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CHAPTER II

Prolegomena, Including Nine Rules and Thirteen Laws ¹

Rule I

Where should we begin, if not at the very beginning? Accordingly, let us give first place and pre-eminent authority to the following rule: What God has shown to be His Will, that is law. This axiom points directly [5′] to the cause of law, and is rightly laid down as a primary principle.^a

It would seem, indeed, that the very term ius [law] is derived from Iovis [ Jove] and that the same process of derivation holds good for iurare [to swear] and iusiurandum [an oath] or Iovisiurandum [an oath in the name of Jove]. Alternatively, one might trace the development of these terms to the fact that the ancients designated as iusa^b—that is to say iussa [things commanded]—those precepts which we designate as iura [laws]. In any case, the act of commanding is a function of power, and primary power over all things pertains to God, in the sense that power over his own handiwork pertains to the artificer and power over inferiors, to their superiors.

Ausonius^c has declared that, “Law is the unerring mind of God.” This was the sentiment that inspired Orpheus—and after him, all the old poets^a—to say that Themis and Diké [Right and Justice] were the judicial assessors of Jove; whence Anarchus has correctly inferred (even though he does put the conclusion to an improper use) that a given thing is just because God wills it, rather than that God wills the thing because it is just. According to the somewhat more subtle contention of Plutarch,^b however, the goddesses Right and Justice are not so much the assessors of Jove, as Jove himself is Right and Justice, and the most ancient and perfect of all laws. It is the latter view that Chrysippus also adopts^c when he asserts that Jove is the name given to “that force inherent in the constant and eternal law, which guides our lives, so to speak, and instructs us in our duties.”

The law of nature

The Will of God is revealed, not only through oracles and supernatural portents, but above all in the very design of the Creator; for it is from this last source that the law of nature is derived.^d Thus Cicero^e very wisely maintains that the study of celestial phenomena is beneficial in relation to justice, as well as in other ways, because the student “becomes acquainted with the will, plan and purpose of the Supreme Ruler and Lord, to whose nature (so say the philosophers) that true rational principle and sovereign law conform.” The following assertion made by Lucan,^f is also pertinent to this point: “And the Creator revealed to us once and for all, at our birth, whatever we are permitted to know.” According to Chrysippus,^g too (whom we quoted above), οὐ γάρ ἐστιν εὑρει̑ν τη̑ς δικαιοσύνης ἄλλην ἀρχὴν οὐδὲ ἄλλην γἑνεσιν, ἢ τὴν ἐκ του̑ Διὸς καὶ τὴν ἐκ τη̑ς κοινη̑ς φύσεως; “No beginning, no origin, can be assigned to justice other than its derivation from God and from the universal aspect of nature.”

Therefore, since God fashioned creation and willed its existence, every individual part thereof has received from Him certain natural properties whereby that existence may be preserved and each part may be guided for its own good, in conformity, one might say, with the fundamental law inherent in its origin.^a From this fact the old poets and philosophers^b have rightly deduced that love, whose primary force and action are directed to self-interest, is the first principle of the whole natural order. Consequently, Horace^c should not be censured for [5′a] saying, in imitation of the Academics, that expediency might perhaps be called the mother of justice and equity. For all things in nature, as Cicero repeatedly insists, are tenderly regardful of self, and seek their own happiness and security. This phenomenon can be observed not only in the human race, but among the beasts also and even in connexion with inanimate objects, being a manifestation of that true and divinely inspired self-love^d which is laudable in every phase of creation. As for the φιλαυτία, which is classified as a vice—in other words, immoderate self-interest—it is an excess of such love. Thus Socrates (as quoted by Xenophon^e and Plato^f) and Diogenes,^g too, have correctly maintained that justice is a virtue which makes us useful to ourselves as well as to others, so that the just man will in no way inflict injury upon himself or upon any of his members, nor will he bring pain or distress upon himself. Plutarch^h expounds this doctrine admirably, illustrating it by means of a negative simile when he declares that justice is not like oil, which doctors describe as beneficial to the body externally but injurious internally, since the just man’s highest concern is for himself. Other authorities,^a distinguishing more subtly between terms, maintain that such concern is the function not so much of justice as of that love [for self] to which we are impelled by nature; but at the same time, they admit that in human affairs the first principle of a man’s duty relates to himself.

In fact, all duty (according to the philosophers) consists in περὶ τά πως ἔχοντα πρὸς ἔμα̑ς, that is to say, in those things which in some way pertain to self. Such things, to be sure, fall under a twofold classification. For some concern us from the standpoint of good, others from the standpoint of evil, as is indicated, indeed, by the two mental attitudes of aversion and desire, attitudes implanted by nature not in man [5′ a′] alone, but in all living creatures.

The particular aspect of duty that we are about to discuss, however, is bound up not with all goods and ills, but solely with those which men can either bestow upon or take from other men, including not only concrete goods and ills but also their external effects. For only these [transferable] things can enter into any comparison that seeks to establish how much a person owes to himself, and how much to his fellow man.

Generally speaking, these good and evil things are likewise divided into two classes. The first and more important group consists of those which directly concern the body itself: for example, among the ills, death, mutilation of the members (which is akin to death) and disease; among the blessings, life with the body whole and healthy. The second group has to do with things existing outside of ourselves but neverthe-less beneficial or injurious, painful or pleasing, to us—such as, on the one hand, honour, riches, pleasure; and on the other hand, infamy, poverty, pain. Thus, when Plato^b says that justice is concerned with περὶ σώματος θεραπείαν, ἢ περὶ χρημάτων κτη̑σιν, that is to say, with the care of the body and the possession of property, he includes under the head of “property” the results consequent upon its possession.

Law I

Law II

Accordingly, from this combination of concepts, two precepts of the [6] law of nature emerge:² first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious;^a secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. The latter precept, indeed, we shall interpret with Cicero^b as an admission that each individual may, without violating the precepts of nature, prefer to see acquired for himself rather than for another, that which is important for the conduct of life. Moreover, no member of any sect of philosophers, when embarking upon a discussion of the ends [of good and evil],³ has ever failed to lay down these two laws first of all as indisputable axioms.^c For on this point the Stoics, the Epicureans, and the Peripatetics are in complete agreement, and apparently even the Academics have entertained no doubt.

