On the Law of War and Peace

Contents

1. Prolegomena 57 min 42

   Grotius justifies a systematic law between states against Carneades and the realists, who hold that law is expediency and falls silent in war. Human beings, he argues, have a natural desire for peaceful society, and from it flows law in the strict sense: respect for what belongs to others, keeping promises, reparation and punishment. That law would hold “even if there were no God.” Civil law rests on consent, and the law of nations on the consent of many states. Appalled by Christian Europe’s lawless wars, he lays out his plan and method, weighs his sources, and claims to have abstracted from every particular controversy.

2. I.1 On War and Right 36 min 11

   Grotius defines war as the condition of parties contending by force, and he distinguishes the senses of “right.” Right is what is not unjust, a moral quality of a person (a faculty such as liberty or property, or a mere aptitude), and a rule of action, or law. Law is either natural, the dictate of right reason that not even God can change, or voluntary, human or divine. The law of nature is proved from reason and from the agreement of the more civilized nations. The law of nations rests on the consent of many peoples. The Mosaic law bound only Israel, though it shows what natural law permits.

3. I.2 Inquiry into the Lawfulness of War 1 h 6 min 10

   Is war ever lawful? Grotius argues that the first principles of nature (self-preservation and the means of life) permit force against those who violate our rights, since the end of society is to keep for each his own. He supports this from the patriarchs, from the consent of nations and from Roman law, distinguishing formal wars from informal ones. He then meets the Christian objections. The law given to Noah, Paul on the sword of rulers, John the Baptist’s soldiers, Cornelius and the necessity of taxes for armies all show that the Gospel does not forbid just war or capital punishment. Early Christian scruples reflected idolatry or counsels of perfection.

4. I.3 The Division of War into Public and Private, and the Nature of Sovereign Power 46 min 14

   Grotius divides war into private, public and mixed. Private force survives where no judge is available, and public war is formal only when sovereigns wage it with due formalities. He defines sovereignty as power whose acts no other human will can annul, held in common by the state and properly by its rulers. Against those who place sovereignty always in the people, he argues that a people may wholly transfer its rights, as an individual may sell himself into servitude, and that power is not always for the governed. Kings answer to God alone. The chapter ends with cautions on titles, election and tenure; Campbell then skips to Book II.

5. II.1 Defense of Person and Property 32 min 5

   Book II opens with the just causes of war, which Grotius separates from pretexts and motives of interest. Wars correspond to lawsuits, so their just causes are defence, recovery of property or debt, and punishment. Self-defence is lawful even against blameless attackers, but only against a present danger, never against mere fear or a suspected plot. It extends to limb and chastity, and in strict right to property, though charity and the Jewish and Roman law of the thief restrain it. The ruler’s person is excepted. States may act against remoter threats, but never wage war simply because a neighbour grows powerful.

6. II.2 The General Rights of Things 43 min 14

   Grotius traces property from an original community of goods, which in his account gave way under population growth, new arts and dispersal to division by agreement and occupation. The sea cannot be owned because it is boundless and fluid, while unoccupied lands and wild creatures can be taken, subject to the sovereign’s law. Some common rights survive the division: the right of necessity, innocent use, free passage for persons and goods, temporary stay, refuge for exiles, the purchase of necessaries, and equal access to privileges granted to foreigners generally. A nation may lawfully contract for the exclusive purchase of another’s produce.

7. II.3 On the Original Acquisition of Things, and the Right of Property in Seas and Rivers 14 min 3

   Grotius turns from property in general to particular modes of original acquisition. Making a thing from materials confirms ownership only if the materials were one’s own or unowned. Sovereignty over persons and places is distinct from ownership of things. Once states exist, rights of first occupation give way to civil law. Rivers, bays and straits enclosed by one ruler’s shores may be occupied, but not a sea that dwarfs the land around it, and treaties restricting navigation bind only their parties. River boundaries move with gradual change but not when the channel shifts suddenly, and ownerless land in a settled state reverts to the sovereign. Campbell condenses the chapter heavily.

