On the Office of Man and Citizens Under the Natural Law
In the history of international law two tendencies have struggled with one another for centuries and if it occasionally appeared as if one or the other were vanquished and stricken to the ground, it was not very long before it gave forth again powerful signs of life.1 The one dominating during the nineteenth century in general is the positivistic.2 It takes as its sole point of departure the law created by custom and conventions, consequently objectively produced. Its dangers lie in the fact that it often neglects to elaborate leading principles from the fullness of legal material available in international life, but still more in the denial of critical judgment in relation to the existing legal conditions and institutions.
When new circumstances arise, the world employs new norms. It is the task of scholarship in this case to bear in advance the torch for the development of law. But whence does the scholar receive the light wherewith to enkindle this torch, if he occupies himself only with the material of positive law, which perhaps long since has ceased to be the “just law” which the nations need? In such circumstances particularly the other tendency of the science of international law, that of the natural law, regains increased meaning. It seeks to develop the law philosophically out of the idea of justice and the necessities of the nations. For centuries, in regard to the legal principles developed by it, it has laid claim to immediate validity.3
Both tendencies of international law go back to their old master, Hugo Grotius. Not without reason is one accustomed to designate Grotius as the father of natural law, though one ought not overlook the role which has already been played with regard to this idea by the
1 Cf. A. Rivier, Literafhistorische Uebersicht der Systeme und Theorien des Vblkerrechts sett Grotius, in Franz von Holtzendorff, Handbuch des Voikerrechts, vol. i (Berlin, 1885), pp. 393-523. The same work forms the fourth part in Holtzendorff-Rivier, Introduction au Droit des Gens, which appeared in French (Hambourg, 1888-1889).
2 Certainly the natural law “outsiders” are not among the worst representatives of the entire group. Only three of them need be mentioned here from the century in question. Professor James Lorimer of Edinburgh, for example, says, in his The Institutes oj the Law of Nations (1883-1884, also published in French translation by Ernest Nys in 1884), vol. i, p. 19: “The law of nations is the law of nature, realised in the relations of separate political communities.” J. K. Bluntschli, in his famous work, Das moderne Vblkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (Nordlingen, 1868), by no means gives merely positive law, and the Frenchman Bonfils in his oft-printed manual under No. 40 treats the natural law of nations as valid law.
3 Cf. especially the comprehensive work of Erich Cassirer, Naturreckt und Volkerrecht im Lichte der Geschichte und der systematischen Philosophie (Berlin, 1919).
Church fathers and the theologians and jurists of the Middle Ages, since the Catholic Church can even today lay claim to the merit of having retained the idea of natural law through a purely positivistic and in many ways materialistic age up to the immediate present.4 The foundation of the science of natural law, which Hogo Grotius gives in the Prolegomena to his De jure belli ac pacis, forms also the foundation of his system of international law and, in a way which is charmingly naive to us today, he seeks to demonstrate the consensus gentium, instead of from the practice of States, frequently from the pronouncements of philosophers, historians, poets and thinkers. At any rate, he is the representative of a dualistic view, he does not fail to recognize the existence of a positive law of nations which in his time was prevailingly based on customary law and for this [law of nations] he coins the idea of the jus gentium voluntarium. What indeed may be the comparative value of the two branches of the theory of international law created by him, he concedes to positive law only the meaning of an argument corroboratory of the intrinsic correctness of the natural law.
While the Englishman Zouche (1590-1660),5 endowed with the practicalness of his nation, takes over from Grotius, it is true, the dualism between a natural and a positive law of nations, but very resolutely gives precedence to the latter, Thomas Hobbes indeed acknowledges no law of nations apart from natural law. Natural law is to him ‘‘vel naturale hominum, quod solum obtinuit dici lex naturae, vel naturale civitatum, quod dici potest lex gentium, vulgo autem jus gentium appellatur: praecepta utriusque eadem sunt.”6 While Hobbes indeed permits the law of nations to be completely absorbed by the natural law, he opens up a line of development of which the standard-bearer is Pufendorf, the author of three works treating of international law, one of which only shall occupy our attention.
The work of Samuel von Pufendorf, De officio hominis et civis prout ipsi praescribuntur lege naturali, was published for the first time in the year 1673 at Lund in Sweden. The author was in a certain sense representative of the international type of scholar, such as formerly was produced by the common use of Latin in the universities and as we
4 Cf. hereon the work of the German Jesuit, Victor Cathrein, Recht, Naturrecht und positives Recht (2cl ed., Freiburg, 1909).
5 Zouche, Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et helium inter diversos principes aut populos spectant, ex fraecipuis historico-jure-peritis exhibentur (Oxford, 1650), republished with English translation in the Classics of International Law (Washington, 1911).
6 Hobbes, Elementa philosophica de cive (Paris, 1642), “Impcrium”, c. xiv, § 4.
must now endeavor to produce for the benefit of the science of international law by the more difficult path of polyglottism of the individual. For as the famous Italian, Alberico Gentili, had closed his days as professor at Oxford, as Francisco Suarez taught now in Italy, now in Spain, to mention only these two most famous predecessors of Grotius, so also Pufendorf belonged to the number of those cast by fate hither and thither.
