Читать книгу The Law of Nations Treated According to the Scientific Method - Christian von Wolff - Страница 16

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PROLEGOMENA

§ 1. Definition of the Law of Nations

By the Law of Nations we understand the science of that law which nations or peoples use in their relations with each other and of the obligations corresponding thereto.

§ 23, part 1, Jus Nat.¹

§ 25, part 1, Jus Nat.

We propose to show, of course, how nations as such ought to determine their actions, and consequently to what each nation is bound, both to itself and to other nations, and what laws of nations arise therefrom, both as to itself and as to other nations. For laws arise from passive obligation, so that, if there were no obligation, neither would there be any law.

§ 2. How nations are to be regarded

§ 5, part 8, Jus Nat.

§ 54, part 8, Jus Nat.

Nations are regarded as individual free persons living in a state of nature. For they consist of a multitude of people united into a state. Therefore since states are regarded as individual free persons living in a state of nature, nations also must be regarded in relation to each other as individual free persons living in a state of nature.

Here, of course, we are looking at nations as they are at their beginning, before one has bound itself to another by definite promises restricting the civil liberty which belongs to a people, or has been subjected, either by its own act or that of another, to some other nation. For that the liberty of nations, which originally belongs to them, can be taken away or diminished, will be evident from proof later.

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§ 3. Of what sort the law of nations is originally

§ 2.

§ 125, part 1, Jus Nat.

Since nations are regarded as individual persons living in a state of nature, moreover, as men in a state of nature use nothing except natural law, nations also originally use none other than natural law; therefore the law of nations is originally nothing except the law of nature applied to nations.

Chapter 4, part 8, Jus Nat.

The only law given to men by nature is natural law. This then can be changed by the act of men voluntarily, by agreement between individuals, so far as concerns those things which belong to permissive law, and so far as concerns the performance of those actions that are required by the principles of humanity; it can be changed in the state by force of the legislative power, as we have shown in our natural theory of the civil laws. In like manner the only law given to nations by nature is natural law, or the law of nature itself applied to nations. This then can be changed by the act of nations voluntarily, so far as concerns those things which belong to permissive law, and so far as concerns the performance of those actions that are required by the principles of humanity, as we shall see in the following discussion. But far be it from you to think that therefore there is no need of our discussing in detail the law of nations. For the principles of the law of nature are one thing, but the application of them to nations another, and this application produces a certain diversity in the law of nations, which is inferred from the fact that the nature of a nation is not the same as human nature. For example, man is bound to preserve himself by nature, every nation by the agreement through which it is made a definite moral person. But there is one method of preservation required for man, another for a nation. Likewise the right of defending one’s self against the injuries of others belongs to man by nature, and the law of nature itself assigns it to a nation. But the method of one human being’s defence against another is not, of course, the same as the proper method of defence for nations. There will be no difficulty in this for those who have understood the force of the fundamental principle of reduction, which is of especial importance in the art of logic. And if any mists still obscure the minds of some, the following discussion will dispel them. Therefore we are not embarrassed by the objections of those who argue that the law of nations ought not to

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be distinguished from the law of nature, and that the law of nations ought to be presented as nothing other than the law of nature. So far as we are concerned, each may indulge his own belief. With none shall we start a dispute. For us it is sufficient to have explained those things which seem to us to be in harmony with the truth.

§ 4. Definition of the necessary law of nations

We call that the necessary law of nations which consists in the law of nature applied to nations. It is even called by Grotius and his successors, the internal law of nations, since it evidently binds nations in conscience. It is likewise called by some the natural law of nations.

Of course, the necessary law of nations contains those things which the law of nature prescribes to nations, which, just as it regulates all acts of men, so likewise governs the acts of nations as such.

§ 5. Of the immutability of this law

§ 4.

§142, part 1, Phil. Pract. Univ.

Since the necessary law of nations consists in the law of nature applied to nations, furthermore as the law of nature is immutable, the necessary law of nations also is absolutely immutable.

§§ 136, 142, part 1, Phil. Pract. Univ.