8. II.4 Title to Desert Lands by Occupancy, Possession, and Prescription 20 min 4

   Can long possession give title between nations, when prescription is a creature of civil law? Grotius answers by way of presumed abandonment. Intention is known only by outward signs: by acts, by omissions, and above all by silence kept knowingly and freely over a long time. Time beyond memory, about a century, makes abandonment presumable, and the voluntary law of nations may make uninterrupted possession a title for the sake of peace. The unborn have no rights to lose. Possessors of crowns deserve every favourable presumption, but prescription under civil law cannot run against sovereignty itself.

9. II.9 In What Cases Jurisdiction and Property Cease 13 min 4

   How do sovereignty and property end? A family that dies out without heirs leaves its rights to the nation. A people, like a river, stays the same while its members change, and it ends only when all its members perish or it loses its political form, as Capua did under Rome. Emigration and changes of constitution leave it intact. A people that turns from republic to monarchy still owes its old debts and keeps its old place in councils. Unions merge the rights of states, divisions share them out, and colonies form new peoples on equal terms.

10. II.10 The Obligation Arising from Property 19 min 3

    Property brings obligations with it. Whoever holds another’s thing must do what he reasonably can to restore it, with its profits, whether he came by it fairly or not. Where the thing is gone, he must give back whatever he gained from it. From these two rules Grotius settles a series of cases about good-faith possessors and purchasers: when they must restore, what they may keep, and why they cannot hand the thing back to the seller. He ends by rejecting Medina’s view that fungible goods may be taken without the owner’s consent.

11. II.11 On Promises 33 min 8

    Against Connanus, who held that only formal contracts bind, Grotius argues that by natural law a deliberate promise binds in itself. He distinguishes three degrees: a statement of intention, a resolve that creates duty without a right, and a perfect promise that transfers a right like alienating property. A valid promise needs reason in the promiser, freedom from material error and a lawful object. He weighs promises made under fear, agents and ambassadors who exceed instructions, and Holland’s limit on shipowners’ liability. Acceptance completes a promise, and he sets out when it may be revoked.

12. II.12 On Contracts 35 min 17

    Grotius classifies acts that affect others as gratuitous, exchanging, partnership or mixed, and calls every non-gratuitous act a contract. Natural law requires equality in contracts: disclosure of known defects (though not of market news, as in the Rhodian grain case), free consent, and a just price. Price follows need and common estimation, and money serves because the precious metals vary little. He allows sovereign monopolies, condemns engrossing of necessities, and defends interest as compensation for risk and loss. Insurance, partnerships and naval associations get their own rules, but the law of nations gives no remedy for unequal bargains freely made.

13. II.13 On Oaths 14 min 3

    Oaths have been held sacred everywhere because they call God to witness. An oath binds in the sense its receiver understands, admits no mental reservation, and cannot make an unlawful act binding or block a greater duty. Even an oath to robbers binds before God, against Cicero, though it may give the robber no right. Sovereigns may annul or forbid their subjects’ oaths, as Hebrew husbands could annul their wives’. Christ’s prohibition of swearing concerns promissory oaths, not affirmations, and other solemn signs, such as the right hand, can carry an oath’s force.

14. II.15 On Treaties and on Engagements Made by Delegates Exceeding Their Powers 22 min 10

    Grotius turns from private contracts to public conventions. Treaties made by sovereign authority differ from engagements (sponsiones) made without a commission, which bind only once ratified, as the Caudine and Numantine cases show. Some treaties simply restate natural law, a law forgotten in ages when plunder was honourable. Others add obligations, on equal or unequal terms, and the unequal may diminish sovereignty. Treaties with non-Christians are lawful, though Christians should unite against common enemies. He then treats which ally to help first, tacit renewal, release by the other side’s breach, and ratification by acts rather than silence.

