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Week 9
Hugo Grotius, On the Laws of War and Peace, Book 3, Chapter 11
Grotius, Hugo. “On the Laws of War and Peace.” The Human Rights Reader, 2nd E d i t i o n . N e w
York, NY: Routledge, 2007. 127-132. (ON BLACKBOARD)
Prolegomena
1. THE municipal law of Rome and of other states has been treated by many, who have undertaken
to elucidate it by means of commentaries or to reduce it to a convenient digest. That body of
law, however, which is concerned with the mutual relations among States or rulers of states,
whether derived from nature, or established by divine ordinances, or having its origin in custom and
tacit agreement, few have touched upon. Up to the present time no one has treated it in a
comprehensive and systematic manner; yet the welfare of mankind demands that this task be
accomplished ….
15. Since it is a rule of law of nature to abide by pacts (for it was necessary that among men there
be some method of obligating themselves one to another, and no other natural method can be
imagined), out of this source the bodies of municipal law have arisen. For those who had associated
themselves with some group or had subjected them selves to a man or to men, had, either expressly
promised, or from the nature of the transaction must be understood impliedly to have promised, that
they would conform to that which should have been determined, in the one case by the majority, in
the other by those upon whom authority had been conferred.
16. What is said, therefore, in accordance with the view not only of Carneades but also of others,
that
Expediency is, as it were, the mother
Of what is just and fair,
Is not true, if we wish to speak accurately. For the very nature of man, which even if we had no lack
of any thing would lead us into the mutual relations of society, is the mother of the law of nature.
But the mother of municipal law is that obligation which arises from mutual consent; and since this
obligation derives its force from the law of nature, nature may be considered, so to say, the greatgrandmother of municipal law.
The law of nature nevertheless has the reinforcement of expediency; for the Author of nature
willed that as individuals we should be weak, and should lack many things needed in order to live
properly, to the end that we might be the more constrained to cultivate the social life. But
expediency afforded an opportunity also for municipal law, since that kind of association of which
we have spoken, and subjection, to authority, have their roots in expediency. From this it follows
that those who prescribe laws for others in so doing are accustomed to have, or ought to have, some
advantage in view.
17. But just as the laws of each state have in view the advantage of that state, so by mutual consent
it has become possible that certain laws should originate as between all states, or a great many
States; and it is apparent that the laws thus originating had in view the advantage, not of particular
states, but of the great society of states. And this is what is called the law of nations, whenever we
distinguish that term from the law of nature.
This division of law Carneades passed over altogether. For he divided all law into the law of
nature and the law of particular countries. Nevertheless if undertaking to treat of the body of law
which is maintained between states – for he added a statement in regard to war and things acquired
by means of war- he would surely have been obliged to make mention of this law.
18. Wrongly, moreover, does Carneades ridicule justice as folly. For since, by his own admission,
the national who in his own country obeys its laws is not foolish, even though, out of regard for that
law, he may be obliged to forgo certain things advantageous for himself, so that nation is not foolish
which does not press its own advantage to the point of disregarding the laws common to nations.
The reason in either case is the same. For just as the national, who violates the law of his country in
order to obtain an immediate advantage, breaks down that by which the advantages of himself and
his posterity are for all future time assured, so the state which transgresses the laws of nature and of
nations cuts away also the bulwarks which safeguard its own future peace. Even if no advantage
were to be contemplated from the keeping of the law, it would be a mark of wisdom, not of folly, to
allow ourselves to be drawn towards that to which we feel that our nature leads ….
25. Least of al should that be admitted which some people imagine, that in war all laws are in
abeyance. On the contrary war ought not to be under taken except for the enforcement of rights;
when once undertaken, it should be carried on only within the bounds of law and good faith ….
But in order that wars may be justified, they must be carried on with not less scrupulousness than
judicial processes are wont to be.
