The Lawfulness of Warby Hugo Grotius
A greater difficulty occurs respecting the divine voluntary law.
Nor is there any force in the objection that as the law of nature is unchangeable, nothing can be appointed even by God himself contrary to it. For this is true only in those things, which the law of nature positively forbids or commands; not in those which are tacitly permitted by the same law.
For acts of that kind, not falling strictly within the general rule, but37 being exceptions to the law of nature, may be either forbidden or commanded.
The first objection usually made against the lawfulness of war is taken from the law given to Noah and his posterity, Gen. ix. 5, 6, where God thus speaks:
“Surely the blood of your lives will I require; at the hand of every beast will I require it, and at the hand of every man; at the hand of every man’s brother will I require the life of man. Whoever sheds man’s blood, by man shall his blood be shed; for in the image of God made he man.”
Here some take the phrase of requiring blood, in the most general sense, and the other part, that blood shall be shed in its turn, they consider as a bare threat, and not an approbation; neither of which acceptations can be admitted. For the prohibition of shedding blood extends not beyond the law itself, which declares, Thou shalt not kill; but passes no condemnation upon capital punishments or wars undertaken by public authority.
Neither the law of Moses, nor that given to Noah established any thing new, they were only a declaratory repetition of the law of nature, that had been obliterated by depraved custom.
So that the shedding of blood in a criminal and wanton manner is the only act prohibited by those commandments. Thus every act of homicide does not amount to murder, but only that, which is committed with a wilful and malicious intention to destroy the life of an innocent person.
As to what follows about blood being shed in return for blood, it seems to imply not a mere act of personal revenge, but the deliberate exercise of a perfect right, which may be thus explained; it is not unjust, according to the principles of nature that any one should suffer in proportion to the evil he has done, conformably to the judicial maxim of Rhadamanthus, that if any one himself suffers what he has done, it is but just and right.
The same opinion is thus expressed by Seneca the father; “it is but a just retaliation for any one to suffer in his own person the evil which he intended to inflict upon another.” From a sense of this natural justice, Cain knowing himself guilty of his brother’s blood said, “whosoever finds me shall kill me.”
But as in those early times, when men were few, and aggressions rare, there was less occasion for examples, God restrained by an express commandment the impulse of nature which appeared lawful, he forbad any one to38 kill the murderer, at the same time prohibiting all intercourse with him, even so far as not to touch him.6
Plato has established this in his laws, and the same rule prevailed in Greece, as appears from the following passage in Euripides, “our fathers of old did well in banishing from their intercourse and sight any one that had shed another’s blood; imposing banishment by way of atonement, rather than inflicting death.”
We find Thucydides of the same opinion, “that anciently lighter punishments were inflicted for the greatest crimes; but in process of time, as those penalties came to be despised, legislators were obliged to have recourse to death in certain cases.” We may add to the above instances the remark of Lactantius, that as yet it appeared a sin to punish even the most wicked men with death.
The conjecture of the divine will taken from the remarkable instance of Cain, whom no one was permitted to kill passed into a law, so that Lanech, having perpetrated a similar deed, promised himself impunity from this example.—Gen. iv. 24.
But as before the deluge, in the time of the Giants, the practice of frequent and wanton murders had prevailed; upon the renewal of the human race, after the deluge, that the same evil custom might not be established, God thought proper to restrain it by severer means. The lenity of former ages was laid aside, and the divine authority gave a sanction to the precepts of natural justice, that whoever killed a murderer should be innocent.
After tribunals were erected, the power over life was, for the very best reasons, conferred upon the judges alone. Still some traces of ancient manners remained in the right which was granted, after the introduction of the Mosaic Law, to the nearest in blood to the person killed.
This interpretation is justified by the authority of Abraham, who, with a perfect knowledge of the law given to Noah, took arms against the four Kings, fully persuaded that he was doing nothing in violation of that law. In the same manner Moses ordered the people to fight against Amalekites, who attacked them; following in this case the dictates of nature, for he appears to have had no special communication with God. Exod. xvii. 9.39 Besides, we find that capital punishments were inflicted upon other criminals, as well as murderers, not only among the Gentiles, but among those who had been impressed with the most pious rules and opinions, even the Patriarchs themselves. Gen. xxxviii. 24.
Indeed upon comparing the divine will with the light of nature, it was concluded, that it seemed conformable to justice, that other crimes of great enormity should be subject to the same punishment as that of murder. For there are some rights, such as those of reputation, chastity, conjugal fidelity, submission of subjects to their princes, all of which are esteemed of equal value with life itself, because on the preservation of these the peace and comfort of life depend. The violation of any of those rights is little less than murder itself.
Here may be applied the old tradition found among the Jews, that there were many laws, which were not ALL mentioned by Moses, given by God to the sons of Noah; as it was sufficient for his purpose, that they should afterwards be comprehended in the peculiar laws of the Hebrews.
