CHAP. VI.
Of the law of nations.
I. AMONG the various establishments of man, the most considerable without doubt is that of civil society, or the body politic, which is justly esteemed the most perfect of societies, and has obtained the name of State by way of preference.
Human society is simply of itself, and with regard to those, who compose it, a State of equality and independence. It is subject to God alone; no One has a natural and primitive right to command? but each person may dispose of himself, and of what he possesses, as he thinks proper, with this only restriction, that he keep within the bounds of the law of nature, and do no prejudice or injury to any man.
The civil state makes a great alteration in this primitive one. The establishing a sovereignty subverts this independence, wherein men were originally with regard to one another; and subordination is substituted in its stead. The sovereign becoming the depository as it were of the will and strength of each individual, which are united in his person, all the other members of the society become subjects, and find themselves under an obligation of obeying and conducting themselves pursuant to the laws, imposed upon them by the sovereign.
[The civil state does not destroy, but improve the state of nature.]
II. But how great soever the change may be, which government and sovereignty make in the state of nature, yet we must not imagine, that the civil state properly subverts all natural society, or that it destroys the essential relations, which men have among themselves, or those between God and man. This would be neither physically nor morally possible; on the contrary, the civil sate supposes the nature of man such, as the Creator has formed it; it supposes the primitive state of union and society, with all the relations this state includes; it supposes in fine the natural dependence of man with regard to God and his laws. Government is so far from subverting this first order, that it has been rather established with a view to give it a new degree of force and consistency. It was intended to enable us the better to discharge the duties, prescribed by natural laws, and to attain more certainly the end, for which we were created.
[True ideas of civil society.]
III. In order to form a just idea of civil society, we must say, that it is no more than natural society itself modified in such a manner, as to have a sovereign, that commands, and on whose will whatever concerns the happiness of society ultimately depends; to the end that, under his protection and through his care, mankind may surely attain the felicity, to which they naturally aspire.
[States are considered under the notion of moral persons.]
IV. All societies are formed by the concurrence or union of the wills of several persons, with a view of acquiring some advantage. Hence it is that societies are considered as bodies, and receive the appellation of moral persons; by reason that those bodies are in effect animated with one sole will, which regulates all their movements. This agrees particularly with the body politic or state. The sovereign is the chief or head, and the subjects the members; all their actions, that have any relation to society, are directed by the will of the chief. Hence, so soon as states are formed, they acquire a kind of personal properties; and we may consequently, with due proportion, attribute to them whatever agrees in particular with man; such as certain actions and rights, that properly belong to them, certain duties, they are obliged to fulfil, &c.
[What is the law of nations.]
V. This being supposed, the establishment of states introduces a kind of society amongst them, similar to that, which is naturally between men; and the same reasons, which induce men to maintain union among themselves, ought likewise to engage nations or their sovereigns to keep up a good understanding with one another.
It is necessary therefore there should be some law among nations, to serve as a rule for mutual commerce. Now this law can be nothing else but the law of nature itself, which is then distinguished by the name of the law of nations. Natural law, says Hobbes very justly,[1] is divided into the natural law of man, and the natural law of states; and the latter is what we call law of nations. Thus natural law and the law of nations are in reality one and the same thing, and differ only by an external denomination. We must therefore say, that the law of nations, properly so called, and considered as a law proceeding from a superior, is nothing else but the law of nature itself, not applied to men, considered simply as such, but to nations, states, or their chiefs, in the relations they have together, and the several interests they have to manage between each other.
[Certainty of this law.]
VI. There is no room to question the reality and certainty of such a law of nations obligatory of its own nature, and to which nations, or the sovereigns, that rule them, ought to submit. For if God, by means of right reason, imposes certain duties between individuals, it is evident he is likewise willing that nations, which are only human societies, should observe the same duties between themselves.[2]
[General principle of the law of nations; what polity consists in.]