26. Let the laws be silent, then, in the midst of arms, but only the laws of the State, those that the
courts are concerned with, that are adapted only to a state of peace; not those other laws, which are
of perpetual validity and suited to all times. It was exceedingly well said by Dio of Prusa, that
between enemies written laws, that is laws of particular states, are not in force, but that unwritten
laws are in force, that is, those which nature prescribes, or the agreement of nations as
established ….
28. Fully convinced, by the considerations which I have advanced, that there is a common law
among nations, which is valid alike for war and in war, I have had many and weighty reasons for
undertaking to write upon this subject. Throughout the Christian world I observed a lack of restraint
in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to
arms for slight causes, or no
cause at all, and that when arms have, once been taken up there is no longer any respect for law,
divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose
for the committing of all crimes….
Book II-Chapter 1: The Causes of War: Defense of Self and Property
II. Justifiable causes include defense, the obtaining of that which belongs to us or is our due, and the
inflicting of punishment
2. Authorities generally assign to wars three justifiable causes, defense, recovery of property, and
punishment. All three you may find in Camillus’s declaration with reference to the Gauls: “All
things which it is right to defend, to recover, and to avenge.” In this enumeration the obtaining of
what is owed to us was omitted, unless the word “recover” is used rather freely….
III. War for the defense of life is permissible
We said above that if a attack by violence is made on one’s person, endangering life, and
no other way of escape is open, under such circumstances war is permissible, even though it involve
the slaying of the assailant. As a consequence of the general acceptance of this principle we
showed that in some cases a private war may be lawful.
This right of self-defense, it should be observed, has its origin directly, and chiefly, in the
fact that nature commits to each his own protection, not in the injustice or crime of the aggressor.
Wherefore, even if the assailant be blameless, as for instance a soldier acting in good faith, or one
who mis takes me for some one else, or one who is rendered irresponsible by madness or by
sleeplessness – this, we read, has actually happened to some -the right of self-defense is not thereby
taken away; it is enough that I am not under obligation to suffer what such an assailant attempts,
any more than I should be if attacked by an animal belonging to another.
IV. War in defense of life is permissible only against an actual assailant
1. It is a disputed question whether innocent persons can be cut down or trampled upon
when by getting in the way they hinder the defense or flight by which alone death can be averted.
That this is permissible, is maintained even by some theologians. And certainly, if we look to nature
alone, in nature there is much less regard for society than concern for the preservation of the
individual.. ..
V. War in defense of life is permissible only when the danger is immediate and certain, not when it
is merely assumed
1. The danger, again, must be immediate and imminent in point of time. I admit, to be sure,
that if the assailant seizes weapons in such a way that his intent to kill is manifest the crime can be
forestalled; for in morals as in mate rial things a point is not to be found which does not have a
certain breadth. But those who accept fear of any sort as justifying anticipatory slaying are
themselves greatly deceived, and deceive others ….
Vlll. Not to take advantage of the right of defense is permissible
We said above, that while it is permissible to kill him who is making ready to kill, vet the
man is more worthy of praise ‘who prefers to be killed rather than to kill.
This principle, however is by some conceded in such a way that an exception is made in the
case of a person whose life is useful to many. But I should deem it unsafe to extend this rule, which
is inconsistent with long suffering, so as to include all those whose lives are necessary for others.
And so I should think that the exception ought to be restricted to those whose duty it is to ward off
violence from others, such as members of an escort on a journey, who were hired with that purpose
in view, and public rulers, to whom the verses of Lucan may be applied [translation by Ridleyj:
When on thy breath so many nations
hang
For life and safety, and so great a world
Calls thee its master, to have courted
death
Proves want of heart.
XI. By the law of nature it is permissible to kill in defense of property
We may now come to injuries that are attempted upon property.
If we have in view expletive justice only, I shall not deny that in order to preserve property a
robber can even be killed, in case of necessity. For the disparity between property and life is offset
by the favorable position of the innocent party and the odious role of the robber, as we have said
above. From this it follows, that if we have in view this right only, a thief fleeing with stolen
property can be felled with a missile, if the property cannot other wise be recovered. In his speech
against Aristocrates, Demosthenes exclaims: “In the name of the gods is not this a hard and unjust
thing, contrary not only to written laws but also to the law common to all men, that I am not
permitted to use force against the man who, in the manner of an enemy, seizes and carries off my
property?”
