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The Law of War and Peace (1625)

by Hugo Grotius

BOOK 2, CHAPTER 26
On Just Causes for War Waged by Those Who Are Under the Rule of Another

I.     Who may be said to be under the rule of another.
WE have dealt with those who are independent of any control. There are others in a condition which requires them to render obedience, as sons in a household, slaves, subjects, also individual citizens considered in relation to the body politic of their state.

II.     What those under the rule of another should do if they are summoned to share in deliberation, or have a free choice of action.
If those under the rule of another are admitted to a deliberation, or there is given to them a free choice of going to war or remaining, at peace, they should be governed by the same rules as those who, at their own discretion, take up arms for themselves or on behalf of others.

III.     If those under the rule of another should be ordered to go to war, and should believe the cause of the war to be unjust, they ought not to serve.
1.   If those under the rule of another are ordered to take the field, as often occurs, they should altogether refrain from so doing; if it is clear to them that the cause of the war is unjust. That God must be obeyed, rather than men, was said not only by the Apostles, but also by Socrates; and among the learned men of the Jews is found an opinion indicating that one must no longer obey a king who issues commands contrary to the law of God. There has been preserved this saying of Polycarp at the point of death: ‘To authorities and powers ordained of God we have learned to render the honor which is fitting and which in no way harms us.’

Paul the Apostle said: ‘Children, obey your parents in the Lord; for this is right.’ On this Jerome comments thus: ‘It is a sin on the part of children not to obey their parents; and since parents may order something wicked, he has added ” in the Lord “.’ In regard to slaves he adds: ‘When the Lord of the flesh commands other than the Lord of the Spirit, he is not to be obeyed.’ In another passage the same author says: ‘Men should be subject to masters and parents only in those things that are not contrary to the ordinances of God.’ The same Apostle also had said that each one, whether bond or free,, would receive the recompense of his own work.

Moreover, Tertullian says: ‘We have it sufficiently ordained,,’ that it behooves us to be in all obedience, according to the precept of the Apostle, being subject to magistrates, princes and powers, but within the limits of discipline.’ In the Martyrology Sylvan the Martyr declares: ‘We hold in contempt the laws of Rome, that we may obey the commands of God.’

In Euripides, when Creon asks,

      Does not right itself command his orders to obey?

Antigone replies:

      What right does not command, it is not right to do?

Musonius speaks thus: ‘If any one does not obey a father or a magistrate or a master who orders him to do what is base or wicked to perform, he is not disobedient, he does no wrong, and he commit no sin.’

2.   Gellius declares that it is right to hold that not everything a father orders must be obeyed.’ For what,’ he says,’ if a father shall order his son to betray his country, to kill his mother, or to dc some other base and unholy act? The middle view therefore seem the best and safest, that some commands are to be obeyed, and some other commands not.’ Says Seneca the father Not all command are to be obeyed.’

Quintilian presents the thought thus:

It is not necessary for children to do everything that their parents command. There are many things which may not be done. If you should order your son to give an opinion contrary to what he may think, if you should command him to give testimony concerning a thing of which he is ignorant, or to express an opinion in the senate; if .you bid him to set fire to the Capitol, or seize the citadel, he has a right to say ‘These are things which should not be done.’

Seneca says: ‘We are not able to give all orders, nor are slaves compelled to render obedience to all commands. They will not carry out orders against the state: they will not set their hands to a crime.’ Sopater writes: “‘One must”, he says, “obey one’s father.” If tis commands are lawful, that is right. But if they are inconsistent with honor it is improper.’

In former times men laughed at Stratocles, who had proposed a law at Athens that whatever pleased King Demetrius should be held to be reverent toward the gods and just among men. Pliny somewhere says that he had striven to show that to render a service to a criminal is a crime.

3.   The civil law, which readily grants pardon to excusable crimes, is lenient to those who are under obligation to obey, but not so in respect to all things. It makes an exception in the case of those acts which display heinousness of deed or crime, which, as Cicero says, are ‘of themselves atrocious and abominable’; or, as this is interpreted by Asconius, deeds of evil which ought to be shunned instinctively, not in consequence of the discussions of jurists, but by a natural reaction.

4.   Josephus relates, on the authority of Hecataeus, that the Jews who served under Alexander of Macedon could not be forced by blows or other indignities to heap up earth in company with the rest of the soldiers for the restoration of the temple of Baal, which was ‘at Babylon. But an instance more suited to our argument we have in the Theban legion, of which we have previously spoken. Another is the case of the soldiers under Julian, of whom Ambrose speaks thus:

The Emperor Julian, although an apostate, nevertheless had Christian soldiers under him. When he said to them, ‘Go into battle in defense of the state,’ they were obedient to him; but when he would say to them, ‘Bear arms against Christians,’ then they recognized only the ruler of Heaven.

