Chapter 2

The Lawfulness of War

July 26, 2022

Part 1

Is any war is just? Is it ever lawful to make war?

But this question must be compared with the rights of nature.

Cicero in the third book of his Bounds of Good and Evil proves from the Stoics’ writings that there are first principles of nature.

  • The Greeks call them the first natural impressions.
  • These are succeeded by other principles of obligation superior even to the first impressions themselves.

He calls the the following as principles of nature:

  • self-preservation which every animal feels from birth
  • its abhorrence of everything that threatens death

To him, if left to his own choice, every man would prefer a sound and perfect body to one that is mutilated and deformed.

Thus our first duty is to:

  • preserve ourselves in a natural state
  • hold to everything conformable
  • be averse to everything repugnant to nature

These principles agree to reason. Human reason is superior to the human body.

This agreement with reason is the basis of propriety. It should have more weight than the impulse of appetite, because the principles of nature recommend right reason as a rule that should be of higher value than bare instinct.

The truth of this is easily assented to by all men of sound judgment without any other demonstration, it32 follows that

Thus, in inquiring into the laws of nature, the first object of consideration is:

  1. What is agreeable to those principles of nature?
  2. What are the rules, which, though arising only out of the former, are of higher dignity, and not only to be embraced, when offered, but pursued by all the means in our power.

This last principle is called propriety.

This propriety sometimes is limited to a very narrow point, the least departure from which is a deviation into vice.

Sometimes, it allows a wider scope, so that some actions, even laudable in themselves, may be omitted or varied without crime.

In this case, there is not an immediate distinction between right and wrong. The shades are gradual, and their termination unperceived; not like a direct contrast, where the opposition is immediately seen, and the first step is a transgression of the fixed bounds.

The general object of divine and human laws is to give the authority of obligation to what was only laudable in itself.

Can a particular action be done without injustice?

An act of injustice is that, which necessarily has in it anything repugnant to the nature of a reasonable and social being.

So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it.

For the preservation of our lives and persons, which is the end of war, and the possession or acquirement of things necessary and useful to life is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.

Xenophon says that every animal knows a certain method of fighting without any other instructor than nature.

Ovid’s Art of Fishery writes that all animals know their enemy and his means of defence, and the strength and measure of their own weapons. Horace has said, “the wolf attacks with its teeth, the bull with its horns, and whence is this knowledge derived but from instinct?”

On this subject Lucretius enlarges, observing that “every creature knows its own powers. The calf butts with its forehead, before its horns appear, and strikes with all33 imaginable fury.” On which Galen expresses himself in the following manner, “every animal appears to defend itself with that part of its body, in which it excels others.

The calf butts with its head before its horns have grown, and the colt strikes with its heel before its hoofs are hard, as the young dog attempts to bite before his teeth are strong.” The same writer in describing the use of different parts of the body, says, “that man is a creature formed for peace and war.

His armour forms not an immediate part of his body; but he has hands fit for preparing and handling arms, and we see infants using them spontaneously, without being taught to do so.” Aristotle in the 4th book, and tenth chapter of the history of animals, says, “that the hand serves man for a spear, a sword, or any arms whatever, because it can hold and wield them.” Now right reason and the nature of society which claims the second, and indeed more important place in this inquiry, prohibit not all force, but only that which is repugnant to society, by depriving another of his right.

For the end of society is to form a common and united aid to preserve to every one his own. Which may easily be understood to have obtained, before what is now called property was introduced.

For the free use of life and limbs was so much the right of every one, that it could not be infringed or attacked without injustice. So the use of the common productions of nature was the right of the first occupier, and for any one to rob him of that was manifest injustice.

This may be more easily understood, since law and custom have established property under its present form. Tully has expressed this in the third book of his Offices in the following words, “if every member could have separate feeling, and imagine it could derive vigour from engrossing the strength of a neighboring part of the body, the whole frame would languish and perish.

In the same manner if every one of us, for his own advantage, might rob another of what he pleased, there would be a total overthrow of human society and intercourse.

For though it is allowed by nature for every one to give the preference to himself before another in the enjoyment of life and necessaries, yet she does not permit us to increase our means and riches by the spoils of others.” It is not therefore contrary to the nature of society to provide and consult for ourselves, if another’s right is not injured; the force therefore, which inviolably abstains from touching the rights of others, is not unjust.

For as the same Cicero observes some where in his Epistles, that as there are two modes of contending, the one by argument, and the other by force, and as the former is peculiar to man, and the latter common to him with the brute creation, we must have recourse to the latter, when it is impossible to use the former. And again, what can be opposed to force, but force? Ulpian observes that Cassius says, it is lawful to repel force by force, and it is a right apparently provided by nature to repel arms with arms, with whom Ovid agrees, observing that the laws permit us to take up arms against those that bear them.

Part 2

All war is not repugnant to the law of nature.

