First of all, then, we must examine the matter from the standpoint of law, thus establishing a basis, so to speak, for the treatment of the other questions to be considered.
Method
The ordered plan of nature to which I referred above has a very important bearing upon this phase of the discussion. For, in my opinion, it would be a waste of effort to pass judgement regarding acts whose scope is international rather than domestic—acts committed, moreover, under conditions not of peace but of war—solely on the basis of written laws. That Dioa who is called “the golden-tongued” by [4′] virtue of his eloquence, puts the point very neatly, when he says: τω̑ν μὲν ἐγγράφων οὐδὲν ἐν τοι̑ς πολεμίοις ἰσχύει· τά τε ἔθη φυλάττεται παρὰ πα̑σι, κἂν εἰς ἐσχάτην ἔχθραν προἑλθωσι. “To be sure, nothing written is valid between enemies; but customs are observed by all, even when the extreme of hatred has been reached.” In the passage just quoted, the term “customs” is equivalent to Cicero’sb concept in the phrase, “not written law, but the law sprung from Nature,” and to that expressed in the words of Sophocles,c ἄγραπτα κἀσφαλη̑ θεω̑ν νόμιμα, “not those written laws, indeed, but the immutable laws of Heaven.” Yet again, Lactantiusd goes so far as to censure the philosophers because in their discussion of military duties they take as their criterion, not true justice, but civic life and custom. If those persons [who base their judgement on written laws] do not read the works of the authors above cited, they ought at least to pay heed to their own Baldus,e who has wisely ruled that in any controversy arising between claimants of sovereign power the sole judge is natural reason, the arbiter of good and evil. Other quite learned authoritiesf uphold this same doctrine. Nor does it differ greatly from the popular maxim that he who seeks for a statutory law where natural reason suffices, is lacking in intelligence. Therefore, it is from some source other than the Corpus of Roman laws that one must seek to derive that pre-eminent science which is embodied, according to Cicero,g in the treaties, pacts, and agreements of peoples, kings, and foreign tribes, or—to put it briefly—in every law of war and peace.
Considerably better and more dependable is the method chosen by those who prefer to have such questions decided on the basis of Holy Writ, except that the persons employing this method frequently cite simple historical accounts or the civil law of the Hebrews in the place of divine law. For the materials collected indiscriminately from the annals of all nations, while they are extremely valuable in elucidating the question, have little or no value in providing a solution, since as a general rule the wrong course is the one more often followed [in the instances recorded in those annals] [5].
The true way, then, has been prepared for us by those juristsa of antiquity whose names we revere, and who repeatedly refer the art of civil government back to the very fount of nature. This is the course indicated also in the works of Cicero.b For he declares that the science of law must be derived, not from the Praetor’s edict (the method adopted by the majority in Cicero’s day), nor yet from the Twelve Tables (the method of his predecessors), but from the inmost heart of philosophy.
Accordingly, we must concern ourselves primarily with the establishment of this natural derivation. Nevertheless, it will be of no slight value as a confirmation of our belief, if the conviction already formed by us on the basis of natural reason is sanctioned by divine authority, or if we find that this same conviction was approved in earlier times by men of wisdom and by nations of the highest repute.
Order
For the rest, it is expedient for our purposes to order the discussion as follows: first, let us see what is true universally and as a general proposition; then, let us gradually narrow this generalization, adapting it to the special nature of the case under consideration. Just as the mathematicians customarily prefix to any concrete demonstration a preliminary statement of certain broad axioms on which all persons are easily agreed, in order that there may be some fixed point from which to trace the proof of what follows, so shall we point out certain rules and laws of the most general nature, presenting them as preliminary assumptions which need to be recalled rather than learned for the first time, with the purpose of laying a foundation upon which our other conclusions may safely rest.
In this connexion I must crave indulgence for the novelty and also, perhaps, for the prolixity of my work. Accordingly, I ask the reader to be patient and to accept on faith for the moment my assurance as to what the event will later confirm, namely: that the accuracy of the arguments to be derived from our premisses will compensate for any tedium caused by this preliminary matter, which will be regarded by many critics as already sufficiently familiar and by everyone as too repetitious in its presentation. Moreover, I can quite truthfully assert that certain problems bound up with the law of war and hitherto exceedingly confused, are susceptible of explanation and solution (even though they will not all be expressly mentioned in this treatise) on the basis of the said premisses and by the very method of demonstration herein employed.
Here follow the dogmas relating to the law of prize and booty.
Prolegomena, Including Nine Rules and Thirteen Laws 1
Rule I
Where should we begin, if not at the very beginning? Accordingly, let us give first place and pre-eminent authority to the following rule: What God has shown to be His Will, that is law. This axiom points directly [5′] to the cause of law, and is rightly laid down as a primary principle.a
It would seem, indeed, that the very term ius [law] is derived from Iovis [ Jove] and that the same process of derivation holds good for iurare [to swear] and iusiurandum [an oath] or Iovisiurandum [an oath in the name of Jove]. Alternatively, one might trace the development of these terms to the fact that the ancients designated as iusab—that is to say iussa [things commanded]—those precepts which we designate as iura [laws]. In any case, the act of commanding is a function of power, and primary power over all things pertains to God, in the sense that power over his own handiwork pertains to the artificer and power over inferiors, to their superiors.
Ausoniusc has declared that, “Law is the unerring mind of God.” This was the sentiment that inspired Orpheus—and after him, all the old poetsa—to say that Themis and Diké [Right and Justice] were the judicial assessors of Jove; whence Anarchus has correctly inferred (even though he does put the conclusion to an improper use) that a given thing is just because God wills it, rather than that God wills the thing because it is just. According to the somewhat more subtle contention of Plutarch,b however, the goddesses Right and Justice are not so much the assessors of Jove, as Jove himself is Right and Justice, and the most ancient and perfect of all laws. It is the latter view that Chrysippus also adoptsc when he asserts that Jove is the name given to “that force inherent in the constant and eternal law, which guides our lives, so to speak, and instructs us in our duties.”
The law of nature
The Will of God is revealed, not only through oracles and supernatural portents, but above all in the very design of the Creator; for it is from this last source that the law of nature is derived.d Thus Ciceroe very wisely maintains that the study of celestial phenomena is beneficial in relation to justice, as well as in other ways, because the student “becomes acquainted with the will, plan and purpose of the Supreme Ruler and Lord, to whose nature (so say the philosophers)