolous or non existent reasons, and having taken them up, show no reverence for divine or human law, as if at a word their fury had been unleashed and they were capable of any crime. Many highly decent men have been led by this spectacle of inhumanity to suppose that all weapons should be forbidden for the Christian, whose way of life commits him to love all men; these include at times both Johannes Ferus and Erasmus, our countrymen, each of them dedicated to peace in the Church and the State. But I think they have followed the familiar practice of going from one extreme to the other in the pursuit of truth. This attempt to go too far in the other direction often causes more harm than good, since their extremism in one area loses them respect as far as their more reasonable claims are concerned. We should therefore remedy their arguments, so that people are not encouraged to believe either nothing or everything that they say. . . .
My prime concern has been to base my
examination of what belongs to the law of nature on ideas which are so certain
that nobody can deny them without doing violence to their fundamental being [nisi
sibi vim inferat]. The principles of natural law are clear and
self-evident, to a much higher degree than the things which we perceive with
our outward senses—even though our senses do not fail us if their organs are
working properly and other necessary conditions are met. So Euripides in his Phoenissae
made Polynices, whose cause he wanted to be obviously just, say that
What I am saying, Mother, is not encircled with mysteries,
But finds its support in the rules of the right and the good
Which the masses see always as clearly as men of great learning.
The judgment of
the chorus promptly confirmed this view (and it consisted of women, and
barbarian women at that).
In investigating this law, I have benefited from the testimony of philosophers, historians, poets, and, lastly, orators. One should not naively believe whatever they say, since they are often loyal to a particular party, program, or cause; but what is affirmed by many people at different times and places to be obvious must be presumed to rest on some universal reason. In the issues we are considering, this reason can only be either a correct deduction from the principles of our nature, or some general agreement. The former means that it is a law of nature, the latter that it is a law of nations. The distinction between these two categories is not to be gathered from their writings (for the authors continuously confound the terms “law of nature” and “law of nations”), but from the character of the material. For whatever cannot be deduced by sure reasoning from definite principles, but is nevertheless found everywhere, must have arisen from some voluntary act. Accordingly, I have constantly put special effort into distinguishing between these two laws, as much as into distinguishing both of them from the civil law.
In the case of the law of nations I have discriminated between genuine law, found everywhere, and that which strictly speaking produces some external effect in imitation of the fundamental law—for example, it is most definitely and clearly legitimate to resist violence, but everywhere people are obliged to use the public powers to defend themselves, for the sake of some advantage or to avoid serious inconveniences. It will be clear as I develop the argument of this work how relevant this observation is to many issues. I have also been anxious to distinguish rights properly and strictly so called, which give rise to some obligation of restitution, from actions which we call right because it would be against the dictate of right reason to behave in some other way. . . .
Among philosophers Aristotle is reckoned the king, whether you take into account the structure of his arguments, his sharpness in making distinctions, or the weight of his reasons. But I wish that his rule had not been transformed into tyranny, so that there is now nothing which oppresses truth, on whose behalf Aristotle was such a zealous and loyal worker, more than the name of Aristotle himself. Here and elsewhere I copy the freedom of the early Christians, who forswore loyalty to any school of philosophers; not because they agreed with those who say that nothing can be known (that is the most ridiculous thing to say), but because they thought that no school was right about everything, and each school had some merit. So they believed that to put together the truths distributed among different individuals and schools was equivalent to setting out the authentic teachings of Christianity. . . .
In investigating this law, I have benefited from the testimony of philosophers, historians, poets, and, lastly, orators. One should not naively believe whatever they say, since they are often loyal to a particular party, program, or cause; but what is affirmed by many people at different times and places to be obvious must be presumed to rest on some universal reason. In the issues we are considering, this reason can only be either a correct deduction from the principles of our nature, or some general agreement. The former means that it is a law of nature, the latter that it is a law of nations. The distinction between these two categories is not to be gathered from their writings (for the authors continuously confound the terms “law of nature” and “law of nations”), but from the character of the material. For whatever cannot be deduced by sure reasoning from definite principles, but is nevertheless found everywhere, must have arisen from some voluntary act. Accordingly, I have constantly put special effort into distinguishing between these two laws, as much as into distinguishing both of them from the civil law.
In the case of the law of nations I have discriminated between genuine law, found everywhere, and that which strictly speaking produces some external effect in imitation of the fundamental law—for example, it is most definitely and clearly legitimate to resist violence, but everywhere people are obliged to use the public powers to defend themselves, for the sake of some advantage or to avoid serious inconveniences. It will be clear as I develop the argument of this work how relevant this observation is to many issues. I have also been anxious to distinguish rights properly and strictly so called, which give rise to some obligation of restitution, from actions which we call right because it would be against the dictate of right reason to behave in some other way. . . .
Among philosophers Aristotle is reckoned the king, whether you take into account the structure of his arguments, his sharpness in making distinctions, or the weight of his reasons. But I wish that his rule had not been transformed into tyranny, so that there is now nothing which oppresses truth, on whose behalf Aristotle was such a zealous and loyal worker, more than the name of Aristotle himself. Here and elsewhere I copy the freedom of the early Christians, who forswore loyalty to any school of philosophers; not because they agreed with those who say that nothing can be known (that is the most ridiculous thing to say), but because they thought that no school was right about everything, and each school had some merit. So they believed that to put together the truths distributed among different individuals and schools was equivalent to setting out the authentic teachings of Christianity. . . .
I have abstained from discussing questions of utility [quid ex usu sit facere], which are appropriate to some other work; those questions belong to a special political science [artem], which Aristotle rightly handled by itself, without any extraneous material—unlike Bodin, who confused this science with the kind of legal analysis [arte] which I have undertaken. I have on some occasions mentioned what is in people’s interests [quod utile est], but in passing, and in order to distinguish it from what is just. If anyone accuses me of being concerned with the controversies of our own time (whether current or about to break out), they will do me an injustice: I affirm that, just as mathematicians treat geometrical figures as abstracted from material objects, so I have conceived of law in the absence of all particular circumstances. . . .
I sincerely pray that anyone who picks up this work will treat me with the same lack of deference [libertatem] which I have shown to the ideas and writings of other people; I will correct any error as soon as it has been brought to my attention. Lastly, if I have said anything contrary to piety, or morality, or Scripture, or the common agreement of the Christian Church, consider it unsaid.
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