15. II.16 The Interpretation of Treaties 47 min 12

    Since minds cannot be seen, promises must be read by probable signs. Words are taken in their common sense, terms of art as experts use them, and ambiguities are settled by subject-matter, consequences, context and motive. Favourable promises are read broadly and odious ones strictly, and these rules decide the Saguntum dispute and the meaning of Carthage’s “freedom.” Treaties with free peoples are real, not personal, and outlast changes of ruler, though not in favour of usurpers. Equity limits literal meaning where it would be unlawful or intolerable. Grotius closes with rules for conflicting clauses and against reading sovereigns’ treaties by Roman law.

16. II.17 On Damages Occasioned by Injury, and the Obligation to Repair Them 19 min 3

    Grotius turns to rights arising from wrongful injury. Any fault, act or omission against a strict right creates a duty to repair the loss, including lost profits reasonably expected. Mere fitness or propriety gives no such right. Principals, accessories and those who neglect a duty to prevent harm share liability, and the wrongdoer answers for every consequence of the act. He covers homicide, maiming, theft, fraud and extortion, and the states that fail to suppress piracy or unruly privateers. Liability for slaves, animals and ship collisions he leaves to civil law, and he treats injuries to honour.

17. II.18 On the Rights of Embassies 27 min 6

    With embassies Grotius turns to the voluntary law of nations. Only envoys of independent sovereigns enjoy the rights of embassy. Those rights are admission, which may be refused for good reason, and inviolability. Weighing the authorities, Grotius concludes that nations have agreed to exempt ambassadors from local jurisdiction altogether. Offenders are sent home or their sovereign asked to punish them, and they are resisted only in self-defence. Protection holds even among enemies, rules out retaliation, and extends to the envoy’s suite and goods. Ill treatment of ambassadors has often been a cause of war.

18. II.19 On the Right of Burial 18 min 2

    Grotius treats the right of burial as a rule of the voluntary law of nations, proved by the agreement of poets, historians, philosophers and Scripture. He reviews explanations of the custom (a debt to the earth, hope of resurrection, human dignity) and concludes that burial is owed even to public enemies, citing Alexander, Hannibal and the Greek oath against Persia. Criminals should normally be buried too, though Jewish practice denied burial to suicides, whom the Platonists condemned. He ends by listing other rights that the voluntary law confirms, such as prescription and intestate succession.

19. II.20 On Punishments 1 h 35 min 13

    Grotius's long chapter on punishment, condensed by Campbell. Punishment is suffering imposed for wrongdoing; nature allows it, but only to those not guilty of the same crime, and never from mere revenge. Its proper ends are the offender's reform, the injured party's security and general deterrence, and desert sets its upper limit. Human courts may not punish thoughts, unavoidable human weakness, or acts that harm no one. Pardon is lawful, and penalties should be graded by motive, harm and capacity. Sovereigns may make war to punish grave violations of natural law anywhere, and may punish atheism, but not refusal of Christianity or Christian doctrinal error.

20. II.21 On the Communication of Punishment 29 min 3

    Grotius asks when punishment passes from the guilty to others. Accomplices, and rulers who know of a crime and could prevent it, share the guilt. A state harbouring someone who has wronged another state must either punish him or surrender him, and asylum protects the unfortunate, not criminals. Communities may be punished only while the guilty members survive. Innocent people, including children, may not be punished for another's crime, though they may lose what they would have received through the offender. An heir inherits the dead man's property and debts, not his guilt.

21. II.22 On the Unjust Causes of War 18 min 8

    Grotius separates real causes of war from pretexts, following Polybius, and lists unjust causes. These include fear of a neighbour's growing power or fortifications, mere advantage, the wish for better land, claims of discovery against people already in possession, the supposed incapacity or wickedness of the owners, and forcing liberty or a "better" government on a people. He rejects the Emperor's and the Church's claims to universal rule, denies that imperfect duties such as gratitude can be enforced by war, and notes that a just war's character is not destroyed by later bad motives.

