Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XXIII: On Doubtful Causes
Origin of moral doubtsThe dictates of conscience, though erroneous, not to be violatedOpposite opinions supported by argument, or by authorityIn doubtful and important matters the safer side of the question to be followedIn such cases it is right to abstain from warDisputes settled by conference or arbitrationChristian dutiesWhether single combat is allowable in order to avoid warIn cases of equal doubt the claims of the present possessor to be preferredWhere neither party is in possession, claims to be dividedWhether a war can be just on both sides, explained by a distinction.
I. THERE is much truth in Aristotles observation that moral reasonings can never amount to the certainty of mathematical demonstration. Because in mathematical reasoning, all the figures are considered in the abstract, purely by themselves, and without relation to the circumstances of time or place, so that there is nothing to warp the judgment from the object immediately under consideration. Besides the figures in general form a direct contrast to each other. Thus, for instance, there is no intermediate line between a straight line and a curve.
But it is not so in morals, where the least circumstances vary the subject, and admit a latitude of interpretation, settling the points of truth and justice between two extremes. So that between what is right and what is unlawful there is a middle space, where it is easy to incline to the one side, or to the other. This occasions an ambiguity somewhat like the difficulty of deciding the precise moment, where the twilight begins, and where it ends. From hence Aristotle concludes that it is sometimes difficult to determine, between two extremes, what line of conduct ought to be chosen or rejected.
II. But it must be laid down as a necessary principle, that although an action may in reality be just, yet if the party doing it, after weighing every circumstance, cannot reconcile the act to his conscience, he incurs some degree of guilt. For whatever is not of faith, says the Apostle, is sin; where, by the term faith he means a deliberate judgment of the mind. For God has given conscience a judicial power to be the sovereign guide of human actions, by despising whose admonitions the mind is stupified into brutal hardness. For it often happens that judgment can point out nothing certain, but hesitates; and when such doubts and hesitations cannot satisfactorily be cleared up, the rule of Cicero is a safe one to follow, who says, that it is an excellent injunction, which forbids us to do anything of the rectitude or impropriety of which we entertain a doubt.
But this rule cannot be applied, where of two things, in the choice of which there is equal doubt, the one must be done, in which case that must be selected, which seems to be the least unjust. For on all occasions, where a choice cannot be avoided, the less of two evils assumes the appearance of a virtue.
III. But in doubtful cases, after examination, the mind seldom remains neuter, but inclines to one side, or the other, persuaded either by the merits of the case, or by respect for the judgment of those, who have delivered an opinion upon the question. Now the merits of the case are derived either from the causes, the effects, or other concomitant circumstances.
IV. To apprehend such distinctions properly, practice and penetration are necessary, and where men have not in themselves a capacity for the active exercise of judgment it behoves them to follow the maxims of others, who are distinguished by their wisdom and experience. For, in the opinion of Aristotle, those things are probably just, or true, which seem so to all, or to the greater part of men of worth. And this is the method of judging pursued by Sovereign Princes, whose engagements in the affairs of life allow them but little leisure for study and deliberation. Thus the ancient Romans never undertook wars, till they had consulted the sacred college, established for that purpose, and the Christian Emperors scarcely ever did so without advising with the Bishops, in order to be apprized of any thing therein that might affect religion.
V. It may happen in many disputed points, that the intrinsic merits of the case, or the opinions of the learned, are equal on both sides. When that happens, if the matters in discussion are of no great importance, there is nothing to blame in the person, that makes his choice either way. But in matters of moment, where the lives of men are at stake, the decision should incline to the safer side, according to the proverbial maxim, which pronounces it better to acquit the guilty than to condemn the innocent.
VI. War then being an object of such weighty magnitude, in which the innocent must often be involved in the sufferings of the guilty, between wavering opinions the balance should incline in favour of peace.
VII. The first method is that of conference. For, in the words of Cicero, there being two methods of deciding quarrels, the one by discussion and the other by force, the former, a peculiar characteristic of man, and the latter, of the brute creation: when the first of these methods fails, men are obliged to have recourse to the latter. Mardonius, in the Polyhymnia of Herodotus, blames the Grecians, who, being united in one language, might settle their quarrels by messengers of peace, by heralds, and negotiations, rather than by war.
VIII. The other method is that of compromise, which takes place between those, who have no common judge. Among innumerable instances of this kind in ancient history, we may select that given by Xenophon in his account of Cyrus, where that prince takes the king of the Indians for arbitrator between himself and the king of Assyria. The Carthaginians in their disputes with Masinissa prefer a settlement of this kind before a decision of war. Livy too informs us that the Romans themselves, in a dispute with the Samnites, made an appeal to the common allies of both.
The office of deciding wars and putting an end to the contentions of armies was assigned, according to Strabo, to the Druids of the Gauls, and upon the testimony of the same writer, it formed a part of the priestly functions among the Iberians.