VII. But in order to say something more particular concerning this subject, let us observe, that the natural state of nations, in respect to each other, is that of society and peace. This society is likewise a state of equality and independence, which establishes a parity of right between them; and engages them to have the same regard and respect for one another. Hence the general principle of the law of nations is nothing more, than the general law of sociability, which obliges all nations, that have any intercourse with one another, to practise those duties, to which individuals are naturally subject.
These remarks may serve to give us a just idea of that art, so necessary to the directors of states, and distinguished commonly by the name of Polity. Polity, considered with regard to foreign states, is that ability and address, by which a sovereign provides for the preservation, safety, prosperity, and glory of the nation he governs, by respecting the laws of justice and humanity; that is, without doing any injury to other states, but rather by procuring their advantage, so much as in reason can be expected. Thus the polity of sovereigns is the same, as prudence among private people; and, as we condemn in the latter any art or cunning, that makes them pursue their own advantage to the prejudice of others, so the like art would be censurable in princes, were they bent upon procuring the advantage of their own people by injuring other nations. The Reason of state, so often alledged to justify the proceedings or enterprises of princes, cannot really be admitted for this end, but inasmuch as it is reconcileabie with the common interest of nations, or, which amounts to the same thing, with the unalterable rules of sincerity, justice, and humanity.
[Inquiry into Grotius's opinion concerning the law of nations.]
VIII. Grotius indeed acknowledges, that the law of nature is common to all nations; yet he establishes a positive law of nations contradistinct from the law of nature; and reduces this law of nations to a sort of human law, which has acquired a power of obliging in consequence of the will and consent of all or of a great many nations.[3] He adds, that the maxims of this law of nations are proved by the perpetual practice of people, and the testimony of historians.
But it has been justly observed that this pretended law of nations, contradistinct from the law of nature, and invested nevertheless with a force of obliging, whether the people consent to it or not, is a supposition destitute of all foundation.[4]
For 1. All nations are with regard to one another in a natural independence and equality. If there be therefore any common law between them, it must proceed from God their common sovereign.
2. As for what relates to customs, established by an express or tacit consent among nations, these customs, are neither of themselves, nor universally, nor always obligatory. For, from this only, that several nations have acted towards one another for a long time after a particular manner in particular cases, it does not follow, that they have laid themselves under a necessity of acting always in the same manner for the time to come, and much less, that other nations are obliged to conform to those customs.
3. Again, those customs are so much less capable of being an obligatory rule of themselves, as they may happen to be bad or unjust. The profession of a corsair or pirate was, by a kind of consent, esteemed a long while lawful between nations, that were not united by alliance or treaty. It seems likewise, that some nations allowed themselves the use of poisoned arms in time of war.[5] Shall we say, that these were customs authorised by the law of nations, and really obligatory in respect to different people? Or shall we not rather consider them as barbarous practices; from which every just and well-governed nation ought to refrain? We cannot therefore avoid appealing always to the law of nature, the only one, that is really universal, whenever we want to judge whether the customs established between nations, have any obligatory effect.
4. All that can be said on this subject is, that when customs of an innocent nature are introduced among nations, each of them is reasonably supposed to submit to those customs, so long as they have not made any declaration to the contrary. This is all the force or effect, that can be given to received customs; but a very different effect from that of a law properly so called.
[Two sorts of laws of nations; one of necessity and obligatory by itself, the other arbitrary and conventional.]
IX. These remarks give us room to conclude, that the whole might perhaps be reconciled, by distinguishing two species of laws of nations. There is certainly an universal, necessary, and self-obligatory law of nations, which differs in nothing from the law of nature, and is consequently immutable, insomuch that the people or sovereigns cannot dispense with it, even by common consent, without transgressing their duty. There is besides another law of nations, which we may call arbitrary and free, as founded only on an express or tacit convention; the effect of which is not of itself universal; being obligatory only in regard to those, who have voluntarily submitted thereto, and only so long, as they please, because they are always at liberty to change or repeal it. To this we must likewise add, that the whole force of this sort of law of nations ultimately depends on the law of nature, which commands us to be true to our engagements. Whatever really belongs to the law of nations may be reduced to one or other of these two species; and the use of this distinction will easily appear by applying it to particular questions, which relate either to war, for example, to ambassadors, or to public treaties, and to the deciding of disputes, which sometimes arise concerning these matters between sovereigns.[6]
[Use of the foregoing remarks.]