The act of taking possession, and ownership

Since we ourselves are corporeal entities, other bodies are naturally able to benefit or injure us. Thus the first law is put into practice through the repulsion of one body from another, and the second law, through the attachment of one body to another. To this end, the lower animals were given their corporeal members and we, our hands and feet, as instruments for the two functions of repelling and attaching. This function of attachment is a gift from God. For He who bestowed upon living creatures their very existence, bestowed also the things necessary for existence. Some of these things, indeed, are necessary to being, while others are necessary only to well-being; or, one might say that they relate respectively to safety and to comfort. In a universal sense, moreover, inferior things were given for use by their superiors. Plants and herbs, for example, were given to the beasts, and beasts—as well as all things in general—to man,^a inasmuch as man excels in worth all other created things. However, since God bestowed these gifts upon the human race, not upon individual men,^b and since such gifts could be turned to use only through acquisition of possession by individuals, it necessarily followed that τὸ ἐσφετερισμἑνον, “what had been seized as his own” by each person should become the property of that person. Such seizure is called possessio [the act of taking possession], the forerunner of usus [6′] [use], and subsequently of dominium [ownership].^c

But God judged that there would be insufficient provision for the preservation of His works, if He commended to each individual’s care only the safety of that particular individual, without also willing that one created being should have regard for the welfare of his fellow beings,^d in such a way that all might be linked in mutual harmony as if by an everlasting covenant. Seneca^e has said: “You must needs live for others, if you would live for yourself.”

Love, then, is twofold: love for oneself, and love for others. In the former aspect, it is known as “desire”; in the latter, as “friendliness.”^f While a certain form of friendliness is discernible even within inanimate objects, and more clearly so in the lower animals, this manifestation of love burns most brightly in man, as in one who is peculiarly endowed not only with the affections shared in common with other creatures but also with the sovereign attribute of reason: that is to say, as in a being derived from God Himself, who imprinted upon man the image of His own mind. Epicharmus calls attention to this point in the following verse:^g

ὁ δἑ γε τἀνθρώπου λόγος πἑφυκ’ ἀπὸ του̑ θείου λόγου.

Man’s reason from God’s reason takes its being.

The primary law of nations

Rule II

To be sure, this rational faculty has been darkly beclouded by human vice; yet not to such a degree but that rays of the divine light are still clearly visible, manifesting themselves especially in the mutual accord of nations. For evil and falsehood are, in a sense and by their very nature, of infinite extent^a and at the same time internally discordant, whereas universal concord can exist only in relation to that which is good and true.^b Many persons, indeed, have chosen to call that very accord the secondary law of nature, or primary law of nations;⁴ and Cicero^c has said that the principle informing this law is nothing more nor less than right reason derived from the will of the gods. In another passage, the same author^d declares that, “on any matter, the consensus of all nations should be regarded as a precept of the natural law.” Heraclitus^e perceives this truth; for though he postulates the existence of two kinds of reason—λόγους, τὸν ξυνὸν καὶ τὸν ἴδιον, that is to say, a universal form of reason or understanding, and an individual form—he maintains that universal reason is the κριτήριον [criterion] and judge, so to speak, of truth, τὰ γὰρ κοινῃ̑ φαινόμενα πιστά, “on the ground that those things are worthy of faith which are commonly so regarded.” To this assertion he adds the following comment: τρἑφονται πάντες οἱ ἀνθρώπινοι νόμοι ὑπὸ ἑνὸς του̑ θείου; “All the laws of mortals rest upon one divine law.”^f Thus a second rule is derived from the first, namely: What the common consent of mankind has shown to be the will of all, that is law.

Now, men agree most emphatically upon the proposition that it behoves us to have a care for the welfare of others; for the acceptance of this obligation might almost be termed a distinguishing characteristic of man. It is for this reason that the wise philosophy⁵ of Seneca^a ascribes to the concept of good the quality of pertaining both to oneself and to others. Here we have the starting-point of that justice, properly so called, which Aristotle^b and various writers have described as being concerned with the good of others, and which Cicero^c and Apuleius^d depict as “looking outwards.” Hesiod^e offers the following admirable comment on the same subject: [7]

Τόνδε γὰρ ἀνθρωποι̑σι νόμον διἑταξε Κρονίων,

Ἰχθύσι γὰρ καὶ θηρσὶ καὶ οἰωνοι̑ς πετεηνοι̑ς

Ἐσθἑμεν ἀλλήλους. ἐπεὶ οὐ δίκη ἐστὶ μετ’ αὐτω̑ν.

Ἀνθρωποι̑σι δ’ ἔδωκε δίκην, ἣ πολλὸν ἀρίστη.

For laws were giv’n to man by highest Jove. The beasts, forsooth, the fish, the birds that soar Feed on each other, ignorant of right; On us, however, justice—best of gifts— Hath been conferred. . . .

Seneca^f has said: “Just as all the bodily members function in mutual harmony because it is to the advantage of the whole that the individual parts be preserved, even so mankind will show forbearance toward individuals because we are born for a life of fellowship. Society, too, can be kept safe from harm only by love and watchful care for its componentparts.” Elsewhere, he^a declares that, “Security must be obtained by offering security in exchange.” Herein lies that brotherhood of man, that world state, commended to us so frequently and so enthusiastically by the ancient philosophers and particularly by the Stoics, whose view Cicero^b adopts. This view is also the basis of the statement made by Florentinus,^c namely, that because of a certain kinship established among us by nature, it is sinful that man should lie in ambush for his fellow man, a precept which Cicero^d very properly ascribes to the law of nations.