If, furthermore, we leave divine and human law out of account, regard for others, viewed as
a principle of con duct, interposes no hindrance to such action, unless the stolen property is of
extremely slight value and consequently worthy of no consideration. This exception is by some
rightly added.
Chapter XXII: On Unjust Causes [of Wars]
I. The distinction between justifiable and persuasive causes is explained
1. We said above, when we set out to treat the causes of wars, that some were justifiable,
others persuasive. Polybius, who was the first to observe this distinction, calls the former “pretexts,”
because they are wont to be openly alleged (Livy sometimes employs the term “claim”), and the
latter by the name of the class, “causes.’)
2. Thus in the war of Alexander against Darius the “pretext” was the avenging of the
injuries which the Persians had inflicted upon the Greeks, while the “cause” was the desire for
renown, empire, and riches, to which was added a great expectation of an easy victory arising from
the expeditions of Xenophon and Agesilaus. The “pretext” of the Second Punic War was the dispute
over Saguntum, but the cause was the anger of the Carthaginians at the agree ments which the
Romans had extorted from them in times of adversity, and the encouragement which they derived
from their successes in Spain, as was observed by Polybius ….
II. Wars which lack causes of either sort are wars of savages
There are some who rush into war without a cause of either sort, led, as Tacitus says, by the
desire of incurring danger for its own sake. But the offense of these men is more than human;
Aristotle calls it “the savagery of wild beasts.” Concerning such persons Seneca wrote: “1 can say
that this is not cruelty, but ferocity which delights in savagery. We can call it madness; for there are
various sorts of madness, and none is more unmistakable than that which turns to the slaughter and
butchery of men.”
Altogether similar to this expression of opinion is that of Aristotle, in the last book of the
Nicomachean Ethics: “For anyone would seem to be absolutely murderous if he should make
enemies of his friends in order that there might be fighting and bloodshed.” Said Dio of Prusa: “To
wage war and to fight without a pretext, what else i.s this than utter madness and a craving for evils
arising therefrom?” …
Ill. Wars which have persuasive but not justifying causes are wars of robbers
1. In most cases those who go to war have persuasive causes, either with or without
justifiable causes. There are some indeed who clearly ignore justifiable causes. To these we may
apply the dictum uttered by the Roman jurists, that the man is a robber who, when asked the origin
of his possession, adduces none other than the fact of possession.
With regard to those who advocate war Aristotle says: “Do they often times give no thought
to the injustice of enslaving neighbors and those who have done no wrong?” …
XII. An unjust cause of war also is the desire to rule others against their will on the pretext that it is
for their good
Not less iniquitous is it to desire by arms to subdue other men, as if they deserved to be
enslaved, and were such as the philosophers at times call slaves by nature. For even if something is
advantageous for any one, the right is not forthwith conferred upon me to impose this upon him by
force. For those who have the use of their reason ought to have the free choice of what is
advantageous or not advantageous, unless another has acquired a certain right over them.
With infants the case is clearly different; for since they do not have the right of exercising
“independence of action” and of directing their own movements, nature confers the control over
them upon persons who under take it and are fitted therefore.
