Читать книгу The Rights of War and Peace - Hugo Grotius - Страница 7

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It may be of interest at this point in the career of Grotius to describe briefly the character of the great work which was soon to win for him a new celebrity, and materially change his prospects in life.

The inspiration of his "De Jure Belli ac Pacis" was the love of peace, yet he was far from being one of those visionaries who totally condemn the use of armed force and proscribe all war as wrong and unnecessary. On the contrary, he seeks to discover when, how, and by whom war may be justly conducted.

His plan of treatment is as follows:—

In the First Book, he considers whether any war is just, which leads to the distinction between public and private war, and this in turn to a discussion of the nature and embodiment of sovereignty.

In the Second Book, the causes from which wars arise, the nature of property and personal rights which furnish their occasions, the obligations that pertain to ownership, the rule of royal succession, the rights secured by compacts, the force and interpretation of treaties, and kindred subjects are examined.

In the Third Book, the question is asked, "What is lawful war?" which prepares for the consideration of military conventions and the methods by which peace is to be secured.

From the authority of the Empire and the Church, no longer effectual as an international agency, Grotius appeals to Humanity as furnishing the true law of nations. Beginning with the idea that there is a kinship among men established by nature, he sees in this bond a community of rights. The society of nations, including as it does the whole human race, needs the recognition of rights as much as mere local communities. As nations are but larger aggregations of individuals, each with its own corporate coherence, the accidents of geographic boundary do not obliterate that human demand for justice which springs from the nature of man as a moral being. There is, therefore, as a fundamental bond of human societies a Natural Law, which, when properly apprehended, is perceived to be the expression and dictate of right reason. It is thus upon the nature of man as a rational intelligence that Grotius founds his system of universal law.

As this law of human nature is universally binding wherever men exist, it cannot be set aside by the mere circumstances of time and place, whence it results that there is a law of war as well as a law of peace. As this law applies to the commencement of armed conflicts, war is never to be undertaken except to assert rights, and when undertaken is never to be carried on except within the limits of rights. It is true that in the conflict of arms laws must be silent, but only CIVIL laws, which govern in times of peace. Those laws which are PERPETUAL, which spring from the nature of man as man, and not from his particular civil relations, continue even during strife and constitute the laws of war. To deny these, or to disobey them, implies a repudiation of human nature itself and of the divine authority which has invested it with rights and obligations. To disavow the imperative character of these perpetual laws, is to revert to barbarism.

It is necessary, however to distinguish between Natural Law, that principle of justice which springs from man's rational nature, and Conventional Law, which results from his agreements and compacts. Natural Law remains ever the same, but institutions change. While the study of abstract justice, apart from all that has its origin in the will or consent of men, would enable us to create a complete system of jurisprudence, there is another source which must not be neglected, since men have established the sanctity of certain rules of conduct by solemn convention.

The Law of Nations does not consist, therefore, of a mere body of deductions derived from general principles of justice, for there is also a body of doctrine based upon CONSENT; and it is this system of voluntarily recognized obligations which distinguishes international jurisprudence from mere ethical speculation or moral theory. There are CUSTOMS of nations as well as a universally accepted law of nature, and it is in this growth of practically recognized rules of procedure that we trace the evolution of law international—jus inter gentes—as a body of positive jurisprudence.

It is evident that the mind of Grotius is continually struggling to establish a science upon this positive basis, and it is this which gives a distinctive character to his effort. The great writers of all ages are cited with a superfluous lavishness, not so much to support his claims by an aggregation of individual opinions—still less to display his erudition, as his critics have sometimes complained—as to give a historic catholicity to his doctrine by showing that the laws he is endeavoring to formulate have, in fact, been accepted in all times and by all men. For this purpose also, he makes abundant use of the great authorities on Roman Law, whose doctrines and formulas were certain to carry conviction to the minds of those whom he desired to convince.

It is needless, perhaps, to point out that the work of Grotius is not and could not be a work of permanent authority as a digest of international law. His own wise appreciation of the positive and historical element—the authority derived from custom—should exempt him from the pretense of absolute finality. It is the Book of Genesis only that he has given us, but it is his indefeasible distinction to have recorded the creation of order out of chaos in the great sphere of international relationship, justly entitling him to the honor accorded to him by the spontaneous consent of future times as the Father of International Jurisprudence.

It is not difficult after more than three centuries of thought and experience to point out the defects in his doctrine. If he justifies slavery, it is not without ingenuity; for, he argues, if a man may sell his labor, why not his liberty? and if the conqueror may impose his will upon the property of the vanquished, why not also upon his person? If he identifies sovereignty with supreme power without any adequate conception of its ethical basis, he is at least as advanced in his thinking as the conceptions of his time, which had not yet grasped the idea of the state as a moral organism. If he has no adequate notion of neutrality, believing it to be the duty of a nation to enlist its energies for what it deems the right side, rather than to disavow all responsibility for actions foreign to its own interests, he is at least supported in this by the opinion of the multitude even at the present time; and even among jurists the modern conception of neutrality is hardly a century old. If the new schools of jurisprudence make light of Natural Law as a foundation of public and private rights, it is not certain that Grotius may not yet be vindicated as representing a doctrine at least as clear as any other which has been substituted for it. But, finally, to all these criticisms it may be answered, that no great thinker can be justly estimated except in relation to his predecessors and contemporaries. Measured by these, Grotius stands alone among the jurists of his century for originality of thought and power of exposition.