The foregoing observations show how erroneously the Academics—those masters of ignorance—have argued in refutation of justice, that the kind derived from nature looks solely to personal advantage, while civil justice is based not upon nature but merely upon opinion; for they have overlooked that intermediate aspect of justice which is characteristic of humankind.^e

Law III

Law IV

Accordingly, from the First and Second Rules two laws arise, relating to the good of others, whereby the preceding laws, which relate to one’s own good, are complemented and confined within just limits.^f One of the two laws in question runs as follows: Let no one inflict injury upon his fellow. The other is the precept: Let no one seize possession of that which has been taken into the possession of another. The former is the law of inoffensiveness; the latter is the law of abstinence. As a result of the Third Law, life is rendered secure; as a result of the Fourth Law, distinctions of ownership arise, together with the well-known concept of Mine and Thine.^g

It was this concept that the ancients^h had in mind when they called Ceres “the Lawgiver” and spoke of her sacred rites as “the Lawgiver’s festival,” intimating that the establishment of laws grew out of the division of lands. The principle underlying the Fourth Law is expounded by Quintilian^a in the following terms: “If we accept the proposition that anything whatsoever that has fallen to man’s lot for his use, is the property of the person who has possession thereof, then assuredly it is a wrongful act to take away anything rightfully possessed.” In this principle of confidence, so to speak, lies the origin of human society, a way of living towards which, by the design of the Creator, man was more strongly impelled than any other living creature.^b That social impulse was the source of τὰ ξυμβόλαια, that is to say, of reciprocal acts and sentiments, and of the intermingling of one’s own goods and ills with the goods and ills of others. From the same source arose the saying that man is a god or a wolf to his fellow man.

Consequently, we feel the need of that form of justice properly [8]⁶ known as ἀρετὴ κοινωνική, or “social virtue.”^c Now, the good to which this social justice has reference is called “equality,” or ἰσονομία; the evil, “inequality,” or πλεονεξία. For just as in nature, so also in every society, that is good which is reduced in the greatest possible degree to unity; and unity connotes primarily identity, but also, in a secondary sense, equivalence, so that wherever the former quality cannot exist, the latter takes its place.

But there are two kinds of equivalence, based respectively on number and on proportion. For example, twenty exceeds fifteen, and ten exceeds five, by an equal numerical difference, that is to say, by five; whereas twenty exceeds ten, and ten exceeds five, in an equal proportional measure, or in other words, each by a half of itself. Number merely orders the parts in their relations with one another; proportion relates the parts to the whole.

Accordingly, those persons who are charged with the management of some whole, exercise proportional justice,^a which may also be called “Justice the Allotter” [i.e. distributive justice]. In conformity with this phase of justice, the head of a household allots to its various members, shares measured and weighed in proportion to their different ages and conditions. The Universe is ordered in consonance with this same justice by God Himself, called by Plato “the Geometer,” precisely because He administers law and equity according to a certain principle of proportion, as the above-mentioned author explains in the Gorgias;^b for the end sought by the geometrician is the reduction of all things to equality.

Law V

Law VI

The other kind of justice, which we now choose to designate as the Compensator [i.e. compensatory justice], is concerned not with communal affairs but with those peculiar to the individual. Thus compensatory justice does not relate the parts to the whole; that is to say, it weighs things and acts without regard for persons. The function of such justice is twofold, namely: in regard to good, the preservation thereof; in regard to evil, its correction. Hence these two laws arise: first, Evil deeds must be corrected; secondly, Good deeds must be recompensed (or, to use the Greek term, ἀντευποιητἑον).

For this process of relating the component elements to one another may be described as made up in part of the refluent action of the laws of the first order [Laws I and II], and in part of the outward-flowing action of the laws of the second order [Laws III and IV].⁷ In itself, the process is mutual and alternating. Here we have the origin of τὸ ἀντιπεπονθός, “retaliation”—or, in the language of the Scholastics, “restitution”—the task of compensatory justice. In accordance with this form of justice, he who has derived gain from another’s good deed repays that exact amount to the benefactor whose possessions have been diminished, while he who has suffered loss through the evil deed of another receives the exact equivalent of that loss from the malefactor whose possessions have been increased. Hence it follows that there are two kinds of obligation: in the terminology of the philosophers^a ἑκούσιον καὶ ἀκούσιον, “voluntary and involuntary”; in that of the jurists,^b obligation ex contractu [i.e. arising from a contract] and obligation ex delicto [8′] [i.e. arising from wrongdoing]. In both cases, the person who has gained is regarded as the debtor and he who has lost as the creditor, the former having been enriched by the precise amount of the latter’s impoverishment; and if the amount thus lost is taken from the debtor and given to the creditor,^c that is true justice. Such justice requires that the thing taken shall be returned in the case of a theft just as in the case of a loan, and that, even as payment is made of a purchase price or of revenue from a contract, so also reparation for loss inflicted and satisfaction for injuries should be provided.

It sometimes happens, however, that things properly pertaining to the parts tend to affect the whole, even though they are not directed toward the whole as such. In these circumstances, one must weigh, not the merits of persons, but the value of the things or the force of the actions involved. This is the basis of rewards and punishments. For the whole world should be grateful to him who has bestowed a universal benefit. The devisers of useful inventions, for example, have received praise and honour from all mankind. Conversely, those persons who have inflicted universal injury, no less than those who have injured a single individual, ought to give proportionate satisfaction. In a sense, however, an injury inflicted even upon one individual is the concern of all, and this is true primarily because of the example set; just as it is the concern of the whole body that its various members should be sound, particularly as a guard against contagion.

Now it may seem strange, inasmuch as punishment is hurtful to the person on whom it is inflicted, that justice, which is motivated by solicitude for all, should be directed to the harm of any individual. In order to throw light on this point, it may be observed that no art ever sets up evil as its ultimate goal, and that nevertheless there are times when an art makes use of evil—though only in cases of necessity—as an intermediate measure without which good cannot be attained. Doctors will never inflict pain upon the sick, unless considerations of health demand that they do so; nor will they amputate any part of the body, save in the interest of the body as a whole. Thus pain and mutilation, originally evil in themselves, may assume the quality of goodness because they lead to a good greater than the one to which as evils they were diametrically opposed.