So also we read that military executioners who had been converted to Christ chose rather to die than to lend their hands to the carrying out of the edicts and decisions against the Christians.

5.   The case will amount to the same thing if any one is convinced that what is ordered is unjust. For the thing is not permissible for him so long as he is unable to get rid of that view. This is clear from the previous discussion.

IV.     What they who are under the rule of another, and are ordered to go to war, should do if they are in doubt.
1.   Now if one who is under the rule of another is in doubt whether a thing is permissible or not, is he to remain inactive, or obey? Very many think that he should obey; and further, that he is not hindered by the famous maxim, ‘What you question, do not do because he who doubts as a matter of reflection does not doubt in a decision involving action, for he can believe that in a matter of doubt he must obey his superior.

It cannot in truth be denied that this distinction of a double judgement applies in many actions. The municipal law, not only of Rome but of other nations as well, under such circumstances not only grants immunity to those who obey, but also refuses to admit a civil action against them. He does the injury, they say, who order; that it be done; there is then no guilt on the part of him who has to obey. The constraint of authority excuses; and like arguments.

2.   Aristotle himself in his Nicomachean Ethics, Book V, counts the slave of a master, who issues the order to do wrong, among those who do something wrong, but not wrongfully. Moreover, Aristotle says that he acts wrongfully with whom the action originates, assuredly because there is not full deliberative power in a slave; this is indicated by the proverb,

      One forced to enter slavery
      One-half his virtue lacks;

and the similar proverb,

      From those for whom a life of servitude
      Is willed by Jupiter he takes away
      One-half their reason;

also that which Philo quotes:

      Your lot is that of a slave, in reason you have no share.

Pertinent is the saying of Tacitus: ‘To the prince the gods have liven the supreme right of decision; for his subjects there remains the glory of obedience.’ The same writer relates that the son of Piso was acquitted by Tiberius of the charge of rebellion, on the ground that ‘the commands were in fact his father’s, and the son could not refuse.’ Says Seneca: ‘The slave is not the censorer, but the servant, of his master’s order.’

3.   With regard to military service in particular Augustine is in agreement with the view stated. He speaks as follows:

Therefore a just man, who happens to serve under an impious king, may justly fight at. the latter’s command, either if he is certain that the command given him, preserving the order of the public peace, is not contrary to the law of God, or if he is uncertain whether it is so; so that an unjust order may perhaps render the king responsible, while the duty of obedience preserves the innocence of the soldier.

Augustine elsewhere says:

When a soldier, in obedience to the authority under which he is lawfully placed, slays a man, no law of his state will hold him guilty of homicide. Rather, he is guilty of neglect, and contempt of command, if he does not do so. But if he had done this of his own accord and authority, he would have incurred the charge of shedding blood. And so where he is punished, if he acts without orders, there he would be punished if he did not act when ordered.

Hence the view is widely accepted that, so far as subjects are concerned, a war may arise that is just, that is to say free from injustice on either side. To such a war applies the verse —

      Which one more justly takes up arms
      ‘Tis wrong to know.

4.   This view, however, is not free from inherent difficulty. Our countryman Adrian, who was the last Pope of Rome from north of the Alps, supports the contrary opinion, and this may be established, not exactly by the reason which he adduces, but by the more pressing one that whoever hesitates, when reflecting, in his decision to act ought to choose the safer course. The safer course, however, is to refrain from war. The Essenes are praised because they swore among other things ‘not to injure any one, even if ordered to’; also their imitators the Pythagoreans, who, on the testimony of Iamblichus; refrained from war, giving as their reason that ‘war organizes and ordains slaughter.’

5.   It is no objection that on the other side there is danger of disobedience. For when either course is uncertain that which is the lesser of two evils is free from sin; for if a war is unjust there is no disobedience in avoiding it. Moreover, disobedience in things of this kind, by its very nature, is a lesser evil than manslaughter, especially than the slaughter of many innocent men. The ancients relate that when Mercury, who had been accused of the slaying of Argos, rested his defense on the command of Jupiter, the gods even then did not, dare to acquit him. Nor did Martial acquit Pothinus, the hanger-on of Ptolemy, when he wrote:

    But yet is the case of Antonius worse than that of Pothinus.

The latter did wrong for his master, the former for himself.

That is not of great weight which some adduce, that if this principle should be admitted the state would in many cases perish, the reason being that oftentimes it is not expedient that the reasons for policies should be made public. Although this maybe true of persuasive causes, it is not true of justifiable causes, which ought to be clear and open and, further, should be such as may and ought to be openly set forth.