22. II.23 On Doubtful Causes 14 min 5

    Moral questions cannot have mathematical certainty, so Grotius asks what to do in doubt. A person must not act against conscience, and where lives are at stake should take the safer course; in war, doubt should favour peace. Disputes can be settled by conference, arbitration or lot, and Grotius urges Christian powers to hold general congresses; single combat is also discussed. When claims are equal, the possessor is preferred. Only one side can be just in the strict sense, but both may be free of blame, and both may be treated as just in a war's legal effects.

23. II.24 Precautions against Rashly Engaging in War, Even upon Just Grounds 12 min 3

    Even with a just cause, war should not be rushed into. A right may be given up, and penalties remitted, from charity and Christian forgiveness. Rulers owe it to their subjects to weigh means against ends, using three rules for comparing good and evil outcomes. A people facing destruction should choose peace even at the price of liberty, and a ruler should not seek punishment by war against an equal power. War is justified only by real necessity, and only when there are resources to win.

24. II.25 The Causes of Undertaking War for Others 12 min 3

    Grotius considers wars fought for others. A ruler may defend his subjects but need not do so at heavy cost to the rest. An innocent citizen ought, out of charity, to give himself up to save the state, and the sovereign may compel him. Allies must be helped in just causes only, friends where it costs little, and any human being on the ground of common nature, though never at serious risk to oneself. Foreign powers may take arms against tyrants guilty of extreme cruelty, although the tyrant's own subjects may not resist.

25. III.1 What Is Lawful in War 43 min 10

    Book III turns to what is lawful in war. By natural law, whatever is necessary to secure a right is lawful, and new rights can arise as a war goes on. Charity forbids foreseeable harm to innocents unless the good to be gained is far greater. Goods supplied to an enemy fall into three classes for the purpose of seizure. Concealment and feints are allowed, and a lie in the strict sense is a violation of the hearer's right to judge freely; deceiving enemies is often permitted, but promises and oaths must be kept, and an enemy's subjects may not be incited to crime.

26. III.2 In What Manner the Law of Nations Renders the Property of Subjects Answerable for the Debts of Sovereigns. The Nature of Reprisals 18 min 3

    By natural law no one answers for another's debts. Grotius concedes, however, that the voluntary law of nations makes subjects' persons and property liable for what their state owes or refuses to repair, a rule born of necessity and tacit consent. He discusses the Athenian seizure of three citizens (androlepsia) and Demosthenes' speech against Aristocrates, then reprisals and letters of marque. Reprisals may not take innocent lives. They fall on permanent subjects but not on temporary residents or ambassadors, and what is taken must be returned once the debt is satisfied.

27. III.3 On Just or Solemn War According to the Law of Nations on Declarations of War 24 min 6

    Grotius defines the “solemn” or formal war of the law of nations: a war waged by sovereign authority on both sides and publicly declared. States remain states even when they act unjustly, unlike pirates and robbers, though robber bands can grow into states over time. Natural law needs no declaration to repel force, but the special legal effects of formal war require one, conditional (a demand for redress) or absolute. The Roman fetial rites are local custom, not law of nations. A declaration covers the enemy’s allies, and its true purpose is to show that the war is public, not a private adventure.

28. III.4 On the Right of Killing an Enemy in Lawful War and Committing Other Acts of Hostility 23 min 5

    Grotius distinguishes what is truly lawful from what the law of nations merely leaves unpunished. In a formal war both sides, just or not, may harm the enemy’s persons and goods, and neutrals may not treat captured soldiers as criminals. The permission is vast: it reaches everyone in enemy territory, enemy subjects anywhere outside neutral ground, and even women, children, prisoners, suppliants, those who surrender and hostages, as ancient examples show. Retaliation and obstinate resistance explain such killings but do not justify them. The law of nations forbids some things nature permits, such as the harsh treatment of captured spies.

29. III.5 On the Right to Lay Waste an Enemy’s Country and Carry Off His Effects 5 min 1

    A short chapter on devastation. Since natural law permits killing an enemy, it also permits spoiling his goods, and history is full of burned crops, razed cities and wasted countries. The law of nations exempts not even sacred things, which Grotius treats as public property dedicated to religion and so transferable to a conqueror, nor tombs, though insult to the dead is forbidden. Enemy property may be taken by stratagem as well as force, provided there is no treachery.

