Commentary on the Law of Prize and Booty. Hugo Grotius

      At this point, however, we are confronted with a difficult problem. For we have already said that in an essentially unjust war the subjects, though acting in ignorance, are nevertheless “bringing about a wrong”⁸ and are therefore rightly attacked in war; yet in the present connexion we say that those same subjects, when ignorant, “act as righteous persons” when they wage war; but he who “acts as a righteous person” is at the same time “acting with righteous intent” and “bringing about what is right”; now, a single act cannot be both right and wrong, since these two concepts are diametrically opposed to each other, and on the other hand, it is certain that a given individual cannot be acting both “as a righteous person” and “as an unrighteous person,” since both these forms of conduct relate to the disposition of the agent, in which contrary feelings regarding a given matter cannot be entertained simultaneously. Nevertheless, it is possible for the same person to bring about a wrong and a right effect at one and the same time, though not with respect to a single object. For actions which proceed from an identical source can have an opposite effect upon different objects. For example, clay is hardened by the action of the selfsame fire that softens wax. Similarly, when a subject is waging by lawful authority a war that is in itself unjust, the effect constitutes a wrong in relation to the party against whom the war is directed; yet it represents a right from the standpoint of the party who gives the order, and not merely a right, but justice itself. For (as we indicated above) virtue in the subject must bear a relation to the authority in command. The following argument will clarify this point: any act whose omission would be characteristic of an unrighteous person, is characteristic of a righteous person when it is not omitted; and a subject would be “acting as an unrighteous person” if, when his magistrate gave orders for a war not known by the subject to be unjust, the latter should refuse to carry on that war; moreover, he would be sinning not only in a civic capacity but also against his conscience.^a For, as Augustine^b [35] explains, “when a soldier, acting in obedience to the power lawfully set over him, slays a man, that soldier is not guilty of homicide by any law of his own state; on the contrary, if he has failed to act thus, he is guilty of betrayal and contempt of sovereign authority. If, however, he had committed this same act of his own accord and by his own authority, he would have become liable to the charge of shedding human blood. Thus he will be punished for failing to perform, when bidden to do so, the very act that he is punished for performing unbidden.” Hence it follows that a subject “acts as a righteous person” when waging a war that he does not regard as unjust, even if wrong is thereby inflicted upon another.^c

      Nor is there any reason to be surprised at this conclusion. For the judge who sentences an innocent prisoner when the latter has been convicted by legal proofs, is also “acting as a righteous person,” since he is doing that which it would be sinful for him not to do; yet the wrong done to the innocent person is not lessened by these circumstances. A similar statement could be made in regard to the person executing a death sentence, inasmuch as he is bound to execute that sentence unless he is convinced that the command to do so is unjust. Despite the fact that such cases admit of an occasional error in reasoning, this possibility of error does not vitiate the justice of the act involved, since (as the Scholastics^d have taught) the volition attached to erring reason is wicked only in those instances where knowledge is obligatory. Furthermore, there are many just causes of war whose public disclosure is inexpedient,^e nor is it fitting that a private individual should be curious in such a situation; for if a delay were permitted for each person’s examination of the cause in question, opportunities to build up resistance would be afforded to the enemy.

      In the foregoing observations, we have an explanation of the ruling, “He inflicts harm who commands that it be inflicted, but he is guiltless who must necessarily obey”;^a and of this other ruling, too: “If a free man has inflicted a wrong with his own hand by order of another, [35′] action may be brought against the party who gave the command, provided that the latter had the right of command; but if he did not have this right, the action must be brought against the party who committed the act.”^b The same principle may be applied to explain the words of Augustine:^c “the just man shall give no special thought to any consideration other than this, that the person undertaking the war is one who has a lawful right to wage war.” Thus Panormitanus^d appends a shrewd restriction to Hostiensis’^e pronouncement against war, in stating that a war is presumed to be just when it has been declared by a superior power. Not only in the opinion of Panormitanus, but also by unanimous agreement among all of the theologians and teachers of canon and civil law,^f in every case of this kind, subjects fight justly and are exempt from any charge of murder.

      Conclusion VI, Article IV

      In short, the contention of these authorities is equivalent to the conclusion which we shall formulate in the following terms: For subjects, that war is just which is waged against an opponent whom their superior has ordered them to attack in war, provided that the reason of the subjects is not opposed thereto after weighing the probabilities.

      The difficult and much-mooted question of whether or not it is possible for a war to be just on both sides,^g is susceptible of clarification on the basis of the comments already made. For there is no doubt but that the remaining requisites of justice—for instance, those relative to authority, mode of warfare, or intent—can be present in both belligerents, so that the whole of the difficulty lies in the matter with which we have just dealt. Indeed, it does not seem possible that one might justly resist a person seeking to obtain his rights, in the same manner as if one were resisting the perpetrator of a wrong. Thus it becomes necessary to draw a distinction between subjects and persons in command.

      Article I of Corollary

      For if we are referring to the state or magistrate authorizing a war, we are more likely to find both belligerent parties in the wrong than we are to find right on both sides. Take for example a case in which a debt of five is owed, and one party seeks to collect ten while the other offers no payment whatsoever. For we have here a situation identical with that created by two mutually contradictory statements, which may both be false at one and the same time whereas they cannot both be true simultaneously. Of course, it is possible for princes to fall into error either of law or of fact,^a and the error may be excusable; but if such an inadvertent mistake should occur during a judicial trial, that would not enable us to say any more truly that the suit was justly litigated. For in the case [36] of voluntary agents it is necessary, if they are to be regarded as acting justly, that their action shall in itself be in conformity with the laws. Therefore, in so far as voluntary agents are concerned, there can be no war that is just for both parties.

      On the other hand, if we refer exclusively to those persons who serve in warfare, there is nothing to preclude the possibility of a war that is just on both sides. For the issue of justice as a whole turns not upon a single fact, but rather upon the conflicting orders and opinions of the various persons in command; and furthermore, the conflicting acts of different commanders do not necessarily invalidate each other, just as it is not impossible that contrary opinions, both of a credible nature, may occur to different men in regard to one and the same matter.

      

      ’Tis not permitted us to know which one

       More justly wars; for each supports his cause

       With high authority. . . .^a

      Just enemies

      The same theme is touched upon in the following quotation from Cicero:^b “Indeed, a certain confusion prevailed: generals of the greatest renown were pitted against each other. Many persons were in doubt as to what would be the best course: many, as to what would be expedient for themselves; many others, as to what would be seemly; and some were doubtful even as to what would be lawful.” Such, then, are the persons referred to in various passages as “ just enemies,” namely, those who do what they do at the command of a superior power. Consequently, within a state tyrants and rebels are not classified as just enemies, and outside the bounds of any state brigands and pirates are excluded from this classification, although the reason for excluding these groups has not hitherto been given sufficient consideration.

      Article II