With a view to clarifying the foregoing simile (which is frequently employed in this connexion by the philosophers), we must draw a distinction between different kinds of punishment. Gellius^a has observed that there are three kinds according to Taurus, and two, according to Plato.^b Taurus, however, included τιμωρίαν “vengeance,”⁸ which pertains properly to relations between individuals; so that only two kinds pertinent to the whole remain to be considered. Of these two, the first is chastisement, referred to by Taurus as νουθεσία [admonition], κόλασις [correction, punishment], or παραίνεσις [exhortation], and also, by Plato,^c as εὐθύνη [a setting straight, correction]. Chastisement involves an attempt to correct the particular individual punished and also to [9] render him more useful to humanity. It is a form of θεραπευτικὸς τρόπος, or “curative procedure,” which operates (as Aristotle^d explains) through the application of opposites [e.g. by applying pain to remedy a condition arising from an excess of pleasure; or loss, to remedy the effect of excessive gain]. The second type of punishment is παράδειγμα, that is to say, exemplary punishment, which by arousing the fear of a like penalty deters others from sinning. This type is, so to speak, προφυλακτικὸς τρόπος, “a preventive procedure.” The first kind of punishment has as its aim the correction of one individual; the second kind is aimed at the correction of all other persons, in addition to that one. The attainment of these two objectives leads to a third: universal security. For if all persons conduct themselves aright, it necessarily follows that no one will suffer wrongfully.

These are the three ends sought by the law (so Seneca^a says) in the punishment of wrongdoing: ends which coincide for the most part, and to such an extent, indeed, that even capital punishment, according to the Platonists,^b is in a sense beneficial to the guilty parties, whenever there is no other remedy for their incurably diseased spirits. It is clear, then, that the following assertion made by Plato^c is entirely true: οὐ γὰρ ἐπὶ κακῳ̑ δίκη γίγνεται οὐδεμία; “No legal punishment has evil as its aim.” As the Scholastics^d have maintained, it is not proper for the spirit of the avenger to dwell with pleasure upon any person’s ill fortune. According to the teachings of Seneca,^e he who inflicts vengeance in the right way exacts punishment not eagerly and for its own sake, but because it behoves him to do so; not as if vengeance were sweet, but on the ground that it serves a useful purpose; not in anger, but in the exercise of caution. Such a person is intent upon future acts that can be averted, rather than upon acts that are past and irrevocable; and, as Plato^f observes, he imposes punishment not because sin has been committed but in order that its commission may be prevented. A part of these precepts regarding punishment is so necessary, indeed, that some persons^g have described justice itself as τιμωρίας ἀπαίτησιν παρὰ τω̑ν προηδικηκότων, “the exaction of a penalty from those who have previously committed a wrongful act.” Such is the purport of the legal maxims, “Evil deeds ought not to go unpunished,” “Indulgence should not be shown to human wickedness,” and various similar sayings.

But that other law, [the Sixth,] regarding repayment for good deeds, is characterized by an equity no less manifest. We find this passage in Xenophon:^a τί δἑ τοὺς εὐ̑ ποιου̑ντας, ἀντευεργετει̑ν οὐ πανταχου̑ νόμιμόν ἐστι; νόμιμον ἔφη; “‘Again, is it not the universal law, that we should repay with benefactions those persons who have deserved well of us?’ ‘To be sure, it is,’ said he.” The jurists,^b too, hold that πρὸς [9′] ἀντίδωρα, “the obligation to repay,” is a natural obligation, and that it is unjust in the eyes of nature for one individual to be enriched at the expense of another, or for any person to suffer loss in consequence of his own good deed. Seneca^c declares that, “The maxim, ‘Repay what you owe,’ is just in the highest degree, and constitutes a pronouncement of the law of nations.” [10]

Liberty and ownership

However, since the exchange of good things is voluntary (as we have already pointed out), the extent of the credit involved is measured by the will of the creditor. For there is one kind of good that is so called in an absolute sense, and there is another kind that is good from the standpoint of a particular individual. Indeed, to borrow Aristotle’s^d admirable explanation, ὅσα περὶ ἕκαστον νου̑ς ἀποδίδωσιν ἑκάστῳ του̑τ’ ἐστιν ἑκάστῳ ἀγαθόν; “Whatever each person’s understanding has ruled for him regarding a given matter, that to him is good.” For God created man αὐτεξούσιον, “free and sui iuris,” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own. Moreover, this view is sanctioned by the common consent of all nations. For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will?^a And liberty in regard to actions is equivalent to ownership in regard to property.^b Hence the saying: “Every man is the governor and arbiter of affairs relative to his own property.”^c To be sure, one’s will may undergo change, but not to the extent of deceiving others;^d that is to say, not to the extent of winning another person over to a state of credulous confidence advantageous or pleasurable to oneself^e but for the most part harmful to that other individual. For even if no additional injury is involved, it is in any case an evil to be deceived in one’s belief. Plato^f put this thought in the form of a question: τὸ ἐψευ̑σθαι τη̑ς ἀληθείας κακόν; [Or is it not an evil to be deceived concerning the truth?] Assuredly, no just man will be the cause of such an evil to his fellow man.

Rule III

From the foregoing considerations the rule of good faith is derived: What each individual has indicated to be his will, that is law with respect to him.^g With this rule the old saying agrees, that no injury^h is committed against a person who is willing; as does also the traditional maxim that nothing else is so congruous with natural equity and the good faith of mankind, as is the observance of agreements which have been accepted among the various parties.ⁱ Thus Cicero,^j too, declares that good faith is the foundation of justice.

Pacts

But there is a difference between tacit indication of will and express indication thereof. Tacit indication is effected by giving any kind of sign; express indication, by the means which God granted to man alone for this very purpose, namely, the medium of speech.^k This gift is [10′] regarded as so sacred and inviolable an instrument for the interchange of blessings and the reciprocal intimation of human will that, in the eyes of all men, there is no more grievous disgrace than that attached to lying.^a Herein lies the origin of pacts, which is necessarily bound up with the Sixth Law, as has been indicated above. It was this law that Simonides had in mind when he proposed the following definition of justice: “To speak the truth, and to pay back what has been received.”^b The Platonists, moreover, frequently refer to justice as ἀλήθειαν, a term translated by Apuleius^c as “trustworthiness” [ fidelitas].