Abraham and his servants and confederates won a victory, by force of arms, over the four Kings who had plundered Sodom.

God approved of his act as stated by his priest Melchisedech who said to him:

“Blessed be the most high God, who hath delivered thine enemies into thine hand.” Gen. xiv. 20.

Abraham had taken up arms without any special command from God.

But this man, no less eminent for sanctity than wisdom, felt himself authorized by the law of nature, as it is admitted by the evidence of Berosus, and Orpheus, who were strangers.

There is no occasion to appeal to the history of the seven nations, whom God delivered up into the hands of the Israelites to be destroyed. For there was a special command to execute the judgment of God upon nations guilty of the greatest crimes. From whence these wars are literally styled in scripture, Battles of the Lord, as undertaken, not by human will, but by divine appointment. The xvii. chapter of Exodus supplies a passage more to the purpose, relating the overthrow which the Israelites, conducted by Moses and Joshua, made of the Amalekites. In this act, there was no express commission from God, but only an approval after it was done.

But in the xix. chap. of Deut. ver. 10, 15. God has prescribed general and standing laws to his people on the manner of making war, by this circumstance shewing that a war may be just without any express commandment from him. Because in the same passage, a plain distinction is made between the case of the seven nations and that of others. And as there is35 no special edict prescribing the just causes for which war may be undertaken, the determination of them is left to the discovery of natural reason. Of this kind is the war of Jephthah against the Ammonites, in defence of their borders. Jud. xi. and the war of David against the same people for having violated the rights of his Ambassadors. 2 Sam. x. To the preceding observations may be added, what the inspired writer of the Epistle to the Hebrews says of Gideon, Barack, Sampson, Jephthah, David, Samuel, and others, who by faith made war upon kingdoms, prevailed in war and put whole armies of their enemies to flight. Heb. xi. 33, 34. The whole tenor of this passage shews, that the word faith implies a persuasion, that what they did was believed to be agreeable to the will of God. In the same manner, David is said, by a woman distinguished for her wisdom, 1 Sam. xxv. 28. to fight the battles of the Lord, that is to make lawful and just wars.

Part 3

Proofs of what has been advanced, may be drawn also from the consent of all, especially, of the wisest nations. There is a celebrated passage in Cicero’s speech for Milo, in which, justifying recourse to force in defence of life, he bears ample testimony to the feelings of nature, who has given us this law, which is not written, but innate, which we have not received by instruction, hearing or reading, but the elements of it have been engraven in our hearts and minds with her own hand: a law which is not the effect of habit and acquirement, but forms a part in the original complexion of our frame: so that if our lives are threatened with assassination or open violence from the hands of robbers or enemies, ANY means of defence would be allowed and laudable. He proceeds, reason has taught this to the learned, necessity to the barbarians, custom to nations, and nature herself to wild beasts, to use every possible means of repelling force offered to their bodies, their limbs and their lives. Caius and Lawyer says, natural reason permits us to defend ourselves against dangers. And Florentinus, another legal authority, maintains, that whatever any one does in defence of his person ought to be esteemed right. Josephus observes, that the love of life is a law of nature strongly implanted in all creatures, and therefore we look upon those as enemies, who would openly deprive us of it.

This principle is founded on reasons of equity, so evident, that even in the brute creation, who have no idea of right, we make a distinction between attack and defence.36 For when Ulpian had said, that an animal without knowledge, that is without the use of reason, could not possibly do wrong, he immediately adds, that when two animals fight, if one kills the other, the distinction of Quintius Mutius must be admitted, that if the aggressor were killed no damages could be recovered; but if the other, which was attacked, an action might be maintained. There is a passage in Pliny, which will serve for an explanation of this, he says that the fiercest lions do not fight with each other, nor do serpents bite serpents. But if any violence is done to the tamest of them, they are roused, and upon receiving any hurt, will defend themselves with the greatest alacrity and vigour.

Part 4

From the law of nature then which may also be called the law of nations, it is evident that all kinds of war are not to be condemned. In the same manner, all history and the laws of manners of every people sufficiently inform us, that war is not condemned by the voluntary law of nations. Indeed Hermogenianus has said, that wars were introduced by the law of nations, a passage which ought to be explained somewhat differently from the general interpretation given to it.

The meaning of it is, that certain formalities, attending war, were introduced by the law of nations, which formalities were necessary to secure the peculiar privileges arising out of the law. From hence a distinction, which there will be occasion to use hereafter, between a war with the usual formalities of the law of nations, which is called just or perfect, and an informal war, which does not for that reason cease to be just, or agreeable to right. For some wars, when made upon just grounds, though not exactly conformable, yet are not repugnant to the law, as will be explained more fully hereafter. By the law of the nations, says Livy, provision is made to repel force by arms; and Florentinus declares, that the law of nations allows us to repel violence and injury, in order to protect our persons.