§ 5, part 8, Jus Nat.

§ 136, part 1, Phil. Pract. Univ.

§ 4, part 8, Jus Nat.

The immutability of the necessary law of nations arises from the very immutability of natural law, and is finally derived from the essence and nature of man as a source whence flows the very immutability of natural law. The law of nature therefore rules the acts of nations, because men coming together into a state and thereby becoming a nation, do not lay aside their human nature, consequently they remain subject to the law of nature, in as much as they have desired to combine their powers for the promotion of the common good.

§ 6. The nature of the obligation which comes from the necessary law of nations

§ 4.

§ 142, part 3, Phil. Pract. Univ.

In like manner since the necessary law of nations consists in the law of nature applied to nations, and consequently the obligation which arises from the necessary law of nations comes from the law of nature, furthermore, since this obligation itself, which comes from the law of nature,

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is necessary and immutable, the obligation also which comes from the law of nations is necessary and immutable; consequently neither can any nation free itself nor can one nation free another from it.

§§ 150, 156, part 1, Jus Nat.

These things are to be well considered, lest some one may think, when he sees that a certain licence of action must be tolerated among nations, that the necessary law of nations is of no use. For this would be just as if one should argue that the law of nature is of no use, because the abuse of their liberty must be allowed to men in a state of nature and the same is turned to licence of action, nor can this be prohibited except by positive law in a civil state, where they can be compelled by a superior by force to do what they are unwilling to do of their own accord. The abuse of power remains illicit even among nations, even though it cannot be checked. Nor do good nations do all they can, but they have respect for conscience no less than every good man has, who does not gauge his right by might, but by the obligation that comes from the law of nature. A good nation differs from a bad in the same way that a good man differs from a bad, or, if you prefer, the virtuous from the vicious.

§ 7. Of the society established by nature among nations

§ 138, part 1, Jus Nat.

§ 135, part 1, Phil. Pract. Univ.

§ 142, part 1, Phil. Pract. Univ.

§ 5, part 8, Jus Nat.

§ 26, part 8, Jus Nat.

§ 5, part 8, Jus Nat.

Nature herself has established society among all nations and binds them to preserve society. For nature herself has established society among men and binds them to preserve it. Therefore, since this obligation, as coming from the law of nature, is necessary and immutable, it cannot be changed for the reason that nations have formed a state. Therefore society, which nature has established among individuals, still exists among nations and consequently, after states have been established in accordance with the law of nature and nations have arisen thereby, nature herself also must be said to have established society among all nations and bound them to preserve society.

§ 5, part 8, Jus Nat.

If we should consider that great society, which nature herself has established among men, to be done away with by the particular societies, which humans enter, when they unite into a state, states would be established contrary to the law of nature, in as much as the universal obligation of all toward all would be terminated; which assuredly is

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absurd. Just as in the human body individual organs do not cease to be organs of the whole human body, because certain ones taken together constitute one organ; so likewise individual men do not cease to be members of that great society which is made up of the whole human race, because several have formed together a certain particular society. And in so far as these act together as associates, just as if they were all of one mind and one will; even so are the members of that society united, which nature has established among men. After the human race was divided into nations, that society which before was between individuals continues between nations.

§ 8. Of the purpose of that state

§ 7.

§ 142, part 7, Jus Nat.

§ 144, part 7, Jus Nat.

§ 141, part 8, Jus Nat.

Since nature herself has established society among all nations, in so far as she has established it among all men, as is evident from the demonstration of the preceding proposition, since, moreover, the purpose of natural society, and consequently of that society which nature herself has established among men, is to give mutual assistance in perfecting itself and its condition; the purpose of the society therefore, which nature has established among all nations, is to give mutual assistance in perfecting itself and its condition. Consequently the common good must be promoted by its combined powers.