30. III.6 On the Acquisition of Territory and Property by Right of Conquest 28 min 6

    Under the law of nations anyone in a formal war becomes owner of what he takes from the enemy, a title all nations respect. Movables count as captured once carried beyond pursuit, by recent European custom after twenty-four hours; land, only when held by fortifications. Only enemy property may be taken, and goods in enemy ships are merely presumed enemy goods. Grotius separates public acts of war, which gain for the state, from private ones, and surveys how different peoples divided spoils among state, generals, soldiers, allies and privateers, before treating captures made in neutral territory.

31. III.7 On the Right over Prisoners of War 6 min 4

    By nature no one is a slave, but the law of nations makes every captive of a formal war a slave once brought within the captor’s territory, along with his later children and all he carries; masters held power of life and death until Roman law restrained it. Grotius presents this as an inducement to spare prisoners rather than kill them. Among Christian powers, and among Muslims in their dealings with each other, the enslavement of prisoners of war has been abandoned; captives are instead held for ransom, those of high rank by the state.

32. III.8 On Empire over the Conquered 6 min 1

    States, like individuals, can subject others by conquest. A conqueror succeeds to all the rights of the conquered sovereign or people and may hold the territory as a dependent province, as his own patrimony, or under a mixed government combining subjection with some liberty. Conquered peoples have been disarmed and made to change their customs and language. Incorporeal rights such as debts also pass to the victor, as when Alexander, after taking Thebes, released the Thessalians from a debt owed to the Thebans.

33. III.9 Of the Right of Postliminium 19 min 4

    Postliminium is the right by which persons and things taken in war return to their former condition when they come back within their own state’s or an ally’s territory. Grotius traces its Roman meaning and sets out its scope: free persons, slaves, land, jurisdictions and some things useful in war return, but movable booty does not, and debts and marriages are not revived. A dispersed people such as Saguntum or Thebes cannot reclaim its rights. Goods taken by pirates are recoverable anywhere. Captivity outside war, a survival of ruder ages, is now abandoned except against peoples like the Algerines.

34. III.11 The Right of Killing Enemies, in Just War, to be Tempered with Moderation and Humanity 15 min 5

    The first of the moderations of war. Killing is just only as punishment for a capital crime or as necessary defence of life, and charity forbids killing for property. Grotius distinguishes misfortune from guilt and the authors of a war from those who merely follow, and urges sparing those who fought in honest error. Women, children, the old, clergy, scholars, farmers, merchants and artisans should be spared; surrender should be accepted; terror and severity are rarely justified, and never against faithful resistance. Hostages may not be killed, since no one can give away a right over his own life.

35. III.12 On Moderation in Despoiling an Enemy’s Country 8 min 3

    Destroying another’s property is just only from necessity, as payment of a debt, or as proportionate punishment; a few burned houses never justify wasting a whole country. Devastation should be avoided when the property can be held instead, when victory is near, or when the enemy has other supplies, as in the Low Countries, where villages paid contributions to both armies. Works of art, temples and tombs, which do nothing to sustain a war, should be spared. Moderation also prevents an enemy from being driven to despair.

36. III.13 On Moderation in Making Captures in War 6 min 1

    Even in a just war, strict justice allows the capture of enemy goods only up to the amount owed, with anything more held as a pledge and later restored. The law of nations lets the goods of an enemy state’s subjects be taken for its debts and damages, including the costs of the war, but not as punishment for the state’s crimes, since punishment is personal. Seizing the goods of innocent subjects is legally permitted but departs from humanity, and Roman history offers examples of conquered lands being restored.

37. III.15 On Moderation in Acquiring Dominion 7 min 4

    A just conqueror may acquire sovereignty, but should not go beyond compensation and future security. War aims at peace, and early peoples fought to keep their lands, not to extend them. Moderate alternatives to annexation include incorporating the conquered, as Rome did, leaving them their kingdoms, placing garrisons, imposing tribute or limits on arms, and allowing them part of their former sovereignty, their own laws and magistrates, and above all their religion. Such restraint is both humane and politic, since conquests are easier made than kept.

