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 law, nations also originally use none other than natural law; therefore the law of nations is originally nothing except the law of nature applied to nations.
Chapter 4, part 8, Jus Nat.
The only law given to men by nature is natural law. This then can be changed by the act of men voluntarily, by agreement between individuals, so far as concerns those things which belong to permissive law, and so far as concerns the performance of those actions that are required by the principles of humanity; it can be changed in the state by force of the legislative power, as we have shown in our natural theory of the civil laws. In like manner the only law given to nations by nature is natural law, or the law of nature itself applied to nations. This then can be changed by the act of nations voluntarily, so far as concerns those things which belong to permissive law, and so far as concerns the performance of those actions that are required by the principles of humanity, as we shall see in the following discussion. But far be it from you to think that therefore there is no need of our discussing in detail the law of nations. For the principles of the law of nature are one thing, but the application of them to nations another, and this application produces a certain diversity in the law of nations, which is inferred from the fact that the nature of a nation is not the same as human nature. For example, man is bound to preserve himself by nature, every nation by the agreement through which it is made a definite moral person. But there is one method of preservation required for man, another for a nation. Likewise the right of defending one’s self against the injuries of others belongs to man by nature, and the law of nature itself assigns it to a nation. But the method of one human being’s defence against another is not, of course, the same as the proper method of defence for nations. There will be no difficulty in this for those who have understood the force of the fundamental principle of reduction, which is of especial importance in the art of logic. And if any mists still obscure the minds of some, the following discussion will dispel them. Therefore we are not embarrassed by the objections of those who argue that the law of nations ought not to
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be distinguished from the law of nature, and that the law of nations ought to be presented as nothing other than the law of nature. So far as we are concerned, each may indulge his own belief. With none shall we start a dispute. For us it is sufficient to have explained those things which seem to us to be in harmony with the truth.
§ 4. Definition of the necessary law of nations
We call that the necessary law of nations which consists in the law of nature applied to nations. It is even called by Grotius and his successors, the internal law of nations, since it evidently binds nations in conscience. It is likewise called by some the natural law of nations.
Of course, the necessary law of nations contains those things which the law of nature prescribes to nations, which, just as it regulates all acts of men, so likewise governs the acts of nations as such.
§ 5. Of the immutability of this law
§ 4.
§142, part 1, Phil. Pract. Univ.
Since the necessary law of nations consists in the law of nature applied to nations, furthermore as the law of nature is immutable, the necessary law