Just as one human being alone is not sufficient unto himself, but needs the aid of another, in order that thereby the common good may be promoted by their combined powers; so also one nation alone is not sufficient for itself, but one needs the aid of the other, that thereby the common good may be promoted by their combined powers. Therefore since nature herself unites men together and compels them to preserve society, because the common good of all cannot be promoted except by their combined powers, so that nothing is more beneficial for man than man; the same nature likewise unites nations together and compels them to preserve society, because the common good of all cannot be promoted except by their combined powers, so that nothing can be said to be more beneficial for a nation than a nation. For although a nation can be thought of which is spread over a vast expanse, and does not seem to need the aid of other nations; nevertheless it cannot yet be said that it could not improve its condition

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still more by the aid of other nations, much less that other nations could not be aided by it, however much it could itself dispense with the aid of others. Just as man ought to aid man, so too ought nation to aid nation.

§ 9. Of the state which is made up of all nations

§§ 7, 8.

§§ 4, 9, part 8, Jus Nat.

§ 504, part 5, Jus Nat.

§ 5, part 8, Jus Nat.

All nations are understood to have come together into a state, whose separate members are separate nations, or individual states. For nature herself has established society among all nations and compels them to preserve it, for the purpose of promoting the common good by their combined powers. Therefore since a society of men united for the purpose of promoting the common good by their combined powers, is a state, nature herself has combined nations into a state. Therefore since nations, which know the advantages arising therefrom, by a natural impulse are carried into this association, which binds the human race or all nations one to the other, since moreover it is assumed that the others will join it, if they know their own interests; what can be said except that nations also have combined into society as if by agreement? So all nations are understood to have come together into a state, whose separate nations are separate members or individual states.

§ 138, part 7, Jus Nat.

§ 7.

Note, § 142, part 7, Jus Nat.

Reasoning throws a certain light upon the present proposition, by which we have proved that nature has established society among men and compels them to protect society. Nay, rather the state, into which nature herself orders nations to combine, in truth depends on that great society which she has established among all men, as is perfectly evident from the above reasoning. But that those things may not be doubtful which we have said concerning the quasi-agreement, by which that supreme state is understood to have been formed between nations; those things must be reconsidered which we have mentioned elsewhere. Furthermore, in establishing this quasi-agreement we have assumed nothing which is at variance with reason, or which may not be allowed in other quasi-agreements. For that nations are carried into that association by a certain natural impulse is apparent from their acts, as when they enter into treaties for the purpose of commerce or war, or even of friendship, concerning which we shall speak below in their proper place. There is no need to persuade yourself that there

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is no nation that is not known to unite to form the state, into which nature herself commands all to combine. Just as in tutelage it is rightly presumed that the pupil agrees, in so far as he ought to agree, nay, more, as he would be likely to agree, if he knew his own interest; so in the same way nations which through lack of insight fail to see how great an advantage it is to be a member of that supreme state, are presumed to agree to this association. And since it is understood in a civil state that the tutor is compelled to act, if he should be unwilling to consent of his own accord, but that even when the agreement is extorted by a superior by force that does not prevent the tutelage from resting upon a quasi-agreement; why, then, is it not allowable to attribute the same force to the natural obligation by which nations are compelled to enter into an alliance as is attributed to the civil obligation, that it is understood to force consent even as from one unwilling? But if these arguments seem more ingenious than true, and altogether too complicated; putting them aside, it is enough to recognize that nature herself has combined nations into a state, therefore whatever flows from the concept of a state, must be assumed as established by nature herself. We have aimed at nothing else.

§ 10. What indeed may be called the supreme state

The state, into which nations are understood to have combined, and of which they are members or citizens, is called the supreme state.

§§ 17, 23, Proleg.

The size of a state is determined by the number of its citizens. Therefore a greater state cannot be conceived of than one whose members are all nations in general, inasmuch as they together include the whole human race. This concept of a supreme state was not unknown to Grotius, nor was he ignorant of the fact that the law of nations was based on it, but nevertheless he did not derive from it the law of nations which is called voluntary, as he could and ought to have done.

§ 11. Of the laws of the supreme state

§ 10.

§ 4, part 8, Jus Nat.

§ 46, part 7, Jus Nat.

§ 965, part 8, Jus Nat.

§ 969, part 8, Jus Nat.