The commonwealth and citizens

When it came to pass, after these principles had been established, that many persons (such is the evil growing out of the corrupt nature of some men!) either failed to meet their obligations or even assailed the fortunes and the very lives of others, for the most part without suffering punishment—since the unforeseeing were attacked by those who were prepared, or single individuals by large groups—there arose the need for a new remedy, lest the laws of human society be cast aside as invalid.^d This need was especially urgent in view of the increasing number of human beings, swollen to such a multitude that men were scattered about with vast distances separating them and were being deprived of opportunities for mutual benefaction. Therefore, the lesser social units began to gather individuals together into one locality, not with the intention of abolishing the society which links all men as a whole, but rather in order to fortify that universal society by a more dependable means of protection, and at the same time, with the purpose of bringing together under a more convenient arrangement the numerous different products of many persons’ labour which are required for the uses of human life. For it is a fact (as Pliny^e so graphically points out) that when universal goods are separately distributed, each man’s ills pertain to him individually, whereas, when those goods are brought together and intermingled, individual ills cease to be the concern of any one person and the goods of all pertain to all. In this matter, too, as in every other, human diligence has imitated nature, which has ensured the preservation of the universe by a species of covenant binding upon all of its parts. Accordingly, this smaller social unit, formed by a general agreement for the sake of the common good^a—in other words, this considerable group sufficing for self-protection through mutual aid, and for equal acquisition of the necessities of life—is called a commonwealth [Respublica]; and the individuals making up the commonwealth are called citizens [cives].

This system of organization has its origin in God the King, who rules the whole universe and to whom, indeed (so the philosophers^b declare) nothing achieved on earth is more acceptable than those associations and assemblies of men which are known as states [civitates]. According to Cicero,^c Jupiter himself sanctioned the following precept, or law: All things salutary to the commonwealth are to be regarded as legitimate and just.

There is agreement on this point, moreover, among almost all peoples, for in every part of the world we find a division into just such united groups, with the result that persons who hold themselves aloof from this established practice seem hardly worthy to be called human beings. Thus one might almost say that the ultimate infamy is the condition described in the words^d ἀφρήτωρ, ἀθἑμιστος, ἀνἑστιος, “a lawless man, without tribe or hearth.”

In addition to the common opinion of mankind, another factor has played a part: the will of individuals, manifested either in the formal acceptance of pacts, as was originally the case, or in tacit indication of consent, as in later times, when each individual attached himself to the body of a commonwealth that had already been established.^e For a commonwealth, even though it is composed of different parts, [11] constitutes by virtue of its underlying purpose a unified and permanent body, and therefore the commonwealth as a whole should be regarded as subject to a single law.^a 11 a]

Now, within this corporate whole, which is in a sense a condensed version of that larger entity, [the universal society established by nature,] the functions of the two forms of justice above mentioned, [i.e. distributive and compensatory justice,] are revealed in a much clearer light. For distributive justice allots public possessions to various owners on a comparative basis of individual merit, and assigns duties and burdens to the various citizens in accordance with the strength of each. Compensatory justice, on the other hand, is concerned not only with the preservation of equality among individuals, but also with the bestowal of appropriate honours and rewards upon deserving patriots, and with the punishment of persons who are injuring the community. Furthermore, this same form of justice shows us how acts directed to individuals are of interest to the whole, for it confers civic crowns as well as triumphal honours, and does not confine its public judgements to cases of high treason, but on the contrary demands punishment also for homicides, forgers, and similar malefactors. Such functions, of course, are in quite close accord with the law of the society founded by nature.

Law VII

Law VIII

It seems, however, that there are laws peculiar to the civil covenant, which are derived from the three rules above stated and which extend beyond the laws already set forth, as follows: first, Individual citizens [11] should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals;^b secondly, Citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole. In relation to the former precept, Plato^c calls citizens βοηθούς, and in relation to the latter, he calls them κοινωνούς, that is to say, “auxiliaries” of one another, and “partners.”

These two laws, then, are directed in a certain sense to the common good, though not to that phase of the concept with which the laws of the third order [Laws V and VI] are concerned, namely, the good of the different individuals composing the community. Laws VII and VIII relate rather to the common good interpreted as the good of the unit and therefore [in a subordinate sense] as one’s own. Accordingly, although the order of presentation of the first set of laws and of those following immediately thereafter has indicated that one’s own good takes precedence over the good of another person^a—or, let us say, it indicates that by nature’s ordinance each individual should be desirous of his own good fortune in preference to that of another, which is the purport of the proverbs, “I myself am my own closest neighbour,” γόνυ κνήμης ἔγγιον [My knee is closer than my shin], “My tunic is closer than my cloak”—nevertheless, in questions involving a comparison between the good of single individuals and the good of all (both of which can correctly be described as “one’s own,”^b since the term “all” does in fact refer to a species of unit), the more general concept should take precedence on the ground that it includes the good of individuals as well.^c In other words, the cargo cannot be saved unless the ship is preserved. Hierocles^d says: χρὴ τὸ κοινὸν του̑ κατ’ ἰδίαν μὴ χωρίζειν, ἀλλ’ ἒν ἔγει̑σθαι καὶ ταὐτόν, τό τε γὰρ τῃ̑ πατρίδι συμφἑρον κοινόν ἐστι καὶ τω̑ν κατὰ μἑρος ἑκάστῳ. “That which is public should not be separated from that which is private [. . .].⁹ For whatever is beneficial for one’s country [as a whole] is likewise of common [advantage] to the various parts thereof.” The speech of Pericles, as recorded by Thucydides,^e clarifies this very problem of why and to what extent private well-being is subordinate to public well-being. Pericles is represented as speaking thus:

ἐγὼ γὰρ ἔγου̑μαι πόλιν πλείω ξύμπασαν ὀρθουμἑνην ὠφελει̑ν τοὺς ἰδιώτας, ἢ καθ’ ἕκαστον τω̑ν πολιτω̑ν εὐπραγου̑σαν, ἁθρόαν δὲ σφαλλομἑνην. καλω̑ς μὲν γὰρ φερόμενος ἀνὴρ τὸ καθ’ ἑαυτὸν, διαφθειρομἑνης τη̑ς πατρίδος, οὐδὲν ἡ̑σσον ξυναπόλλυται. κακοτυχω̑ν δὲ εὐ εὐτυχούσῃ, πολλῳ̑ μα̑λλον διασώζεται. ὁπότε οὐ̑ν πόλις μὲν τὰς ἰδίας ξυμφορὰς οἵα τε φἑρειν, εἱ̑ς δὲ ἕκαστος τὰς ἐκείνης ἀδύνατος, πω̑ς οὐ χρὴ πάντας ἀμύνειν αὐτῃ̑; καὶ μὴ, ὃ νυ̑ν ὑμει̑ς δρα̑τε, ται̑ς κατ’ οἰ̑κον κακοπραγίαις ἐκπεπληγμἑνοι του̑ κοινου̑ τη̑ς σωτηρίας ἀφίεσθε. 11 b]

For it is my belief that private citizens, too, derive more benefit from a state which is successful as a whole, than from one where individual interests flourish but where the state itself, as an entity, is falling into ruin. For even he whose personal fortunes are well invested, must nevertheless perish if his country is destroyed; while on the other hand, if some individual within a prosperous state is not particularly fortunate, he is still far more likely to be preserved unharmed through the latter. Accordingly, since the state is undoubtedly able to endure the misfortunes of private citizens, whereas the citizen cannot in like manner endure public misfortune, how can it be otherwise than fitting that all persons take counsel together for the state and for its defence, instead of adopting the course which you now follow in betraying the commonwealth because you are stunned, so to speak, by your private losses?

