The Law of War and Peace (1625)
by Hugo Grotius
Cautions in Regard to Things Which Are Done in an Unlawful War
I. With what meaning a sense of honor may be said to forbid what the law permits.
1. I must retrace my steps, and must deprive those who wage’ war of nearly all the privileges which I seemed to grant, yet did not grant to them. For when I first set out to explain this part of the law of nations I bore witness that many things are said to be ‘lawful’ or ‘permissible’ for the reason that they are done with impunity, in part also because co-active tribunals lend to them their authority; things which, nevertheless, either deviate from the rule of right (whether this has its basis in law strictly so called, or in the admonitions of other virtues), or at any rate may be omitted on higher grounds and with greater praise among good men.
2. In the Trojan Women of Seneca, when Pyrrhus says:
- No law the captive spares, nor punishment restrains,
Agamemnon makes answer:
- What law permits, this sense of shame forbids to do.
In this passage the sense of shame signifies not so much a regard for men and reputation as a regard for what is just and good, or at any rate for that which is more just and better.
So in the Institutes of Justinian we read: ‘Bequests in trust (fideicommissa) were so called, because they rested not upon a legal’ obligation, but only upon the sense of honor in those who were, asked to take charge of them.’ In Quintilian the Father, again ‘The creditor goes to the surety, without violating his sense of honor,’: only in case he is unable to recover from the debtor.’ With this, meaning you may often see justice associated with the sense of honor. [Thus Ovid]:
- Not yet had justice fled before men’s guilt;
Last of divinities she left the earth,
And sense of honor in the place of fear
Ruled o’er the people without force.
- Nowhere a sense of honor, nowhere golden justice;
The base assail the better wantonly.
The sentence of Plato, in the twelfth book of his Laws, ‘For Justice is called, and truly called, the virgin daughter of Honor ‘ (parqenoV gar Dikh legetai te kai ontwV eirhtai), I would emend by paredroV, so that the sense would be: ‘Justice is called the councillor of honor, and this has been said with truth.’ For in another place Plato also speaks thus: ‘The deity, fearing for the human race, lest it should utterly perish, endowed men with a sense of honor and justice, in order that there might be adornments of cities and bonds of friendship.’
In like manner Plutarch calls ‘justice’ a ‘house-companion of the sense of honor,’ and elsewhere he connects ‘ sense of honor ‘ .and ‘justice.’ In Dionysius of Halicarnassus, ‘ sense of honor and justice’ are mentioned together. Likewise Josephus also links ‘sense of honor and equity.’ Paul the jurist, too, associates the law of nature and the sense of honor. Moreover Cicero draws the boundary line between justice and a sense of reverence (verecundia) in this way, that it is the function of justice not to do violence to men, that of the sense of reverence not to offend them.
3. The verse which we quoted from Seneca is in complete agreement with a statement in his philosophical works: ‘How limited the innocence to be innocent merely according to the letter of the law? How much more widely extend the rules of duty than the rules of law? How many things are demanded by devotion to gods, country and kin, by kindness, generosity, justice, and good faith? Yet all these requirements are outside the statutes of the law.’ Here you see ‘law’ distinguished from ‘justice,’ because he considers as law that which is in force in external judgements.
The same writer elsewhere well illustrates this by taking as an example the right of the master over slaves: ‘ In the case of a slave you must consider, not how much he may be made to suffer with impunity, but how far such treatment is permitted by the nature of justice and goodness, which bids us to spare even captives and those bought for a price.’ Then: ‘Although all things are permissible against a slave, yet there is something which the common law of living things forbids to be permissible against a human being.’ In this passage we must again note the different interpretations of the term ‘to be permissible,’ the one external, the other internal.
II. The principle stated is applied to the things which we said were permitted by the law of nations.
1. Of the same effect is the distinction which was drawn by Marcellus in the Roman Senate: ‘What I have done does not enter into the discussion, for the law of war defends me in whatever I did to the enemy, but what they deserved to suffer ‘; that is, according’ to the standard of that which is just and good.
Aristotle approves the same distinction when he is discussing whether the slavery which originates in war ought to be called just ‘Certain people, regarding only a part of what is just (for a law is something just),’ declare that slavery arising through war is just. But they do not say absolutely just; for it may happen that the cause of war was not just.’ Similar is the saying of Thucydides in the speech of the Thebans: ‘We do not thus complain regarding those whom you slew in battle; for that fate befell them in accordance with a kind of law.’
2. Thus the Roman jurists themselves at times characterize as a wrong what they often define as the right of captivity; and they contrast it with natural right. Seneca, having in mind what often occurs, says that the name of slave has sprung from a wrong. In Livy also the Italians, who retained the things which they had taken in war from the Syracusans, are called stubborn in retaining their wrongful gains. Dio of Prusa, having said that those captured in,’ war recovered their liberty if they returned to their own people, adds, ‘just as those who were wrongfully in servitude.’
