LITMIR.BIZ

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       PREFACE

      Since nations in their relations with each other use no other law than that which has been established by nature, a separate treatment of the law of nations and the law of nature might seem superfluous. But those, indeed, who feel thus do not weigh the laws of nations in scales that are perfectly balanced. Nations certainly can be regarded as nothing else than individual free persons living in a state of nature, and therefore the same duties are to be imposed upon them, both as regards themselves and as regards others, and the rights arising therefrom, which are prescribed by the law of nature and are bestowed on individual humans, to the extent that they are by nature born free, and are united by no other bond than that of nature. And so whatever right arises and whatever obligations result therefrom, come from that unchangeable law which has its source in human nature, and thus the law of nations is undoubtedly a part of the law of nature, and therefore it is called the natural law of nations, if you should look at its source, but the necessary, if you should look at its power to bind. And this is a law common to all nations, so that any nation which does anything contrary to it, violates the common law of all nations, and does a wrong. But since, indeed, nations are moral persons and therefore are subject only to certain rights and duties, which by virtue of the law of nature arise from the society entered into, their nature and essence undoubtedly differ very much from the nature and essence of individual humans as physical persons. When therefore the duties, which the law of nature prescribes to individuals, and when the rights, which are given to individuals to demand the performance of these duties, are applied to nations, since they can be such only as are allowed by their subjects, they must be suitably changed by them, that they may take on a certain new form. And thus the law of nations does not remain the same in all respects as the law of nature, in so far as it governs the acts

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      of individuals. What therefore stands in the way of treating it separately as a law peculiar to nations? Indeed, he who speaks of the law of nature and nations, shows by that very fact, unless he should wish to utter sound without sense, that there is some difference between the law of nature and the law of nations. But if, indeed, any one shall be too obstinate to admit that the law of nations is different from the law of nature, he may call our present volume, which we have written on the former subject, the ninth part of “The Law of Nature.” For we consider it unseemly to quarrel over such a trifle. But as indeed the condition of men is such that in a state one cannot completely satisfy in all details the rigour of the law of nature, and for that reason there is need of positive laws, which do not differ altogether from the law of nature, nor observe it in all details; so likewise the condition of nations is such that one cannot completely satisfy in all details the natural rigour of the law of nations, and therefore that law, immutable in itself, should be adapted only so much that it neither departs entirely from natural law, nor observes it in all details. But since the common welfare itself of nations demands this very adaptation; therefore nations are none the less bound to admit as between themselves the law arising therefrom, than they are bound by nature to an observance of natural law; and the former no less than the latter, if consistency in the law is preserved, is to be considered a law common to all nations. But this law itself we, in company with Grotius, have been pleased to call the voluntary law of nations, although with not exactly the same signification, but with a slightly narrower meaning. But far be it from you to imagine that this voluntary law of nations is developed from the will of nations in such a way that their will is free in establishing it and that free will alone takes the place of reason, without any regard to natural law. For as we have proved in the eighth part of “The Law of Nature,” civil laws are not matters of mere will, but the law of nature itself prescribes the method by which the civil law is to be fashioned out of natural law, so that there can be nothing which can be criticized in it; so also the voluntary law of nations does not depend upon the free will of nations, but natural law itself defines the means by which voluntary law may replace natural law, which is only admissible when necessity demands it. Since nature herself has united nations into one supreme state in the same manner as individuals have united into

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      particular states, the manner also in which the voluntary law of nations ought to be fashioned out of natural law, is exactly the same as that by which civil laws in a state ought to be fashioned out of natural laws. For that reason the law of nations, which we call voluntary, is not, as Grotius thought, to be determined from the acts of nations, as though from their acts their general consent is to be assumed, but from the purpose of that supreme state which nature herself established, just as she established society among all men, so that nations are bound to agree to that law, and it is not left to their whim as to whether they should prefer to agree or not. Those are not lacking who, when they condemn the voluntary law of nations, speak of it as natural law, so that they seem to disagree only in words, but agree in fact; nevertheless if you wish to examine the matter more carefully, you could not deny that the obligation which comes from natural law is not in the least diminished by the voluntary law, although this gives immunity of action among men and permits those things to be tolerated which could not be avoided without greater evil, consequently it is undoubtedly necessary that natural law must be distinguished from voluntary law, by whatever names indeed you may have preferred to call these different laws. We prefer the custom of not changing terms once introduced into science except for urgent necessity, but the concepts corresponding to them, as there may have been need, are to be so limited and corrected, that they may correspond to the truth. For it seems too childish, with the arrogance of a weak mind, to change terms or their signification, and on this account to claim the reputation of a discoverer with those among whom even the one-eyed is king. That most perfect law of nature constantly retains its force, so that we should do right, and should not wish to do the things which can be done with impunity, unless they are also right, and thus there may arise a consciousness of duty done as a reward, inasmuch as that is a great part of happiness, and as good deeds produce a true and great reputation, delight in which is also to be attributed to this genuine happiness. But just as individuals can acquire rights by stipulations and contract obligations through them; so also nations can acquire rights from nations, by stipulations and contract obligations through them. This is appropriately called the stipulative law of nations, and it gets its validity from natural law, which commands that agreements should be observed. Moreover,

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      natural law enjoins that agreements should be made with a sense of obligation, although the voluntary law does not base their validity upon the same considerations, and there may be a violation of natural law without a penalty and that is to be endured. It is self-evident that stipulative law is only a particular law of nations, which is not valid except between those nations which have contracted. It has been decided before that there can be a tacit no less than an express agreement, and by nature there are certain tacit provisions in every express agreement, since the law of nature makes no distinction between contracts bona fide and stricti juris.¹ On these tacit agreements are based those provisions which have been introduced by custom among nations, and which, as we have said, constitute the customary law of nations. This is similar to the stipulative law, therefore it holds good only between nations which have made

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