Livy^a summed up this view in the following concise statement: “While the state remains unharmed, it will easily answer for the safety of private property, too. In nowise will you be able to protect your own interests by betraying the public interest.” [11]

Lex, properly so called

Moreover, since it is the will involved that constitutes the measure of a good, as we have already pointed out, it follows that the will of the whole group prevails in regard to the common good, and even in regard to the good of individuals, in so far as the latter is subordinate to the former. For the individual members of the group have themselves consented to this arrangement, and one of the various attributes of free will is the power to accommodate one’s own will to that of another.^a The will of all, when applied to all, is called lex [statutory law]. This law proceeds from God, wherefore it is proclaimed to be^b εὕρημα καὶ δω̑ρον θεου̑, “the invention and gift of God.” It is approved by the common consent of all mankind, a point borne out by the words of Chrysippus: νόμος γὰρ τω̑ν φύσει πολιτικω̑ν ζώων προστατικός; “for lex is the guardian of those living beings who are by their natures adapted to civil life.”^c In short, lex rests upon the mutual agreement and the will of [11′] individuals, and with this fact in mind, Demosthenes and Plato sometimes refer to it as κοινὴ πόλεως συνθήκη, “the common pact of the state.”^d

Rule IV

Municipal law

Thus, on the basis of the earlier rules, the following additional rule has developed: Whatever the commonwealth has indicated to be its will, that is law [ius] in regard to the whole body of citizens. This principle is the source of that branch of law described by the philosophers as θετικόν [positive], or νομικόν [conventional], or even ἴδιον [particular, domestic],¹⁰ and by the jurists as “municipal law.” It is law not in an absolute but in a relative sense.^e The distinction may be illustrated by means of the following analogy: if an ox is exchanged for a sheep, the objects exchanged are certainly not equal in themselves, but equal merely in that the contracting parties have been pleased to make them so. Thus it is quite understandable that what would not otherwise be illicit should become so in this relative sense.^f Nor is it strange that laws of the kind in question should change with their cause^a—that is to say, in accordance with the human will—while natural precepts, based as they are upon a constant cause, remain constant in themselves; or that the former should vary in different localities, since the various communities differ, of course, in their conception of what is good.

A Judgement [or Judicial Pronouncement]

The will of the whole, when applied to particular individuals with the public good in view, becomes a “judgement.” For, owing to the fact that men (repeatedly carried away not by true self-love but by a false and inordinate form of that sentiment, the root of every evil) were mistaking for equality that which was in point of fact disproportionate ownership, and because this false conception was giving rise to dissension and tumult, evils which it was important to avoid for the sake of concord and public tranquillity, the state intervened in the role of arbiter among the contending parties, and divided the various portions equitably. [11′ a] This is the point made by Democritus^b when he says: οὐκ ἂν ἐκώλυον οἱ νόμοι τὴν ἕκαστον κατ’ ἰδίην ἐξουσίαν, εἰ μὴ ἕτερος ἕτερον ἐλυμαίνετο. φθόνος γὰρ στάσιος ἀρχὴν ἀπεργάζεται. “Assuredly, the laws would not have prohibited that each person should live in accordance with his own free will, had there been no tendency on the part of any man to injure his fellow. For it is ill will that paves the way for civil discord.” The origin of judgements, then, is the same as the origin of laws. For those persons are called “princes,”^c

δικάσπολοι οἵ κε θἑμιστας

ἐκ Διὸς εἰρύαται.

Who to the nations of the world hand down The sacred laws of Jove. . . .

In like vein, the poet above quoted wrote:^a

εἱ̑ς βασιλεὺς ᾡ̂ ἔδωκε Κρόνου παι̑ς ἀγκυλομήτεω

σκη̑πτρόν τ’ ἠδὲ θἑμιστας.

Let one king rule, he to whom Saturn gives The golden sceptre and the judge’s robe!

Yet another author has said:^b

μεσταὶ δὲ Διὸς πα̑σαι μὲν ἀγυι̑αι,

πα̑σαι δ’ ἀνθρώπων ἀγοραί.

For Jove’s divinity fills all the towns And forums of mankind. [11]

Rule V

Accordingly, even though the precepts of nature permitted every individual to pronounce judgement for himself and of himself, it is clear that all nations deemed it necessary to institute some orderly judicial system, and that individual citizens gave general consent to this project. For the latter, moved by the realization that otherwise their own weakness would prevent them from obtaining their due, bound themselves to abide by the verdict of the state. Indeed, as is quite commonly acknowledged, the very nature of jurisdiction renders it absolutely impossible for any jurisdiction to be established save by general consent.^c This fact is brought out by the following rule: Whatever the commonwealth has indicated to be its will, that is law for the individual citizens in their mutual relations.

A Judgement

Law IX

The Fifth Rule differs from the Fourth, in that a judicial pronouncement differs from a precept of municipal law. For such a pronouncement is law made applicable to a particular case. Therefore, in so far as municipal law is concerned, the precept of prime importance for the preservation of human society is the one that makes judicial procedure a [12] requisite. This precept runs as follows: No citizen shall seek to enforce his own right against a fellow citizen, save by judicial procedure.^a

Now, the Ninth Law is applicable even to the state itself; for the state is obliged to proceed in accordance with judicial usage when involved in any contention with individuals.^b Nevertheless, since the state has no superior, it is necessarily the judge even of its own cause. Thus the assertion made by Tacitus^c was true, namely, that by a provision emanating from the Divine Will, the people were to brook no other judge than themselves.

