On The Duty of Man and Citizen
According to the Natural Law (1673)
Samuel von Pufendorf
On War and Peace
1. It accords most closely with the natural law, if men are at peace with one another, voluntarily performing their obligations; in fact peace itself is a state peculiar to man, as distinguished from the brutes. Yet at times, even for man himself, war is permitted, and sometimes necessary; when, namely, owing to another’s malice, we are unable to preserve our possessions, or gain our rights, without employing force. Even in this case. however, prudence and humanity persuade us not to resort to arms, if more harm than good will result for us and ours from the avenging of our wrongs.
2. The just causes for which war can be undertaken reduce themselves to these: that we may preserve and protect ourselves and our belongings against the unjust invasion of others; or that we may assert our claim to what is owed us by others who refuse to pay; or to obtain reparations for an injury already inflicted, or a guarantee for the future. A war waged for the first cause is called defensive, if for the other causes, offensive.
3. And yet when one thinks he has been injured, there must be no instant recourse to arms, especially when there is still some doubt about the right or the fact. But we must try to see whether the matter can be settled in a friendly way, for example, by arranging a conference of the parties, by appealing to arbitrators, or intrusting the case to the decision of the lot. These methods are especially to be tried by the nation making the demand: since an advantage certainly attends possession with some sort of tide.
4. Moreover, the unjust causes of war are either openly such, or they admit some color [of a pretext], however pale. The former are referred chiefly to two heads, avarice and ambition, the passion, that is, for possession, or for rule. The latter are various, as, for example, fear prompted by the wealth and power of a neighbor, an advantage not based upon right, the desire to gain better lands, the refusal of what we have earned by some good quality as such, the stupidity of the possessor, the desire of extinguishing a right lawfully acquired by the other party, if it seems rather irksome to us, and so forth.
5. Again, the most appropriate mode of action in war is force and terror; but it is nevertheless permitted to use trickery and ruses against an enemy, provided there as no breach of faith. Hence it is permissible to deceive an enemy by a pretended speech, or fictitious reports, but not at all by promises or agreements.
6. As for the force employed in war against the enemy and his property, we should distinguish between what an enemy can suffer without injustice, and what we cannot bring to bear against him, without violating humanity. For he who has declared himself our enemy, inasmuch as this involves the express threat to bring the worst of evils upon us, by that very act, so far as in him lies, gives us a free hand against himself, without restriction. Humanity, however, commands that, so far as the clash of arms permits, we do not inflict more mischief upon the enemy than defense, or the vindication of our right, and security for the future, require.
7. War is classified as formal and informal. For the first it is required that it be waged on both sides by authority of him who has the supreme power, and that a declaration shall have preceded. A war not declared, or waged against private citizens, is informal. To this class belong also civil wars.
8. The right of making war in a state belongs to him who has the supreme authority. Hence, to engage in war without permission given by the ruler, exceeds the authority of a magistrate, even in case he infers that the supreme power, if consulted, would decide to wage war here and now. But all who are placed with military forces in charge of some province or fortified place are understood, from the purpose of their office, to be also instructed to repel by any means an attacking enemy from the places intrusted to them. They may not, however, rashly transfer the war to hostile territory.
9. But whereas one living in natural liberty can be attacked in war only for injuries which he has himself inflicted, in a state the ruler is often attacked by war, or the whole state is attacked, even though he was not responsible for the injury. But if this is to be rightly done, the injury must have been in some way transferred to him. And rulers of states share in the injuries done by their former citizens, or by those who have recently taken refuge among them, if the rulers have suffered the acts, or afford shelter. Suffering an act becomes culpable, only in case one knows the wrong is being done, and has the power to prevent. But the ruler of a state is assumed to know what is openly and frequently done by the citizens. Ability to prevent is always presumed, unless the lack of it is plainly proved. But the right to make war upon a ruler who receives and protects a guilty person fleeing to him, merely to escape punishment, results rather from a particular agreement between neighbors and allies, than from some common obligation, except in case the fugitive while he is among us plans acts of hostility against the state which he has abandoned.
