two rules which are connected with the Fourth and Fifth Rules, and which serve to confirm, in the first instance, the authority of legislators, and in the second instance, the authority of judges. I refer to the following precepts: first, What the magistrate has indicated to be his will, that is law in regard to the whole body of citizens; and secondly, What the magistrate has indicated to be his will, that is law in regard to the citizens as individuals.a
The Secondary law of nations
Rule VIII
A supplementary observation should be introduced at this point, namely: that there exists a species of mixed law, compounded of the [primary] law of nations and municipal law, and designated in correct and precise terminology as “the secondary law of nations.”b For just as the common good of private persons gave rise to the precepts above set forth, so also, owing to the existence of a common good of an international nature, the various peoples who had established states for themselves entered into agreements concerning that international good. From this circumstance another rule arose, a rule modelled on the fourth, which in turn had derived its basic principle from the second and third and, consequently, from the first. According to this Eighth Rule, Whatever all states have indicated to be their will, that is law in regard to all of them.
As illustrations of this precept, one might mention the inviolability of ambassadorsc (to whom all peoples organized in the form of a state accord equal sanctity), various matters relating to the burial of the deadd and other institutions of a similar kind. [12′ a]
New explanation
Such institutions, indeed, are divided into two classes. For some have the force of an international pact, as in the cases just mentioned; others lack that force, and these I should prefer to classify under the head of accepted custom rather than under the head of law.
Nevertheless, even these consuetudinary institutions are frequently described as forming a part of the [secondary] law of nations. This occurs, for example, in connexion with the provisions relative to servitude, to certain kinds of contract, and to order of succession, provisions which have been adopted in identical form—either imitatively or as a coincidence—by all or at least by a majority of nations, in accordance with their separate and individual interests. It is permissible for individual states to renounce such institutions, because of the very fact that the latter were established not by common [international] agreement but by the respective states, acting singly; just as, in the case of a given political community, not everything customary among the majority of persons will forthwith constitute law, but only that which concerns the mutual relations of the citizens. For there are many customary practices of a private rather than a public character (such as the vast number of customs recorded in the compilations of antiquarians, connected with clothing, banquets, or funerals) which the head of any household is free to discard at will even though they have been generally accepted.
Law XII
Among the other precepts of the law of nations—those binding upon the various peoples as if by force of contract—the most important [12′] is the one which resembles the first precept of municipal law [Law IX], and which may be worded thus: Neither the state nor any citizen thereof shall seek to enforce his own right against another state or its citizen, [13] save by judicial procedure. The necessity for this precept is indeed self-evident, and can be deduced from the observations already set forth.
New explanation
But a new difficulty presents itself at this point, one which did not appear in connexion with municipal law. For citizens ὑποτάσσονται [are subject] to their respective states, and therefore, both in disputes with one another and in disputes with the state, they rightly submit to the judgement of the latter; whereas one state [οὐχ] ὑποτάσσεται, but rather, ἀντιτάσσεται—that is to say, it is not in subjection but in contraposition—to another state, and citizens of the one are likewise contraposed to citizens of the other. While it was readily agreed, of course, that the judicial function should be exercised by a state, there was a possibility of disagreement as to which of two states should be the one to discharge this function; for each of them, indeed, could refer to those famous lines:a
δίκαιοι δ’ ἐσμὲν οἰκου̑ντες πόλιν
αὐτοὶ καθ’ αὑτοὺς κυρίας κραίνειν δίκας.
All we who dwell within these city walls, Have power to execute our courts’ decrees.
Truly, there is no greater sovereign power set over the power of the state and superior to it, since the state is a self-sufficient aggregation. Nor was it possible for all of the nations not involved in a dispute to reach an agreement providing for an inquiry by them into the case of each disputant.
Rule IX
Thus it was necessary to settle any controversy of this kind by resorting to some distinction, such as that incorporated in the following rule: In regard to judicial procedure, precedence shall be given to the state which is the defendant, or whose citizen is the defendant; but if the said state proves remiss in the discharge of its judicial duty, then that state shall be the judge, which is itself the plaintiff, or whose citizen is the plaintiff. As a matter of fact, such disputes could not have been settled in any other way. For two parties—the plaintiff and the defendant—are involved in every lawsuit, and in the situation which we are discussing it was absolutely necessary that the state representing one of the parties should be given the role of judge; so that the most suitable procedure consisted in bringing the case first of all before the state which could most easily execute the judgement, in other words, the state said to be in possession of the surplus whose seizure would result in an equitable distribution of the whole. Treaties between friendly nations, too, are usually drawn up in accordance with this principle. For example, in the treaty between the Gauls and Hannibal, it was provided that, if the Gauls accused a Carthaginian, the case should be tried by the Carthaginians; whereas, if [13′] the latter accused a Gaul, then Gallic womenb (for in Gaul the female sex enjoyed great authority, even in public affairs) should adjudicate the dispute. Reasoning in the same manner, Demophoon replied to Eurystheus, King Tatius to the Laurentines, the Athenian people to Alexander, and others on a great many occasions to yet other parties, when they were ordered to hand over certain fellow countrymen for punishment, that they themselves would administer the punishment in accordance with justice and the laws, if anyone should bring forward an accusation.
On the other hand, if a state stubbornly defends an injury inflicted by its citizens or (as more frequently happens) by itself,a and if it neither confesses that the injury has been committed nor makes amends therefor, then, to be sure, the conduct of the trial passes by the aforesaid natural law to the other party, namely, the state that has complained of injury suffered either by itself or by one of its citizens. Accordingly, in cases of this kind, the mere passing of judgement in any form whatsoever will not suffice, as it does when a judge lays down the law within a single state. For it is not as the result of a compact that one state has power over another, but rather by the force of nature, which allows every individual to seek his own right. Therefore, the existence of such a right is a preliminary requisite. This is the significance of the universally accepted doctrineb that one state is made subject to another by transgressing. For whosoever wages war justly must become to that extent the judge of his adversary, or (as Platoc has said), σωφρονιστής, “censor and chastiser” of the latter, turning back of necessity to the system in force under the law of nature, which permitted each individual to be the judge of his own cause.
Up to this point, we have been discussing laws that accord with established usage.
Law