Magistrates

In the light of the foregoing observations, it is clear that the civil power which manifests itself in laws and judgements^d resides primarily and essentially within the state itself; for just as power over individuals and their possessions pertains in the nature of things to those individuals, even so there can be no power over all persons and over their goods unless it be a power pertaining to all. On the other hand, just as in private matters we contract obligations or acquire benefits not through our own actions alone but also through the agency of those whom we have placed in charge of our affairs (for it makes no difference whether we perform directly or by proxy^e any act that we are permitted to perform), so by a similar process it came to pass, as customarily occurs even now in the case of the larger social units, that society, exercising its lawful power over individuals, delegated these functions in whole or in part to specific persons from among its own members. For not every individual in the various nations was free to devote his time to the administration of civil affairs; and furthermore, certain situations were wont to arise which were more satisfactorily handled by a few representatives. Those who are entrusted with such a commission are called, in Greek, ἄρχοντες [archons]; in Latin, magistratus [magistrates].

At this point, it is opportune to note that some contracts look to the advantage of both contracting parties in an equal degree, whereas others are drawn up for the benefit of one party only, with the implication that the omission in regard to the party not specifically benefited will be repaired by the supplementary factor of his willingness, inasmuch as this factor connotes a disposition to be content with simple esteem in exchange for the costs or labour involved. Thus a lease differs from a commodate, barter from donation and a partnership from a mandate gratuitously undertaken. Both of the latter two items are included in the above-mentioned concept of magistracies, each from a different standpoint. For magistrates, in so far as they themselves are citizens, reap on their own behalf the harvest of their administrative labours, namely, the public good;^a on the other hand, in so far as they are stewards of the state, they have been appointed to their posts not for their own but for the public welfare,^b very much as if they were the pilots of a ship.

Law X

Law XI

Consequently, in this connexion also two laws exist, laws inherent in the contract of [magisterial] mandate by its very nature: first, The magistrate shall act in all matters for the good of the state; secondly, The [12′] state shall uphold as valid every act of the magistrate. Seneca^c rightly maintains, with reference to the prince and the state, that we cannot dispense with either one, save to the destruction of both: “for just as the former needs supporting strength, so does the latter need a head.” If we turn back here in order to trace the foregoing assertions to the basic principles on which they rest, it will readily become apparent, in the light of the general consent given by the state and the sanctity with which all peoples invest the title of magistrate, that the author of this arrangement, [i.e. this relationship between prince and state,] is none other than God Himself. Such is the purport of the saying,^d ἐκ δὲ Διὸς βασιλη̑ες, “Kings are from Jove.”

Rule VI

Rule VII

The power thus inherent in the [magisterial] mandate is the basis, moreover, of two rules which are connected with the Fourth and Fifth Rules, and which serve to confirm, in the first instance, the authority of legislators, and in the second instance, the authority of judges. I refer to the following precepts: first, What the magistrate has indicated to be his will, that is law in regard to the whole body of citizens; and secondly, What the magistrate has indicated to be his will, that is law in regard to the citizens as individuals.^a

The Secondary law of nations

Rule VIII

A supplementary observation should be introduced at this point, namely: that there exists a species of mixed law, compounded of the [primary] law of nations and municipal law, and designated in correct and precise terminology as “the secondary law of nations.”^b For just as the common good of private persons gave rise to the precepts above set forth, so also, owing to the existence of a common good of an international nature, the various peoples who had established states for themselves entered into agreements concerning that international good. From this circumstance another rule arose, a rule modelled on the fourth, which in turn had derived its basic principle from the second and third and, consequently, from the first. According to this Eighth Rule, Whatever all states have indicated to be their will, that is law in regard to all of them.

As illustrations of this precept, one might mention the inviolability of ambassadors^c (to whom all peoples organized in the form of a state accord equal sanctity), various matters relating to the burial of the dead^d and other institutions of a similar kind. [12′ a]

New explanation

Such institutions, indeed, are divided into two classes. For some have the force of an international pact, as in the cases just mentioned; others lack that force, and these I should prefer to classify under the head of accepted custom rather than under the head of law.

Nevertheless, even these consuetudinary institutions are frequently described as forming a part of the [secondary] law of nations. This occurs, for example, in connexion with the provisions relative to servitude, to certain kinds of contract, and to order of succession, provisions which have been adopted in identical form—either imitatively or as a coincidence—by all or at least by a majority of nations, in accordance with their separate and individual interests. It is permissible for individual states to renounce such institutions, because of the very fact that the latter were established not by common [international] agreement but by the respective states, acting singly; just as, in the case of a given political community, not everything customary among the majority of persons will forthwith constitute law, but only that which concerns the mutual relations of the citizens. For there are many customary practices of a private rather than a public character (such as the vast number of customs recorded in the compilations of antiquarians, connected with clothing, banquets, or funerals) which the head of any household is free to discard at will even though they have been generally accepted.

Law XII

Among the other precepts of the law of nations—those binding upon the various peoples as if by force of contract—the most important [12′] is the one which resembles the first precept of municipal law [Law IX], and which may be worded thus: Neither the state nor any citizen thereof shall seek to enforce his own right against another state or its citizen, [13] save by judicial procedure. The necessity for this precept is indeed self-evident, and can be deduced from the observations already set forth.

New explanation

But a new difficulty presents itself at this point, one which did not appear in connexion with municipal law. For citizens ὑποτάσσονται [are subject] to their respective states, and therefore, both in disputes with one another and in disputes with the state, they rightly submit to the judgement of the latter; whereas one state [οὐχ] ὑποτάσσεται, but rather, ἀντιτάσσεται—that is to say, it is not in subjection but in contraposition—to another state, and citizens of the one are likewise contraposed to citizens of the other. While it was readily agreed, of course, that the judicial function should be exercised by a state, there was a possibility of disagreement as to which of two states should be the one to discharge this function; for each of them, indeed, could refer to those famous lines:^a

δίκαιοι δ’ ἐσμὲν οἰκου̑ντες πόλιν

αὐτοὶ καθ’ αὑτοὺς κυρίας κραίνειν δίκας.