X. It is a point of importance to attend to the origin and nature of the law of nations, such as we have now explained them. For, besides that it is always advantageous to form just ideas of things, this is still more necessary in matters of practice and morality. It is owing perhaps to our distinguishing the law of nations from natural law, that we have insensibly accustomed ourselves to form quite a different judgment between the actions of sovereigns and those of private people. Nothing is more usual than to see men condemned in common for things, which we praise, or at least excuse in the persons of princes. And yet it is certain, as we have already shown, that the maxims of the law of nations have an equal authority with those of the law of nature, and are equally respectable and sacred, because they have God alike for their author. In short, there is only one sola and the same rule of justice for all mankind. Princes, who infringe the law of nations, commit as great a crime as private people, who violate the law of nature; and, if there be any difference in the two cases, it must be charged to the prince's account,[7] whose unjust actions are always attended with more dreadful consequences, than those of private people.[8]
1. De Cive, cap. 14. § 4.
2. See chap. v. sect. 8.
3. See Grotius, Rights of War and Peace; preliminary discourse, § 18, and book i. chap. i. § 14.
4. See Puffendorf law of Nature and Nations, book ii. chap. iii. § 23, with Barbeyrac's notes.
5. See Virgil, AEneid, book x. ver. 139, with the 15th note of the Abbès des Fontaines.
6. Let us remark here by the way, that the ideas of the ancient Roman lawyers, concerning the law of nations, are not always uniform; which creates some confusion. Some there are, who understand by the LAW OF NATIONS those rules of right, that are common to all men, and established amongst themselves pursuant to the light of reason; in opposition to the particular laws of each people. (See the 9th law in the Digest, de Justitia & Jure, book i. tit. I) And then the law of nations signified also the law of nature. Others distinguished between these two species, as Ulpian has done in law I. of the title now mentioned. They gave the name of law of nations to that, which agrees with man as such; in opposition to that which suits him as an animal. (See Puffendorf, Law of Nature and Nations, book ii. chap. 3. § 3. note 10.) Some, in fine, comprised the one and the other under the idea of natural law. (See law XI. Digest de Justitia & Jure.) And hence it comes, that the better sort of Latin writers give indifferently the name of natural law, or the law of nations, to that which relates to either. This we find in the following passage of Cicero, where he says, that by the law of nature, that is, by the law of nations one man is not allowed to pursue his advantage at the expense of another. Neque vero hoc solum NATURA, id est, JURE GENTIUM ——— constitutum est, ut non liceat sui commodi causa, alten nocere. De Offic. lib. 3. cap. 5. See Mr. Noodt's commentary on the Digest book i. tit. 1. where this able lawyer explains very well the ambiguity of the distinction of natural law, and the law of nations, according to the different language of ancient civilians.
7. See part i. chap. xi. § 12.
8. It is Monsieur Bernard, that furnishes us with these reflections. If a private person, says he, offends without cause a person of the same station, his action is termed an injustice; but if a prince attacks another prince without cause, if he invades his territories, and ravages has towns and provinces, this is called waging war, and it would be temerity to think it unjust. To break or violate contracts or agreements is esteemed a crime among private people; but, among princes, to infringe the most solemn treaties is prudence, is understanding the art of government. True it is, that some pretext is always sought for, but those, who trump up these pretexts, give themselves very little trouble whether they are thought just or not, &c. Nouvelles, de la republique des lettres Mars 1704 page 340, 341.