Thus it appears from xviii. chap. of Leviticus, that there was an ancient law against incestuous marriages, though not mentioned by Moses in its proper place. Now among the commandments given by God to the children of Noah, it is said, that death was expressly declared to be the punishment not only for murder, but for adultery, incest, and robbery, which is confirmed by the words of Job xxxi. 11. The law of Moses too, for the sanction of capital punishments, gives reasons which operate no less with other nations, than with the Jewish people. Levit. xviii. 25–30. Psa. ci. 5. Prov. xx. 8. And particularly respecting murder it is said, the land cannot be cleansed unless the blood of the murderer be shed. Numb. xxv. 31–33.
Besides, it were absurd to suppose that the Jewish people were indulged with the privilege of maintaining the public safety, and that of individuals by capital punishments, and asserting their rights by war, and that other kings and nations were not allowed the same powers. Nor do we find that those kings or nations were forewarned by the Prophets, that the use of capital punishments, and that all wars, were condemned by God in the same manner as they were admonished of all other sins. On the other hand, can any one doubt, as the law of Moses bore such an express image of the divine will respecting criminal justice, whether other nations would40 not have acted wisely in adopting it for their example? It is certain that the Greeks, and the Athenians in particular did so. From hence came the close resemblance which the Jewish bore to the old Athenian law, and to that of the twelve tables of Rome. Enough has been said, to shew that the law given to Noah cannot bear the interpretation of those, who derive from it their arguments against the lawfulness of all war.
The arguments against the lawfulness of war, drawn from the Gospel, are more specious. In examining which it will not be necessary to assume, as many do, that the Gospel contains nothing more than the law of nature, except the rules of faith and the Sacraments: an assumption, which in its general acceptation is by no means true.
Nothing inconsistent with natural justice is enjoined in the gospel, yet it can never be allowed, that the laws of Christ do not impose duties upon us, above those required by the law of nature.
Those, who think otherwise, strain their arguments to prove that many practices forbidden by the gospel, as concubinage, divorce, polygamy, were made offences by the law of nature. The light of nature might point out the HONOUR of abstaining from such practices, but the SINFULNESS of them could not have been discovered without a revelation of the will of God.
Who for instance would say, that the Christian precept of laying down our lives for others was an obligation of the law of nature? 1 John iii. 16.
Justin the Martyr says that to live according to the bare law of nature is not the character of a true believer. Neither can we follow those, who, adopting another meaning of no inconsiderable import, construe the precept delivered by Christ in his sermon on the mount, into nothing more than an interpretation of the Mosaic Law.
For the words, “you have heard it was said to them of old, but I say to YOU,” which are so often repeated, imply something else. Those of old were no other than contemporaries of Moses: for what is there repeated as said to those of OLD are not the words of the teachers of the law, but of Moses, either LITERALLY, or in THEIR meaning.
They are cited by our Saviour as his express words, not as interpretations of them: “Thou shalt not kill,” Exod. xx. whoever killeth shall be in danger of Judgment, Levit. xxi. 21. Numb. xxxv. 16, 17, 30. “Thou shalt not commit adultery,” Exod. xx. “whosoever shall put away his wife, let him41 give her a writing of divorcement.” Deut. xxiv, 1. “Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths.” Exod. xx. 7. Numb. xxx. 2.
“An eye for an eye, and a tooth for a tooth,” may be demanded in justice. Levit. xxxiv. 20. Deut. xix. 21. “Thou shalt love thy neighbour,” that is, an Israelite. Levit. xix. 18. “and thou shalt hate thine enemy,” that is, any one of the seven nations to whom friendship or compassion was forbidden to be shewn. Exod. xxxiv. 11. Deut. vii. 1. To these may be added the Amalekites, with whom the Israelites were commanded to maintain irreconcileable war. Exod. xxvii. 19. Deut. xxv. 19.
But to understand the words of our Saviour, we must observe that the law of Moses is taken in a double sense, either as containing some principles in common with human laws, such as imposing restraint upon human crimes by the dread of exemplary punishments. Heb. ii. 2. And in this manner maintaining civil society among the Jewish people: for which reason it is called, Heb. vii. 16, the law of a carnal commandment, and Rom. iii. 17. the law of works: or it may be taken in another sense, comprehending the peculiar sanctions of a divine law, requiring purity of mind, and certain actions, which might be omitted without temporal punishments. In this sense it is called a spiritual law, giving life to the soul.
The teachers of the law, and the Pharisees considering the first part as sufficient, neglected to instruct the people in the second and more important branch, deeming it superfluous. The truth of this may be proved, not only from our own writings, but from Josephus also, and the Jewish Rabbis. Respecting this second part we may observe, that the virtues which are required of Christians, are either recommended or enjoined to the Hebrews, but not enjoined in the same degree and extent as to Christians.
In both these senses Christ opposes his own precepts to the old law.
These observations apply not only to the question immediately in hand, but to many others; that we may not rest upon the authority of the Mosaic law farther than is right.