All we who dwell within these city walls, Have power to execute our courts’ decrees.

Truly, there is no greater sovereign power set over the power of the state and superior to it, since the state is a self-sufficient aggregation. Nor was it possible for all of the nations not involved in a dispute to reach an agreement providing for an inquiry by them into the case of each disputant.

Rule IX

Thus it was necessary to settle any controversy of this kind by resorting to some distinction, such as that incorporated in the following rule: In regard to judicial procedure, precedence shall be given to the state which is the defendant, or whose citizen is the defendant; but if the said state proves remiss in the discharge of its judicial duty, then that state shall be the judge, which is itself the plaintiff, or whose citizen is the plaintiff. As a matter of fact, such disputes could not have been settled in any other way. For two parties—the plaintiff and the defendant—are involved in every lawsuit, and in the situation which we are discussing it was absolutely necessary that the state representing one of the parties should be given the role of judge; so that the most suitable procedure consisted in bringing the case first of all before the state which could most easily execute the judgement, in other words, the state said to be in possession of the surplus whose seizure would result in an equitable distribution of the whole. Treaties between friendly nations, too, are usually drawn up in accordance with this principle. For example, in the treaty between the Gauls and Hannibal, it was provided that, if the Gauls accused a Carthaginian, the case should be tried by the Carthaginians; whereas, if [13′] the latter accused a Gaul, then Gallic women^b (for in Gaul the female sex enjoyed great authority, even in public affairs) should adjudicate the dispute. Reasoning in the same manner, Demophoon replied to Eurystheus, King Tatius to the Laurentines, the Athenian people to Alexander, and others on a great many occasions to yet other parties, when they were ordered to hand over certain fellow countrymen for punishment, that they themselves would administer the punishment in accordance with justice and the laws, if anyone should bring forward an accusation.

On the other hand, if a state stubbornly defends an injury inflicted by its citizens or (as more frequently happens) by itself,^a and if it neither confesses that the injury has been committed nor makes amends therefor, then, to be sure, the conduct of the trial passes by the aforesaid natural law to the other party, namely, the state that has complained of injury suffered either by itself or by one of its citizens. Accordingly, in cases of this kind, the mere passing of judgement in any form whatsoever will not suffice, as it does when a judge lays down the law within a single state. For it is not as the result of a compact that one state has power over another, but rather by the force of nature, which allows every individual to seek his own right. Therefore, the existence of such a right is a preliminary requisite. This is the significance of the universally accepted doctrine^b that one state is made subject to another by transgressing. For whosoever wages war justly must become to that extent the judge of his adversary, or (as Plato^c has said), σωφρονιστής, “censor and chastiser” of the latter, turning back of necessity to the system in force under the law of nature, which permitted each individual to be the judge of his own cause.

Up to this point, we have been discussing laws that accord with established usage.

Law XIII

All of these precepts are of a general and necessary character, save that they are naturally and implicitly subject to one exception:^d that is to say, whenever a case arises in which the laws appear to conflict with one another—a situation described by the rhetoricians as τὴν κατὰ περίστασιν μάχην, “a conflict produced by circumstances”—the principle embodied in the superior law is upheld, and the inferior law is set aside. Accordingly, the law of all laws, so to speak, may be stated as follows: In cases where [the laws] can be observed simultaneously, let them [all] be observed; when this is impossible, the law of superior rank shall prevail.^a

Now, this very point as to which law is of superior rank, may be determined on the dual basis of the origin and the purpose of the precepts involved. For, from the standpoint of origin, the divine law is superior to human law, and the latter to civil law.^b From the standpoint of purpose, that which concerns one’s own good is preferred to that which concerns another’s good; the greater good, to the lesser, and the removal of a major evil, to the promotion of a minor good. If, for example, your life is imperilled in the wilderness as the result of an attack from some individual, under circumstances of time and place that do not permit of recourse to a judge, you will rightly defend yourself, disregarding the Ninth Law, relative to judicial procedure.^c For that matter, not even the Third Law, which forbids you to injure another, will be an obstacle to such righteous self-defence; for otherwise you would not be able to exercise your right under the First Law, which commends your own [14] life to your care.^d Similarly, if any person holds property of mine in his possession without reimbursing me for it, and if that person is preparing for flight so that there is no hope of recalling him for trial, then I must have recourse to the Sixth Law, which requires that good be done to the doers of good, or in other words, that the loss [suffered by the benefactor] be compensated by gain,^e since the above-mentioned precept regarding judicial procedure ceases to apply. Nor will the Fourth Law, forbidding the seizure of another’s property, serve as an obstacle to my recovery of compensation contributory to my livelihood in accordance with the Second Law. For no one should be compelled to throw away his own property. But as soon as that imminent peril of death or loss shall cease, it will be obligatory to observe the different laws, no longer in mutual conflict, at one and the same time.

We have seen what constitutes a “right” (ius); and from this concept we derive also the definition of a “wrong” or “injury” (iniuria), guided by the basic belief that this term refers to whatever is done in opposition to right.^a Accordingly, that action is just whereby a right is awarded to the party to whom it is conceded by the various rules and laws, whereas actions of a contrary nature are unjust.

War

Just war

Unjust war

Public war

Civil war

Foreign war

Private war

Seizure of prize or booty

Now, even as actions have their inception in our minds, so do they culminate in our bodies, a process which may be called “execution.” But man has been given a body that is weak and infirm, wherefore extracorporeal instruments have also been provided for its service. We call these instruments “arms.” They are used by the just man for defence and [lawful] acquisition, by the unjust man, for attack and seizure. Armed execution against an armed adversary is designated by the term “war.” A war is said to be “just” if it consists in the execution of a right, and “unjust” if it consists in the execution of an injury. It is called “public” when waged by the will of the state, and in this latter concept the will of magistrates (e.g. princes) is included. Moreover, public war may be either “civil” (when waged against a part of the same state) or “foreign” (when waged against other states). What is known as a “war of allies” is a form of foreign war. Those which are waged otherwise [than by the public will], are “private” wars, although some authorities^b have preferred to describe such conflicts as “quarrels” rather than as “wars.” These conflicts, too, may be either civil or foreign. In the present work, the terms “seizure of prize,” “seizure of booty,”¹¹ are used to refer to the acquisition of enemy property through war.