Since the supreme state is a certain sort of state, and consequently a society, moreover since every society ought to have its own laws and the right exists in it of promulgating laws with respect to those things which

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concern it, the supreme state also ought to have its own laws and the right exists in it of promulgating laws with respect to those things which concern it; and because civil laws, that is, those declared in a state, prescribe the means by which the good of a state is maintained, the laws of the supreme state likewise ought to prescribe the means by which its good is maintained.

§ 965, part 8, Jus Nat.

Note, § 965, part 8, Jus Nat.

It occasions very little difficulty that laws may be promulgated in the state by a superior such as nations do not have, and certainly do not recognize. For since the law of nature governs the will of the ruler in making laws, and since laws ought to prescribe the means by which the good of the state is maintained, by virtue of the present proposition, then, it is evident enough of what sort those laws ought to be that nations ought to agree to, consequently may be presumed to have agreed to. No difficulty will appear in establishing a law of nations which does not depart altogether from the necessary law of nations, nor in all respects observe it, as will appear in what follows.

§ 12. How individual nations are bound to the whole and the whole to the individuals

§ 28, part 8, Jus Nat.

§§ 9 and fol., part 8, Jus Nat.

Inasmuch as nations are understood to have combined in a supreme state, the individual nations are understood to have bound themselves to the whole, because they wish to promote the common good, but the whole to the individuals, because it wishes to provide for the especial good of the individuals. For if a state is established, individuals bind themselves to the whole, because they wish to promote the common good, and the whole binds itself to the individuals, because it wishes to provide for adequate life, for peace and security, consequently for the especial good of the individuals. Inasmuch then as nations are understood to have combined in a supreme state, individual nations also are understood to have bound themselves to the whole, because they wish to promote the common good, and the whole to the individuals, because it wishes to provide for the especial good of the individuals.

§ 7, 9.

Note, § 635, part 7, Jus Nat.

Nature herself has brought nations together in the supreme state, and therefore has imposed upon them the obligation which the present

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proposition urges, that because they ought to agree, they may be presumed to have agreed, or it may rightly be assumed that they have agreed, just as something similar exists in patriarchal society, which we have said is valid as a natural quasi-agreement. But if all nations had been equipped with such power of discernment as to know how effort might be made for the advantage of themselves, and what losses might be avoided by them, if the individual nations performed the duty of a good citizen, and their leaders did not allow themselves to be led astray by some impulse of passion, certainly there would be no doubt that in general all would expressly agree to that to which nature leads them, which produces and maintains harmony even among the ignorant and unwilling. But this must be shown by us, how nature provides for the happiness of the human race in accordance with the human lot. For humans ought not to be imagined to be what they are not, however much they ought to be so. And for this reason it will be plain from what follows, that laws which spring from the concept of the supreme state, depart from the necessary law of nations, since on account of the human factor in the supreme state things which are illicit in themselves have to be, not indeed allowed, but endured, because they cannot be changed by human power.

§ 13. Of the law of nations as a whole in regard to individual nations

§ 29, part 8, Jus Nat.

§ 9.

§ 12.

§ 23, part 1, Jus Nat.

In the supreme state the nations as a whole have a right to coerce the individual nations, if they should be unwilling to perform their obligation, or should show themselves negligent in it. For in a state the right belongs to the whole of coercing the individuals to perform their obligation, if they should either be unwilling to perform it or should show themselves negligent in it. Therefore since all nations are understood to have combined into a state, of which the individual nations are members, and inasmuch as they are understood to have combined in the supreme state, the individual members of this are understood to have bound themselves to the whole, because they wish to promote the common good, since moreover from the passive obligation of one party the right of the other arises; therefore the right belongs to the nations as a whole in the supreme state also of coercing the individual nations, if they are unwilling to perform their obligation or show themselves negligent in it.

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This will seem paradoxical to those who do not discern the connexion of truths and who judge laws from facts. But it will be evident in what follows that we need the present proposition as a basis of demonstration of others which must be admitted without hesitation. And in general it must be observed that our question is one of law, for which men are fitted in their present state, and not at all of facts, by which the law is either defied or broken. For there would be no purpose in the supreme state, into which nature has united nations, unless from it some law should arise for the whole in regard to the individuals. Of what sort this is will be shown in what follows.

