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141, part 8, Jus Nat.

      §§ 30, 31.

      Since in the supreme state that is to be considered as the will of all nations, to which they ought to agree, if following the leadership of nature they use right reason, and since the superior in the state is he to whom belongs the right over the actions of the individuals, consequently he who exercises the sovereignty, therefore he can be considered the ruler of the supreme state who, following the leadership of nature, defines by the right use of reason what nations ought to consider as law among themselves, although it does not conform in all respects to the natural law of nations, nor altogether differ from it.

      § 11.

      Fictions are advantageously allowed in every kind of science, for the purpose of eliciting truths as well as for proving them. For example, the astronomers, in order to calculate the movements of the planets, assume that a planet is carried by a regular motion in a circular orbit concentric with the sun and about it, and, in the reckoning of time, the sun is assumed to be carried by a regular motion around

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      the equator. Nay, all moral persons and, too, the supreme state itself in the law of nature and nations have something fictitious in them. Those who disapprove of such things, abundantly show that they are only superficially acquainted with the sciences. That fictitious ruler of the supreme state is believed to adapt the natural or necessary law of nations to the purpose of the supreme state, as far as human conditions allow, using the right of making laws, which we have shown above belongs to the supreme state.

      § 22. Definition of the voluntary law of nations and what it is

      § 21.

      § 965, part 8, Jus Nat.

      With Grotius we speak of the voluntary law of nations, which is derived from the concept of the supreme state. Therefore it is considered to have been laid down so to speak by its fictitious ruler and so to have proceeded from the will of nations. The voluntary law of nations is therefore equivalent to the civil law, consequently it is derived in the same manner from the necessary law of nations, as we have shown that the civil law must be derived from the natural law in the fifth chapter of the eighth part of “The Law of Nature.”

      And so we have a fixed and immovable foundation for the voluntary law of nations, and there are definite principles, by force of which that law can be derived from the concept of the supreme state, so that it is not necessary to rely blindly on the deeds and customs and decisions of the more civilized nations, and from this there must be assumed as it were a certain universal consensus of all, just as Grotius seems to have perceived.

      § 23. The stipulative law of nations

      § 788, part 3, Jus Nat.

      § 382, part 3, Jus Nat.

      § 789, part 3, Jus Nat.

      There is a stipulative law of nations, which arises from stipulations entered into between different nations. Since stipulations are entered into between two or more nations, as is plain from the meaning of “pact,” since moreover no one can bind another to himself beyond his consent, therefore much less contrary to his consent, nor acquire from him a right which he does not wish to transfer to him; stipulations therefore bind only the nations between whom they are made. Therefore the law of nations, which arises from stipulations, or the stipulative, is not universal but particular.

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      § 22.

      The stipulative law of nations has its equivalent in the private law of citizens, which has its origin in their agreements. Therefore just as the private law for citizens, derived from agreements entered into between themselves, is considered as having no value at all as civil law for a certain particular state, so also the law that nations have derived from agreements with other nations, it seems, cannot be considered as the law of nations. Therefore it is plain that the stipulative law of nations is to be accepted only in a certain general sense, in so far as through stipulations nations can bind themselves to one another and acquire certain rights, and there is a certain proper subject-matter of these stipulations, so that therefore the stipulative law of nations has regard only to those things which must be observed concerning the stipulations of nations and their subject matter in general. For the particular stipulations and the rights and obligations arising therefrom as to the states stipulating, since they are simply factitious, do not belong to the science of the law of nations, but to the history of this law or of that nation, which it enjoys in respect of certain other nations. The general theory of the stipulative law of nations could have been referred to the voluntary law of nations; whoever desires so to do, will not have the least objection from us.

      § 24. Of the customary law of nations

      § 23.

      The customary law of nations is so called, because it has been brought in by long usage and observed as law. It is also frequently called simply custom, in the native idiom das Herkommen [usage]. Since certain nations use it one with the other, the customary law of nations rests upon the tacit consent of the nations, or, if you prefer, upon a tacit stipulation, and it is evident that it is not universal, but a particular law, just as was the stipulative law.

      What we have just remarked about the stipulative law must likewise be maintained concerning the customary law.

      § 25. Of the positive law of nations

      § 22.

      § 23.

      § 24.

      § 22.

      § 23.

      § 24.

      That is called the positive law of nations which takes its origin from the will of nations. Therefore since it is plainly evident that the voluntary, the stipulative, and the customary law of nations take their origin from

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      the will of nations, all that law is the positive law of nations. And since furthermore it is plain that the voluntary law of nations rests on the presumed consent of nations, the stipulative upon the express consent, the customary upon the tacit consent, since moreover in no other way is it conceived that a certain law can spring from the will of nations, the positive law of nations is either voluntary or stipulative or customary.

      Those who do not have a clear conception of the supreme state, and therefore do not derive from it the voluntary law of nations, which Grotius has mentioned, and even wholly reject it, or refer some part of it to the customs of certain nations, such recognize no other positive law of nations at all, aside from the stipulative or customary. But certainly it is wrong to refer to customs, what reason itself teaches is to be observed as law among all nations.

      § 26. General observation

      §§ 2 and fol., part 1, Jus Nat.

      We shall carefully distinguish the voluntary, the stipulative, and the customary law of nations from the natural or necessary law of nations, nevertheless we shall not teach the former separately from the latter, but when we have shown what things belong to the necessary law of nations, we shall straightway add, wherever it may be, why, and in what manner that must be changed to the voluntary, and here and there, when we have carefully considered it, we shall add the stipulative and the customary laws, which are by no means to be confused with the voluntary, especially since they have not been distinguished from it with sufficient care by Grotius. And the method which we have thus far used, both in the law of nature and in the other parts of philosophy already taught by us, and which we shall likewise use in the other parts, to be taught by us in their own time and order, this too we use in the law of nations, although the particular laws peculiar to some nations, which either come from stipulations or are due to customs, we do not consider, inasmuch as they are at variance with our plan, with which only those things which belong to science are in harmony. And why one must use such a method is plain from our proofs and our notes in the Prolegomena to “The Law of Nature.”

      THE END OF THE PROLEGOMENA

      [print edition

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