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 of Corollary
All of the theologians and juristsc agree, however, in accepting this principle: In so far as subjects are concerned, a war can be just for both parties: always provided, of course, that the war be preceded by a command against which reason does not rebel after the probabilities have been weighed. [36′]
Concerning the Forms to Be Followed in Undertaking and Waging War
Article I. What constitutes just form in undertaking a private war?
Article II. What constitutes just form in undertaking a public war?
Article IV. What constitutes just form in waging a war, in so far as subjects are concerned?
Corollary I. To what extent is aggressive action permissible against enemy subjects?
The forms and modes of warfare, too, must be considered in one light with reference to voluntary agents, and in a different light with reference to subjects. Furthermore, just as in most matters there is one form for an inchoate stage, and another form for a permanent condition, even so there is one mode of voluntarily undertaking a war while there is another mode of carrying it on voluntarily.
Now, form (according to the ancient philosophers)a consists in what may be described as a certain orderly arrangement; and therefore, a just form is an orderly arrangement concordant with law, or in other words, a kind of internal harmony among the various laws. This harmonious blend (so to speak) is governed by the Thirteenth Law, [which requires the observance of the different laws in the order of their importance]. As we have already stated, however, war is a process of execution, and only the Ninth and Twelfth Laws, [relative to respect for judicial procedure in the private and public execution of rights,] are pertinent to the proper initiation of this process.
First of all, let us consider those wars which are undertaken by private individuals. Here we are at once confronted with a rather grave difficulty. For a private war cannot possibly be preceded by a judicial process, since the power of judgement resides in the state and the war would cease to be private as soon as the state interposed its authority.b How, then, can a private war be just in its external form, when the Ninth and Twelfth Laws call for judicial procedure as a preliminary requisite?
Even with respect to private individuals, this requirement is confirmed by the authority of sages and of civil law. For no one is [37] given power to set armed forces in motion when the ruler has not been consulted.c Such conduct, indeed, would constitute not a just war but private robbery.d Consequently, he who wages war or holds a levy or makes ready an army independently of any command to that effect from the people or the prince, is punishable under the Julian law of high treason.e Moreover, why are guards stationed in public places, why have prohibitions and warnings against offensive action been incorporated in the laws, if not with the purpose of precluding any excuse for private defence?f In so far as [unauthorized] defence of one’s own property is concerned, we know that a precept has been established to the following effect: if the owner of a piece of property shall have forcibly seized possession thereof prior to the rendering of a judicial decision, possession shall be restored [to the party from whom the property was seized] and the [original] title to ownership shall be lost.a Similarly, with reference to debts, violence is said to be employed whenever any person reclaims otherwise than through a judge that which he believes to be his due; and it is also maintained that the legal right of the creditor is lost when the latter has declared the law for himself.b In the case of crimes, the matter is even clearer: μὴ ἑαυτοὺς ἐκδικου̑ντες, “avenge not yourselves,” says the Apostle Paul.c And Senecad observes: “‘Vengeance’ is an inhuman word, yet it is accepted as having a just connotation; nor does it differ greatly from ‘violence,’1 save in degree. He who returns an injury merely sins more pardonably.” This same point is borne out in the other pronouncements against violence, made by the philosopherse and by Christian writers.f Thus Quintiliang says: “Requital of injury is inimical not only to law