§ 14. How this is to be measured

§ 30, part 8, Jus Nat.

§ 13.

The law of nations as a whole with reference to individual nations in the supreme state must be measured by the purpose of the supreme state. For the law of the whole with reference to individuals in a state must be measured by the purpose of the state. Therefore, since in the supreme state too a certain right belongs to nations as a whole with reference to the individual nations, this right also must be measured by the purpose of the supreme state.

Note, § 30, part 8, Jus Nat.

Since in any state the right of the whole over the individuals must not be extended beyond the purpose of the state, so also the right of nations as a whole over individual nations cannot be extended beyond the purpose of the supreme state into which nature herself has combined them, so that forthwith individual nations may be known to have assigned a right of this sort to the whole.

§ 15. Of what sort this is

§ 31, part 8, Jus Nat.

§ 14.

Some sovereignty over individual nations belongs to nations as a whole. For a certain sovereignty over individuals belongs to the whole in a state. Therefore, as is previously shown, some sovereignty over individual nations belongs also to nations as a whole.

§ 32, part 8, Jus Nat.

That sovereignty will seem paradoxical to some. But these will be such as do not have a clear notion of the supreme state, nor recognize the benefit which nature provides, when she establishes a certain civil

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society among nations. Moreover, it will be evident in its own place that nothing at all results from this, except those things which all willingly recognize as in accordance with the law of nations, or what it is readily understood they ought to recognize. Nor is it less plain that this sovereignty has a certain resemblance to civil sovereignty.

§ 16. Of the moral equality of nations

§ 2.

§ 81, part 1, Jus Nat.

By nature all nations are equal the one to the other. For nations are considered as individual free persons living in a state of nature. Therefore, since by nature all humans are equal, all nations too are by nature equal the one to the other.

It is not the number of humans coming together into a state that makes a nation, but the bond by which the individuals are united, and this is nothing else than the obligation by which they are bound to one another. The society which exists in the greater number of humans united together, is the same as that which exists in the smaller number. Therefore just as the tallest person is no more a human being than the dwarf, so also a nation, however small, is no less a nation than the greatest nation. Therefore, since the moral equality of humans has no relation to the size of their bodies, the moral equality of nations also has no relation to the number of people of which they are composed.

§ 17. In what it consists

§ 16.

§ 78, part 1, Jus Nat.

Since by nature all nations are equal, since moreover all humans are equal in a moral sense whose rights and obligations are the same; the rights and obligations of all nations also are by nature the same.

Therefore a great and powerful nation can assume no right to itself against a small and weak nation such as does not belong to the weaker against the stronger, nor is a small and weak nation bound to a great and powerful one in any way in which the latter is not equally bound to it.

§ 18. Whether by nature anything is lawful for one nation which is not lawful for another

§ 17.

§ 170, part 1, Jus Nat.

Since by nature the rights and obligations of all nations are the same, and since that is lawful which we have a right to do, and unlawful which

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we are obliged not to do or to omit; what is lawful by nature for one nation, that likewise is lawful for another, and what is not lawful for one, is not lawful for another.

Might gives to no nation a special privilege over another, just as force gives none to one man over another. Just as might is not the source of the law of nature, so that any one may do what he can to another, so neither is the might of nations the source of the law of nations, so that right is to be measured by might.

§ 19. What form of government is adapted to the supreme state

§ 10.

§ 50, part 8, Jus Nat.

§ 16.

§ 136, part 1, Jus Nat.

§ 131, part 8, Jus Nat.

The supreme state is a kind of democratic form of government. For the supreme state is made up of the nations as a whole, which as individual nations are free and equal to each other. Therefore, since no nation by nature is subject to another nation, and since it is evident of itself that nations by common consent have not bestowed the sovereignty which belongs to the whole as against the individual nations, upon one or more particular nations, nay, that it cannot even be conceived under human conditions how this may happen, that sovereignty is understood to have been reserved for nations as a whole. Therefore, since the government is democratic, if the sovereignty rests with the whole, which in the present instance is the entire human race divided up into peoples or nations, the supreme state is a kind of democratic form of government.