6.   What Tertullian has said in perhaps too indefinite a manner with regard to laws refers with perfect justice to those laws or edict which concern the waging of war: ‘A citizen does not faithfully, observe a law if he does not know what sort of thing it is that the law avenges. No law must keep to itself alone the understanding of its uprightness, but must impart such knowledge also to those from whom it expects obedience. A law, however, which does not wish itself to be approved becomes an object of suspicion; such a law, moreover, is wicked if it should enforce itself without having been approved.’ In Statius Achilles says to Ulysses, who is inciting him to war:

      Proclaim what causes the Greeks have for so great a war;
      From these just anger may at once arise.

In the same author Theseus cries:

      Go swiftly and, I pray, have confidence in such a cause.

Propertius had said

      The soldier’s cause increases or weakens his strength;
      If it be not just, shame causes his weapons to fall.

On a level with this is the saying of the Panegyrist: ‘In war a good conscience assumes so much importance that now victory has begun to be not more a matter of valor than of rightness.’ Thus some scholars interpret the Hebrew word ‘jarek,’ which is read in Genesis 4:14, in the sense that before the battle the servants of Abraham were by him made fully aware of the justness of their warfare.

7.   Declarations of war in fact, as we shall shortly be saying, were wont to be made publicly, with a statement of the cause, in order that the whole human race as it were might judge of the justness of it. Of a truth wisdom is the virtue characteristic of the ruler, as it seemed to Aristotle also; but justice is the virtue characteristic of a man, in so far as he is a man.

8.   It seems then that the view which we said was that of Adrian is absolutely to be followed, if a subject not only hesitates, but, led by more convincing arguments, leans rather to the view that the war is unjust; especially if it is a question of attacking others, not of defending one’s own.

9.   Further, it is probable that even the executioner, who is going to put a condemned man to death, should know the merits of the case, either through assisting at the inquiry and the trial or from a confession of the crime, in such a degree that it is sufficiently clear to him that the criminal deserves death. This practice is observed in some places, and such is the intent of the Hebraic law, when it ordains that the witnesses shall take the lead of the people in stoning him who has been condemned.

V.     Sense of duty requires that subjects who doubt in regard to the justness of a war should be spared, but the burden of an extraordinary tax may be imposed upon them.
1.   Now if the minds of subjects cannot be satisfied by an explanation of the cause of a war it will by all means be the duty of a good magistrate to impose upon them extraordinary taxes rather than military service; particularly where there will be no lack of others who will serve. For an upright king may make use not only of his subjects’ good will but also of their evil purposes, just as God uses the means of the Devil and impious persons that are at hand; just as, again, he is free from blame who, under stress of poverty, takes money from a wicked usurer.

2.   Furthermore, even if there can be no doubt respecting the cause of war, still it does not seem at all right that Christians should be compelled to serve against their will; the reason is that to refrain from military service, even when it is permissible to serve, is the mark of a somewhat greater holiness, which was long demanded from ecclesiastics and penitents, and recommended in many ways to all other persons. To Celsus, who rebuked the Christians for shirking military service, Origen replies as follows:

To those who, being strangers to our faith, bid us serve in defense of the state and slay men, we shall thus make answer

‘Those who are the priests of your idols, whom you consider the special priests of the gods, keep their right hands pure on account of the sacrifices, that with hands free from blood and unstained with any slaughter they may offer sacrifices to those who are believed to be gods; and if any war arises priests will not be enrolled in the ranks. If then that is not without reason, with how much more reason, while others bear arms, are these also to be considered as rendering military service after their own fashion, as priests and worshippers of God, who keep their hands pure indeed, but strive before God with prayers for those who serve as soldiers justly, and for him who with justice rules I’

In this passage he calls all Christians priests, following the example of the holy writers (Revelation 1:6; 1 Peter 2:5).

VI.     When it may be just for subjects to bear arms in a war that is unjust.
However, I think that the case may arise in which there may be a just defense of subjects who engage in a war that is not merely doubtful but obviously unjust. For since an enemy, although waging a just war, does not have the true and perfect right of killing innocent subjects, who are not responsible for the war, unless either as a necessary defensive measure or as a result and apart from his purpose (for these are not liable to punishment), it follows that, if it is certain that the enemy comes with such a spirit that he absolutely refuses to spare the lives of hostile subjects when he can, these subjects may defend themselves by the law of nature, of which they are not deprived by the law of nations.

2.   But even then we shall not say that the war is just on both sides; for it is not a question of the war, but of a certain and definite act. This act, moreover, although done by him who in other respects has a right to make war, is unjust, and hence is justly resisted.

End of Book II