not, as Grotius thought, to be determined from the acts of nations, as though from their acts their general consent is to be assumed, but from the purpose of that supreme state which nature herself established, just as she established society among all men, so that nations are bound to agree to that law, and it is not left to their whim as to whether they should prefer to agree or not. Those are not lacking who, when they condemn the voluntary law of nations, speak of it as natural law, so that they seem to disagree only in words, but agree in fact; nevertheless if you wish to examine the matter more carefully, you could not deny that the obligation which comes from natural law is not in the least diminished by the voluntary law, although this gives immunity of action among men and permits those things to be tolerated which could not be avoided without greater evil, consequently it is undoubtedly necessary that natural law must be distinguished from voluntary law, by whatever names indeed you may have preferred to call these different laws. We prefer the custom of not changing terms once introduced into science except for urgent necessity, but the concepts corresponding to them, as there may have been need, are to be so limited and corrected, that they may correspond to the truth. For it seems too childish, with the arrogance of a weak mind, to change terms or their signification, and on this account to claim the reputation of a discoverer with those among whom even the one-eyed is king. That most perfect law of nature constantly retains its force, so that we should do right, and should not wish to do the things which can be done with impunity, unless they are also right, and thus there may arise a consciousness of duty done as a reward, inasmuch as that is a great part of happiness, and as good deeds produce a true and great reputation, delight in which is also to be attributed to this genuine happiness. But just as individuals can acquire rights by stipulations and contract obligations through them; so also nations can acquire rights from nations, by stipulations and contract obligations through them. This is appropriately called the stipulative law of nations, and it gets its validity from natural law, which commands that agreements should be observed. Moreover,
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natural law enjoins that agreements should be made with a sense of obligation, although the voluntary law does not base their validity upon the same considerations, and there may be a violation of natural law without a penalty and that is to be endured. It is self-evident that stipulative law is only a particular law of nations, which is not valid except between those nations which have contracted. It has been decided before that there can be a tacit no less than an express agreement, and by nature there are certain tacit provisions in every express agreement, since the law of nature makes no distinction between contracts bona fide and stricti juris.1 On these tacit agreements are based those provisions which have been introduced by custom among nations, and which, as we have said, constitute the customary law of nations. This is similar to the stipulative law, therefore it holds good only between nations which have made those customs their own by long observance. But although the characteristics which belong to this law are carelessly referred to the common law of nations, nevertheless the great number of erring nations does not provide a defence for this error, so that it could be referred either to the natural or the voluntary law. We do not follow the mass of jurists, who decide concerning a fact before the reasons have been considered as to why it must be so decided, and then that they may protect their preconceived opinion, they finally seek out reasons as to why they should so decide. We admit as true only what is inferred as a necessary consequence from previous conclusions, but we do not invent doubtful principles, so as to deceive those endowed with a weak intellect, to whom it is not permitted to see very far ahead. The method by which we have determined to present the law of nature and nations and which we use in our philosophy, does not admit of these devices; it requires truth without colouring and childish deceit. Therefore in the present work also we have so presented the law of nations, that what is natural may be separated from that which is voluntary but common to all nations, what is customary from either, what finally is stipulative from all the rest, and that by a careful reader those things may be easily distinguished which come from different
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sources. But as it is human to err, so it will not seem wonderful that nations, even the most learned and civilized, have erroneously considered those things the law of nature which are diametrically opposed to it, and that perverse customs have arisen therefrom, by which right has been transformed to reckless licence, which we do not in the least confuse with the voluntary law of nations, but refer to an unjust customary law of nations, by which the most sacred name of law is defiled. And in that we part company with Grotius. In his age, “system” was an unknown term, which is subject to abuse even in our own times, and he can be easily excused for uniting the voluntary and customary law of nations into one, and failing to distinguish good customs from bad in the latter. But it is to the advantage of the human race that things so different should not be confused with one another, since nations and their rulers would become the authors of disaster and troubles, if a sense of duty should be divorced from the exercise of a right, and right transformed into reckless licence. In fact it is rather to be desired than hoped for, that nations should be brought back to the straight road from the by-paths into which they have strayed too far; nevertheless on this account a knowledge of the truth is not to be considered absolutely useless. For in order that we may not be unjust to the Supreme Being, it is fitting that we understand the source of evils, and that we should not be so hopeless of the human race, as to believe that there may never be any one who would be unwilling to put his hands into the keeping of truth. May God bring it about that the times may come in which, if not all, at least very many rulers of nations may recognize what they owe to their own nation and to other nations.
Halle, April 9, 1749.
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§ 1. Definition of the Law of Nations
By the Law of Nations we understand the science of that law which nations or peoples use in their relations with each other and of the obligations corresponding thereto.
§ 23, part 1, Jus Nat.1
§ 25, part 1, Jus Nat.
We propose to show, of course, how nations as such ought to determine their actions, and consequently to what each nation is bound, both to itself and to other nations, and what laws of nations arise therefrom, both as to itself and as to other nations. For laws arise from passive obligation, so that, if there were no obligation, neither would there be any law.
§ 2. How nations are to be regarded
§ 5, part 8, Jus Nat.
§ 54, part 8, Jus Nat.
Nations are regarded as individual free persons living in a state of nature. For they consist of a multitude of people united into a state. Therefore since states are regarded as individual free persons living in a state of nature, nations also must be regarded in relation to each other as individual free persons living in a state of nature.
Here, of course, we are looking at nations as they are at their beginning, before one has bound itself to another by definite promises restricting the civil liberty which belongs to a people, or has been subjected, either by its own act or that of another, to some other nation. For that the liberty of nations, which originally belongs to them, can be taken away or diminished, will be evident from proof later.
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§ 3. Of what sort the law of nations is originally
§ 2.
§ 125, part 1, Jus Nat.
Since nations are regarded as individual persons living in a state of nature, moreover, as men in a state of nature use nothing except natural