10. There is also an established custom among nations that in payment for a debt incurred by the state, or in which the state has involved itself by maladministration of justice, the property of individual citizens is held, to this extent, that foreigners to whom the debt is owed, can lay hands upon such property, if found among them. However, a restitution to the citizens who have had their property taken away in this manner, should be arranged by those who contracted the debt. Such executions are usually called reprisals, and they are frequently the prelude to wars.
11. War can be waged not only by anyone for himself, but also on behalf of another. But for this to be rightly done, requires a just cause on the part of him for whom the war is waged, and on the part of his helper a satisfactory reason, in view of which, and for the other’s defense, he can carry on hostilities against a third. But among those for whom we not only can, but also must, take up arms, there are in the first place our subjects, not only collectively, but also singly; provided it is clear that the state will not be involved in greater evils in consequence. Next come allies, if this was included in the treaty with them. These, however, yield precedence to our citizens, when they have need of help at the same time. And, furthermore, a just cause of war is presupposed in their case, and a certain prudence in undertaking the war. Then come friends, even though no express promise has been made to them. Finally, when there is no other reason, common descent alone may be a sufficient ground for our going to the defense of one who is unjustly oppressed, and implores our aid, if we can conveniently do so.
12. License in war goes so far that, although in killing, devastating and plundering a man may have overstepped the limits of humanity, still in the general opinion of nations he is not regarded as infamous, and a man whom good men should avoid. Nevertheless the more civilized nations despise certain methods of injuring an enemy; for example, using poison, or bribing the citizens and soldiers of another state to slay their rulers.
13. Movable property is understood to have been captured in war only after it is safe from the enemy’s pursuit; immovable property, when we hold it under such circumstances that we have the power to keep the enemy at a distance. And yet, in order to extinguish completely the former owner’s right to recover such property, it is necessary for him to renounce all claim by a subsequent agreement. For otherwise, what was acquired by force, may be taken away again by force. But just as soldiers fight under authority of the state, so what they take from the enemy, as properly acquired for the state, not for the soldiers. Yet it is everywhere customary to leave movable property, especially of small value, to the soldiers who have taken it; and this is connived at, or it takes the place of a reward, or sometimes of pay; or it is to tempt such as may be willing to sell their blood when there is no compulsion. But when captured property is again wrested from the enemy, the immovable things return to their former owners, and the movable should do likewise. But among most nations these too are given up to the soldiers as booty.
14. Finally, authority also is acquired in war, as well over individuals as over whole peoples that have been conquered. But to make this legitimate, and binding upon the consciences of the subjects, the vanquished must have given their word to the victors, and the latter must have laid aside their hostile attitude and temper towards the former.
15. Warlike acts are suspended by truces, that is, a convention by which, for a time, although the state of war and the quarrel out of which the war arose still remain, they must abstain from warlike acts of offense; and when the truce has expired, unless peace has meanwhile been restored, they return to hostilities without a fresh declaration.
16. Truces can, moreover, be divided into two kinds: one when the armies come to a halt on their expedition, and warlike preparations are continued by both sides, — a truce which is generally made for a short time only; the other, under which warlike preparations are terminated on both sides. These can be entered into for a considerable length of time, and usually are; they also have the appearance of a complete peace, and sometimes are called by that name, with the addition of a definite time. For otherwise, as a rule, every peace is perpetual, that is, it permanently extinguishes the controversies on account of which the war was begun. But the so-called tacit truces involve no obligation; in that case the parties both remain quiet at their discretion, and can proceed again to warlike acts, whenever they please.
17. But war ceases entirely when peace has been ratified by the rulers of both sides. Although it rests with the parties to the negotiations to define the terms and conditions of peace, they must be faithfully executed at the time agreed upon, and must be observed. In confirmation thereof, besides the customary oath, and giving of hostages, others, especially those present at the negotiations, often guarantee the observance of the peace, promising their aid, if one party is injured by the other in defiance of the terms of peace.