38. III.16 On Moderation with Respect to Things Excluded from the Right of Postliminium by the Law of Nations 4 min 3

    Things taken in an unjust war must be restored to their owners, even by later possessors, since no one can pass on a better title than he has. A purchaser may recover what the recovery is worth to the owner, as Abraham deducted his expenses from the spoils he recovered from the five kings. Subjects and territories taken unjustly should return to their former sovereigns. When the claim to restitution expires is settled by presumed abandonment, and in doubtful cases a money settlement is best.

39. III.17 Respecting Those Who Are Neutral in War 3 min 1

    Neutrals may not be despoiled except in extreme necessity, and then only so far as the necessity requires and with full payment. Neutrals in turn should not strengthen an unjust cause or hinder a just one; when the cause is doubtful they must treat both sides alike in passage, supplies and recruitment.

40. III.19 On Good Faith between Enemies 14 min 5

    Good faith is owed to every enemy, because the obligation of a promise arises from reason and speech, which war does not abolish. It is owed even to pirates and tyrants, who stand outside the law of nations but not outside natural law. Promises extorted by unjust fear may be void, unless confirmed by oath; between parties to a formal war, even treaties made under pressure bind, or wars could never end, though conscience forbids keeping unjust gains. Faith may lapse when the other side breaks its terms or when compensation is due.

41. III.20 On the Public Faith by Which War Is Concluded; Comprising Treaties of Peace, and the Nature of Arbitration, Surrender, Hostages, Pledges 44 min 8

    The longest chapter covers how wars end. Peace is made by whoever holds the power of war: the king in a monarchy, the governing council elsewhere. Kingdoms are generally not the king’s patrimony and cannot be alienated without consent, but the state may take subjects’ property for the public good if it pays compensation. Grotius gives rules for interpreting treaties, sets out what amnesty covers, and explains how a peace is broken. He closes with arbitration between sovereigns, which must be final, and with surrender, hostages and pledges.

42. III.21 On Faith During the Continuance of War, on Truces, Safe-Conducts, and the Redemption of Prisoners 20 min 1

    During war, belligerents still deal with each other through truces, safe-conducts and the ransoming of prisoners. A truce suspends fighting without ending the war, so no new declaration is needed when it expires. Grotius explains when truces bind subjects, what they permit (withdrawing, repairing walls) and forbid (hostile acts, bribing garrisons), and the remedies for breaches. He then sets out how safe-conducts are interpreted (their scope, attendants, goods and duration) and commends the redemption of prisoners.

43. III.22 On the Faith of Those Invested with Subordinate Powers in War 9 min 1

    Agreements made by generals and other subordinate officers bind their sovereign when made within their known commission or later ratified, and he cannot keep their benefits while rejecting their terms. An officer who exceeds his powers must make good the loss himself. Commanders may grant truces for their own forces and accept the capitulation of towns, but they cannot decide the causes of war, make peace or cede territory. Such engagements are interpreted so as to bind neither the sovereign nor the commander beyond what was intended.

44. III.24 On Tacit Faith 3 min 1

    Consent can be given tacitly. A person who seeks a state’s protection, or who requests or grants a conference, implicitly promises to do it no harm, though a parley may still be used for lawful stratagem. Signs fixed by custom, such as olive branches or the white flag, bind like spoken words.

45. III.25 Conclusion 5 min 1

    Grotius closes the treatise, hoping that others will build on its foundation. He urges good faith, which holds together both states and the wider society of nations, and keeping peace in view even in war, since peace is the only lawful end of fighting. Peace serves the weaker party, which should yield something to get it, and the stronger, which should fear an enemy’s despair; equals should settle while both are confident. Peace once made must be kept faithfully. The work ends with a prayer that God will write these principles on rulers’ hearts.