XIII. An unjust cause of war is the title to universal empire which some give to the Emperor, and
which is shown to he inapplicable
l. I should hardly trouble to add that the title which certain persons give to the Roman
Emperor is absurd, as if he had the right of ruling over even the most distant and hitherto unknown
peoples, were it not that Bartolus, long considered first among jurists, had dared to pronounce him
a heretic who denies to the Emperor this title. His ground, forsooth, is that the Emperor at times
calls himself lord of the world and that in the sacred writings that empire, which later writers call
Romania, is designated as “the inhabited world.” Of like character is this expression:
Now the whole earth the victorious Roman held, as are many similar expressions used in a
broad sense, or in hyperbole, or in high praise; as when, in the same Holy Writ, Judaea alone often
appears under the designation of “the inhabited world.” …
Book Ill-Chapter IV
XIX. Whether rape is contrary to the law of nations
1. You may read in many places that the raping of women in time of war is permissible, and
in many others that it is not permissible. Those who sanction rape have taken into account only the
injury done to the person of another, and have judged that it is not inconsistent with the law of war
that everything which belongs to the enemy should be at the disposition of the victor. A better
conclusion has been reached by others, who have taken into consideration not only the injury but
the unrestrained lust of the act; also, the fact that such acts do not contribute to safety or to
punishment, and should consequently not go unpunished in war any more than in peace.
The latter view is the law not of all nations, but of the better ones. Thus Marcellus, before
capturing Syracuse, is said to have taken pains for the protection, of chastity, even in the case of the
enemy….
Chapter XI: Moderation with Respect to the Right of Killing in a Lawful War
I. In a lawful war certain acts are devoid of moral justice; a condition which is explained
1. Not even in a lawful war ought we to admit that which is said in the line,
He, who refuses what is just, yields all.
Cicero’s point of view is better: “There are certain duties which must” be performed even
toward those from whom you have received an injury. There is in fact a limit to vengeance and to
punishment.” The same writer praises the ancient days of Rome, when the issues of wars were
either mild or in accordance with necessity.
Seneca calls those persons cruel who “have a reason for punishing, but observe no limit.”
Aristides, in his second speech On Leuctra, says: “Men may, men may indeed be unjust in
avenging themselves, if they carry vengeance beyond measure. He, who in punishing goes so far as
to do what is unjust, becomes a second wrong doer.” …
IV. In this matter it is an obligation of humaneness not to make the fullest use of one’s right
1. But we must keep in mind that which, we have recalled elsewhere also, that the rules of
love are broader than the rules of law. He who is rich will be guilty of heartlessness if, in order that
he himself may exact the last penny, he deprives a needy debtor of all his small possessions; and
even much more guilty if the debtor has incurred the debt by his goodness -for instance, if he has
gone surety for a friend – and has used none of the money for his own advantage, “for,” as
Quintilian the Father says, “the peril of a bonds man is worthy of commiseration.” Nevertheless so
hard a creditor does nothing contrary to his right according to a strict interpretation.
2. Therefore humanity requires that we leave to them that do not share in the guilt of the
war, and that have incurred no obligation in any other way than as sureties, those things which we
can dispense with more easily than they, particularly if it is quite clear that they will not recover
from their own state what they have lost in this way ….
Chapter XIV: Moderation in Regard to Prisoners of War
I. To what extent, in accordance with moral justice, it is permissible to take men captive
1. In those places where custom sanctions the captivity and slavery of men, this ought to be
limited primarily, if we have regard to moral justice, in the same way as in the case of property;
with the result that, in fact, such acquisition may be permitted so far as the amount of either an
original or derivative debt allows, unless perhaps on the part of the men themselves there is some
special crime which equity would suffer to be punished with loss of liberty. To this degree, then, and
no further, he who wages a lawful war has a right over the captured subjects of the enemy, and
this right he may legitimately transfer to others.
2. Furthermore in this case also it will be the task of equity and goodness to employ those
distinctions which were noted above, when we discussed the question of killing enemies.
Demosthenes, in his letter “For the Children of Lycurgus,” praises Philip of Macedon for not having
enslaved all who were among his enemies. “For,” said Demosthenes, “he did not consider the same
punishment for all either fair or right, but, examining the case in the light of what each had
deserved, he acted in such matters as a judge.”
Immanuel Kant, Idea for a Universal History with a Cosmopolitan Purpose, Proposition 5-8
Kant, Immanuel. “Propositions 5-8.” Idea for a Universal History with a Cosmopolitan
Purpose.
Fifth Proposition
The greate …
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