The democratic form of government is the most natural form of a state, since it begins at the very beginning of the state itself and is only de facto changed into any other form, a thing which cannot even be conceived of in the supreme state. Therefore for the supreme state no form of government is suitable other than the democratic form.

§ 20. What must be conceived of in the supreme state as the will of all the nations

§ 157, part 8, Jus Nat.

§ 19.

§ 10.

§ 173, part 8, Jus Nat.

Since in a democratic state that must be considered the will of the whole people which shall have seemed best to the majority, since moreover the supreme state is a kind of democratic form of government, and is made up of all the nations, in the supreme state also that must be considered

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the will of all the nations which shall have seemed best to the majority. Nevertheless, since in a democratic state it is necessary that individuals assemble in a definite place and declare their will as to what ought to be done, since moreover all the nations scattered throughout the whole world cannot assemble together, as is self-evident, that must be taken to be the will of all nations which they are bound to agree upon, if following the leadership of nature they use right reason. Hence it is plain, because it has to be admitted, that what has been approved by the more civilized nations is the law of nations.

Prolegomena, De Jure Belli ac Pacis, § 46.

Grotius recognized that some law of nations must be admitted which departs from the law of nature, the inflexibility of which cannot possibly be observed among nations. Moreover, he does not think that this law is such that it can be proved otherwise than by precedents and decisions, and especially the agreements of the more civilized nations. We indeed shall enter upon a safer course if we point out that nations following reason ought to agree as to either this or that which has prevailed, or now prevails, among them as law—a thing which can be proved from the concept of the supreme state no less plainly than the necessary or natural law of nations can.

§ 21. Of the ruler of the supreme state

§ 20.

§ 141, part 8, Jus Nat.

§§ 30, 31.

Since in the supreme state that is to be considered as the will of all nations, to which they ought to agree, if following the leadership of nature they use right reason, and since the superior in the state is he to whom belongs the right over the actions of the individuals, consequently he who exercises the sovereignty, therefore he can be considered the ruler of the supreme state who, following the leadership of nature, defines by the right use of reason what nations ought to consider as law among themselves, although it does not conform in all respects to the natural law of nations, nor altogether differ from it.

§ 11.

Fictions are advantageously allowed in every kind of science, for the purpose of eliciting truths as well as for proving them. For example, the astronomers, in order to calculate the movements of the planets, assume that a planet is carried by a regular motion in a circular orbit concentric with the sun and about it, and, in the reckoning of time, the sun is assumed to be carried by a regular motion around

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the equator. Nay, all moral persons and, too, the supreme state itself in the law of nature and nations have something fictitious in them. Those who disapprove of such things, abundantly show that they are only superficially acquainted with the sciences. That fictitious ruler of the supreme state is believed to adapt the natural or necessary law of nations to the purpose of the supreme state, as far as human conditions allow, using the right of making laws, which we have shown above belongs to the supreme state.

§ 22. Definition of the voluntary law of nations and what it is

§ 21.

§ 965, part 8, Jus Nat.

With Grotius we speak of the voluntary law of nations, which is derived from the concept of the supreme state. Therefore it is considered to have been laid down so to speak by its fictitious ruler and so to have proceeded from the will of nations. The voluntary law of nations is therefore equivalent to the civil law, consequently it is derived in the same manner from the necessary law of nations, as we have shown that the civil law must be derived from the natural law in the fifth chapter of the eighth part of “The Law of Nature.”

And so we have a fixed and immovable foundation for the voluntary law of nations, and there are definite principles, by force of which that law can be derived from the concept of the supreme state, so that it is not necessary to rely blindly on the deeds and customs and decisions of the more civilized nations, and from this there must be assumed as it were a certain universal consensus of all, just as Grotius seems to have perceived.