Lactantius, in speaking of philosophers, says: ‘When they are discussing the duties that belong to the military life their whole argument is adapted not to justice, nor to true virtue, but to this life and to the practice of states.’ Shortly after, he says that wrongs have been legally inflicted by the Romans.
III. What is done by reason of an unjust war is unjust from the point of view of moral injustice.
In the first place, then, we say that if the cause of a war should be unjust, even if the war should have been undertaken in a lawful way, all acts which arise therefrom are unjust from the point of view of moral injustice (interna iniustitia). In consequence the persons who knowingly perform such acts, or cooperate in them, are to be considered of the number of those who cannot reach the Kingdom of Heaven without repentance. True repentance, again, if time and means are adequate, absolutely requires that he who inflicted the wrong, whether by killing, by destroying property, or by taking booty, should make good the wrong done.’
Thus God says He is not pleased with the fasting of those who held prisoners that had been wrongfully captured; and the king of Nineveh, in proclaiming a public mourning, ordered that men should cleanse their hands of plunder, being led by nature to recognize the fact that, without such restitution, repentance would be false and in vain. We see that this is the opinion not merely of Jews and Christians, but also of Mohammedans.
IV. Who are bound to make restitution, and to what extent.
Furthermore, according to the principles which in general terms we have elsewhere set forth, those persons are bound to make restitution who have brought about the war, either by the exercise of their, power, or through their advice. Their accountability concerns all those things, of course, which ordinarily follow in the train of war; and even unusual things, if they have ordered or advised any such thing, or have failed to prevent it when they might have done so.
Thus also generals are responsible for the things which have been done while they were in command; and all the soldiers that have participated in some common act, as the burning of a city, are, responsible for the total damage. In the case of separate acts each is responsible for the loss of which he was the sole cause, or at any rate was one of the causes.
V. Whether things taken in an unjust war are to be restored by him who took them.
1. I should not think that we ought to admit the exception, which some introduce with regard to those who furnish their services to others, in case some blame should attach to them. Fault without’ evil intent is in fact sufficient to warrant restitution. There are, some who seem to think that things captured in war, even if there was not a just cause for the war, should not be restored. The reason they allege is that those who fight with one another, in entering upon war, are understood to have given these things to the captors. But no one is presumed to risk his property rashly; and war of itself is far removed from the nature of contracts.
However, in order to give to peoples that were at peace a certain rule to follow, that they might avoid being involved in war against their will, it was sufficient to introduce the idea of legal ownership (externum dominium) of which we have spoken, which may exist along with the moral obligation (interna obligatio) of restitution. The writers themselves seem to enunciate this in connection with the law of the captivity of persons. Thus in Livy the Samnites say: ‘We have restored the property of the enemy taken in the spoil, which seemed to be ours by the law of war ‘; ‘seemed,’ he says, because that war had been unjust, as the Samnites had previously acknowledged.
A not unlike case is that arising from a contract entered into without fraud, in which there is an inequality. In such a case by universal common law there arises a power of some sort to compel him who has made the contract to fulfil his agreements; nevertheless, in accordance with the duty of an upright and honorable man, he who has contracted for more than is right is none the less bound to reduce the transaction to an equality.
VI. Whether things taken in an unjust war are to be restored by him who holds them.
1. But he who has not inflicted the loss himself, or has inflicted loss without any fault of his own, and has in his possession a thing taken from another in an unlawful war, is under obligation to return it, because there is no naturally just reason .why the other should go without it – neither his consent, his deserving of evil, nor recompense. In Valerius Maximus there is a story which bears on this point:
After Publius Claudius had sold at auction the people of Camerina, captured under his leadership and auspices (he says), the Roman people, although they saw that the, treasury had been enriched with money and their land increased by an accession of territory, nevertheless with the greatest care sought out and redeemed these people, and assigned to them a site on the Aventine to dwell upon, and restored their estates,’ because it seemed that the good faith of the commander in this exploit was not beyond reproach.
In like manner by a decree of the Romans the Phocaeans received back both their freedom as a state and the lands which had been taken from them. Afterward the Ligurians,) who had been sold by Marcus Pompilius, recovered their liberty through the return of the purchase price to their buyers, and care was taken to restore their possessions. The Senate passed a similar decree with regard to the people of Abdera, adding as a reason that an unlawful war had been waged against them.
2. Still, in accordance with the principles which have been elsewhere explained, it will be possible, if the person who holds the thing has incurred any expense or labor, to deduct as much as the thing was worth to the owner, to recover the possession of which he had despaired. But if the possessor of the thing has, through no fault of his own, consumed or alienated it, he will not be held responsible except in so far as it may be held that he has been thereby enriched.