Surely then it is a mode of terminating their disputes, balancing their powers, and settling their pretensions worthy to be adopted by Christian Kings and States. For if, in order to avoid trials before judges who were strangers to the true religion, the Jews and Christians appointed arbitrators of their own, and it was a practice recommended and enjoined by St. Paul, how much more ought such a practice to be recommended and enforced, to gain the still nobler end of preventing the calamities of war.
These and many other reasons of no less importance might be advanced for recommending to Christian powers general congresses for the adjustment of their various interests, and for compelling the refractory to submit to equitable terms of peace.
IX. A third method of terminating disputes, without hostilities, was by lot, a practice commended by Dion Chrysostom in his speech on the interposition of fortune in directing affairs, and it was commended long before him by Solomon in the xviii. chapter of his Proverbs.
X. Nearly related to the last named method is that of single combat, a practice recommended under the idea that by the risque of two lives a quarrel might be decided, which would otherwise have cost the blood of thousands. In Livy we find Metius addressing Tullus in the following terms, let us try some method of determining to whom the pre-eminence shall belong, without wasting the blood of each people. Strabo says it was the practice of the ancient Greeks, and Aeneas proposed it to Turnus, as the most equitable way of settling their pretensions. It is described too as the custom of the ancient Franks.
XI. Although in doubtful cases, both sides are bound to devise every means of avoiding hostilities, yet it is a duty more incumbent upon the claimant than upon the immediate possessor of whatever may be the subject of dispute. For it is a rule not only of civil, but of natural law, that, where the pretensions are equal, those of the possessor are to be preferred.
To the foregoing remarks an additional observation may be made, that if any one, knowing his pretensions to be just, cannot produce sufficient proofs to convict the intruder of injustice, he cannot lawfully have recourse to arms, because he has no OSTENSIBLE RIGHT, by which he can compel the intruder to relinquish the possession.
XIII. From what has been said it will not be difficult to settle a much agitated question, whether, with respect to those, who are the principal movers of a war, there can be justice on both sides. For there are distinctions proper to be made in the various acceptations of the word JUST.
A thing is said to be just, either as to its causes, or its effects. The causes too may be confined either to justice in a PARTICULAR acceptation, or they may be extended so as to include under that name every kind of rectitude. Again, a particular acceptation may be divided into two kinds, one relating to the ACTION, and the other to the agent.1 An agent may be said to act justly, when, in what he does, he commits no breach of STRICT LAW, though his conduct may not be conformable to equity.
In a PARTICULAR acceptation of the word justice, with regard to a matter in dispute, it cannot in war, any more than in legal proceedings, apply to both sides. For there can be no moral principle, commanding us, under the same circumstances, both to DO, and to ABSTAIN from a particular action. It may happen indeed that neither of two belligerent powers may act unjustly. For no one can be charged with acting unjustly unless he knows that he is doing so; but there are many, who are not aware of the nature, extent, and consequences of their measures. Thus in a law-suit, both parties may sincerely believe that they have justice on their side. For many things both in law and fact, which would establish a right, may escape the notice of men.
In a GENERAL acceptation, an action may be called just, where the agent is free from every kind of blame. Yet in many cases an agent may deviate from the strict rules of legal justice, and be liable to no blame, when that deviation is owing to unavoidable ignorance, there having been neither time nor opportunity sufficient for him to know the substance, or perhaps existence of the law. So it may happen in law-suits, that both parties are free not only from the imputation of injustice, but from all blame, especially where either of them is litigating a matter not on his own, but on anothers account; as for instance where a guardian is acting for his ward, he would not be authorized in abandoning even a doubted right. Aristotle says that in matters of disputed right neither side can be charged with injustice; conformably to which opinion Quintilian observes that an upright pleader may be engaged on either side of the question. Aristotle further observes that passing a just judgment is an ambiguous term, signifying that a judge determines either according to the strict letter of the law, or according to the dictates of his own conscience. And, in another place, he has said that giving a wrong judgment through ignorance is no act of injustice.
But in matters of war and peace, where such weighty and varied interests on all sides are concerned, it would be difficult to obtain a judgment purely impartial, and abstracted from all personal motives, unless there be the most clear and undeniable evidence on the points in question.
If we denominate a thing to be just, from its effect in conferring certain rights, in this sense it is plain that in war there may be justice on both sides. In the same manner, a sentence not strictly legal, or a possession not perfectly just may nevertheless confer certain rights.
Note 1. Thus letters of marque and reprisal, by which individuals are enabled to redress their own wrongs, must issue from the sovereign power, otherwise the hostilities of such individuals would be unlawful. So that here the ACTION would be unlawful, that is unjust, unless performed by an AGENT, who had a commission from public authority. [back]