Born in 1632 in the village of Flohe near Chemnitz in Saxony, and active as a young man as a tutor in the home of the Swedish ambassador in Copenhagen, at 28 he had made such a name for himself by his Elementa jurisprudentiae universalis, which was published in 1660 at The Hague, that there was established for him in 1661 in the philosophical faculty of the University of Heidelberg, a chair of the law of nature and of nations, which he nine years later exchanged for the position of a professor primarius of law in the University at Lund founded by the Swedish king, Charles Gustavus. Established therefore in Sweden since 1670, he had not completed his days as professor at Lund before he soon took upon himself still other tasks.
As a matter of fact, he shared with his great predecessor, Grotius, versatility of genius. Though he, a clergyman’s son, first passed over to jurisprudence from theology, he did not therefore restrict himself to juristic interests, but was also a far-sighted student of political science. We need only recall in this respect his famous work, which he had produced in 1664 under the title, Severinus de Monzambano: De statu Imperii Germanici ad Laelium fratrem, dominum Trezolani, liber unus. Under the mask of a Veronese nobleman he here not only pronounces an annihilating criticism of the condition of public law in the Holy Roman Empire of the German nation, but also points the way to its regeneration which he discovers in the establishment of an army at the general expense, the secularization of the ecclesiastical principalities, the abolition of the cloister and the expulsion of the Jesuits. His reputation as a political scientist led in 1677 to his transference as state historiographer to Stockholm, from which place he was called in 1686 to Berlin by the Great Elector, to write the history of the rising Brandenburg state. For the characterizing of his personality and of his works in the sphere of pure jurisprudence these dates are no immaterial factors, since we see here an interesting contrast to the most prominent law professors of the most recent past, who have often only temporarily deserted the boundaries of their native state and have often considered occupation with problems of politics as scientific falling from grace.
The work, De officio hominis et civis prout ipsi praescribunter lege
naturali, of 1673 had been preceded in 1672 by the great work, De jure naturae et gentium libri octo, which appeared in 1674 in a considerably enlarged edition. Both books had a great popularity and linked the name of Pufendorf enduringly with the science of international law; to their propagation the French translation by Barbeyrac (1674-1744, member of the Berlin Academy, Professor in Lausanne and Groningen) had contributed much.7
The preface of the book contains important considerations which are not even contained in Pufendorfs large work De jure naturae et gentium. After the author had first referred to the technical purpose for which he published this compendium for the benefit of students, he distinguishes three sciences: The natural law common to all men, deriving its origin from reason alone; the civil law, which is valid only in the individual state; and moral theology, the dictates of which God has given to Christians in the Holy Scripture. The greatest difference between natural law and moral theology consists in the fact that natural law, rooted only in this life, will make man only for this life into a worthy member of human society, while moral theology trains the citizen of the heavenly city, who considers himself here on earth only as a sojourner or stranger. Therefore the precepts of natural law are directed to the external conduct of man, those of moral theology to the heart. Natural law has to do with man, as he actually is, since the fall; an animal subject, with a great number of evil impulses. A natural law for man in the state of innocence would have had another content. Natural law need not have commanded aid for the poor, assistance of the unfortunate, care for widows and orphans, pardon for wrongs, maintenance of peace, had there not been necessity and death, enmity and discord since the fall from grace.
The examination by Pufendorf of the duties of a man and citizen is divided into two books. The author follows a system the standard of
7 Barbeyrac based his translation of the work De oficio hominis et civis, dated in the preface at Berlin, March 1, 1707, upon the eleventh edition of the original, which was prepared in 1705 at Frankfort-am-Main by Professor Immanuel Weber of Giessen. The fifth edition of this translation was dated in the preface by the translator himself at Groningen on August 25, 1734. A further edition appeared in 1756 at Amsterdam and Leipzig after the translator’s death. The complete title runs: Les devoirs de Vhomme et du citoyeriy tels quHls sont prescrits par la loi naturelle, traduits du latin du Baron de Pufendorf, par Jean Barbeyrac. Nouvelle edition.
From a later date should also be mentioned a rather large edition in Latin, which appeared at Leyden in 1769 in two volumes totaling 1043 pages. It bears the title: S. Pufendorf ii de officio hominis et civis secundum legem naiuralem libri duo, cum observationibus Ev. Ottonis et Gotti. Gerh. Titii; cum supplementis et observationibus Gerschomi Carmichaelis, et annotationibus Gotti, Sam. Treneri.
which has been made in an interesting way the basis of the universal common law, the Code of Frederick the Great of 1794. The first book is devoted to the duties of the particular individual, the second rises from the individual to the larger spheres of life and considers the duties, which arise from membership in this community relationship, beginning with marriage, through the state to the association of states. Doubtless an ingenuous idea for the structure of a legal order exhausting all the relations of life. Through the whole there extends as the fundamental idea the ideal of social man, whose conduct is determined by the fact that man is not alone in the world and that his conduct must be conditioned by the necessities of community life.
a) Book I. In Chapters I and II the author speaks of human actions in general, their principles and their accountability, of the necessity of these actions to be subject to a rule, from which law arises, and of the righteousness and unrighteousness of a mode of action. In this connection the author distinguishes divine and human law according to the immediate authorship. All human law in his opinion is regularly positive, whether it be a natural law which undeniably is derived from the rational and social nature of man, so that without its consideration an honorable and peaceful society of men would be impossible, or only as positive law in a narrower sense of the word, rest upon the decision of a concrete lawgiver (cf. Chapter II, § 16).