§ 23. The stipulative law of nations

§ 788, part 3, Jus Nat.

§ 382, part 3, Jus Nat.

§ 789, part 3, Jus Nat.

There is a stipulative law of nations, which arises from stipulations entered into between different nations. Since stipulations are entered into between two or more nations, as is plain from the meaning of “pact,” since moreover no one can bind another to himself beyond his consent, therefore much less contrary to his consent, nor acquire from him a right which he does not wish to transfer to him; stipulations therefore bind only the nations between whom they are made. Therefore the law of nations, which arises from stipulations, or the stipulative, is not universal but particular.

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§ 22.

The stipulative law of nations has its equivalent in the private law of citizens, which has its origin in their agreements. Therefore just as the private law for citizens, derived from agreements entered into between themselves, is considered as having no value at all as civil law for a certain particular state, so also the law that nations have derived from agreements with other nations, it seems, cannot be considered as the law of nations. Therefore it is plain that the stipulative law of nations is to be accepted only in a certain general sense, in so far as through stipulations nations can bind themselves to one another and acquire certain rights, and there is a certain proper subject-matter of these stipulations, so that therefore the stipulative law of nations has regard only to those things which must be observed concerning the stipulations of nations and their subject matter in general. For the particular stipulations and the rights and obligations arising therefrom as to the states stipulating, since they are simply factitious, do not belong to the science of the law of nations, but to the history of this law or of that nation, which it enjoys in respect of certain other nations. The general theory of the stipulative law of nations could have been referred to the voluntary law of nations; whoever desires so to do, will not have the least objection from us.

§ 24. Of the customary law of nations

§ 23.

The customary law of nations is so called, because it has been brought in by long usage and observed as law. It is also frequently called simply custom, in the native idiom das Herkommen [usage]. Since certain nations use it one with the other, the customary law of nations rests upon the tacit consent of the nations, or, if you prefer, upon a tacit stipulation, and it is evident that it is not universal, but a particular law, just as was the stipulative law.

What we have just remarked about the stipulative law must likewise be maintained concerning the customary law.

§ 25. Of the positive law of nations

§ 22.

§ 23.

§ 24.

§ 22.

§ 23.

§ 24.

That is called the positive law of nations which takes its origin from the will of nations. Therefore since it is plainly evident that the voluntary, the stipulative, and the customary law of nations take their origin from

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the will of nations, all that law is the positive law of nations. And since furthermore it is plain that the voluntary law of nations rests on the presumed consent of nations, the stipulative upon the express consent, the customary upon the tacit consent, since moreover in no other way is it conceived that a certain law can spring from the will of nations, the positive law of nations is either voluntary or stipulative or customary.

Those who do not have a clear conception of the supreme state, and therefore do not derive from it the voluntary law of nations, which Grotius has mentioned, and even wholly reject it, or refer some part of it to the customs of certain nations, such recognize no other positive law of nations at all, aside from the stipulative or customary. But certainly it is wrong to refer to customs, what reason itself teaches is to be observed as law among all nations.

§ 26. General observation

§§ 2 and fol., part 1, Jus Nat.

We shall carefully distinguish the voluntary, the stipulative, and the customary law of nations from the natural or necessary law of nations, nevertheless we shall not teach the former separately from the latter, but when we have shown what things belong to the necessary law of nations, we shall straightway add, wherever it may be, why, and in what manner that must be changed to the voluntary, and here and there, when we have carefully considered it, we shall add the stipulative and the customary laws, which are by no means to be confused with the voluntary, especially since they have not been distinguished from it with sufficient care by Grotius. And the method which we have thus far used, both in the law of nature and in the other parts of philosophy already taught by us, and which we shall likewise use in the other parts, to be taught by us in their own time and order, this too we use in the law of nations, although the particular laws peculiar to some nations, which either come from stipulations or are due to customs, we do not consider, inasmuch as they are at variance with our plan, with which only those things which belong to science are in harmony. And why one must use such a method is plain from our proofs and our notes in the Prolegomena to “The Law of Nature.”

THE END OF THE PROLEGOMENA