The following Chapter III deals with natural law in general. The rules of conduct which must be followed to be a fit and useful member of human society are the leges naturales. The lex fundamentalis of natural law is the duty of every man, so far as in him lies, to strive that the welfare of human society in general be secured and maintained (§ 9). Universal sociability is the norm; all the other laws are merely corollaries. Reason is sufficient to discover these in our hearts.
The duties which result therefrom can be divided into the duties of man toward God (Chapter IV), toward himself (Chapter V), and toward other men (Chapter VI). The first absolute duty of an individual toward others is to do injury to no man and, where this might have happened, to make good the damage. The second duty in the relations of the individual to others, dealt with in Chapter VII, is the obligation to consider all others as by nature entitled to the same rights. The third general duty of the individual to his fellow-men is to promote as far as possible the advantage of others. This is treated in Chapter VIII of the book. Here the idealism of the author rises to particular heights. The dictum of Goethe: What thou hast from thy father inherited, earn it, in order to possess it,” or Article 153, paragraph 3, of
the new German Constitution of Weimar: “Property imposes obligations. Its use by its owner shall at the same time serve the public good,” is here indeed anticipated.
After the exposition of these absolute duties of the individual to his equals, the author, in the following nine chapters (Chapters IX-XVII, inclusive), proceeds to the conditional duties. These arise from engagements or agreements (Chapter IX), from the mere use of language (Chapter X), of oaths (Chapter XI), of acquisition of ownership (Chapter XII), and of bona fide ownerships (Chapter XIII); they relate to the price for an article or service (Chapter XIV), to contracts (Chapter XV), to the dissolution of obligations to which agreement has been made (Chapter XVI), and to the method of interpretation of agreements and laws (Chapter XVII). All these things, however, as stated, are treated only from the standpoint of the individual in his relation to other individuals or rather to society; of the state or even of the association of states we hear nothing.
b) Book II. In the second book of the work, as said above, the author no longer concerns himself solely with the particular individual, but with the larger spheres of life in which the individual is placed. In the first chapter, in open dependence upon Hobbes, he premises a reflection upon the status naturalis, wherein there was only a dependence upon God and society had not yet been constituted into a state, there is no true peace but at every instant everyone must be prepared for battle, conflicting parties may select arbiters for themselves indeed, but eventually everyone is still compelled in default of a public authority to maintain his own right himself. The first beginning in the formation of a civil society is marriage (Chapter II).
Chapter III deals with the remaining family law, so far as there is question of the mutual relations between parents and children; Chapter IV of the mutual obligations between a master and his servants and slaves. To those who know that, according to the Bavarian marriage law8 up to the year 1900 “moderate chastisements” were permitted to the husband even against his wife, it is not surprising that in this work of 1673 a similar right is conceded to the master against his servants. Of particular interest here, however, are the details concerning the treatment of slaves, as far as they pertain to international law. Pufendorf is still far from acknowledging Rousseau’s “To be a man is to be free.” Slavery, strangely enough, to this thinker of natural law, still passes as a natural institution, which he dares not impugn. And indeed he concludes therefrom that slaves can be made according to the law of war,9
8 The Codex Maximilianeus Bavaricus of 1756 was authoritative in Bavaria.
9 A conclusion to which indeed Hugo Grotxus also adhered, Cf. Book III, ch. vii and xiv.
although the slave must be treated *with consideration after the conclusion of the state of war, that is, one must give him what he needs for living and should not mistreat him without reason. Also bought slaves should be treated humanely.
It is only with the following Chapter V of the second book that we set foot upon the soil of public law proper. Pufendorf investigates the question why men have united together into large social groups of states. In keeping with Hobbes he denies the celebrated teaching of Aristotle of, man as a political being. He derives the foundation of the state rather from the fact that man loves himself and his own interests the most. Outside of social ties man is an animal longe miserrimum; in the political tie he finds according to his own perception the greatest possibility of satisfying his necessities and his desires. For proof Pufendorf, in his description of the natural state of man, gives a paraphrase of the famous phrase of his great predecessor, Hobbes, homo homini lupus. By nature, he thinks, no animal is fiercer and more untamed than man, none is prone to more vices which tend to menace others. For outside of his instinct of hunger and love, an insatiable desire dominates him of acquiring superfluous things and of inflicting upon others cruel wrongs. In the natural state man loves the independence to realize only his own interests. A good citizen, however, is he who promptly obeys the commands of his sovereign, strives with all his might for the common weal and prefers this unhesitatingly to his own interests, who considers nothing advantageous to himself except that which serves also the common good, and who shows himself accommodating to his fellow citizens. The true reason why the patriarchs united into the state is that they sought protection against the evils which threaten man from man. “Nisi judicia essent, unus alterum devoraret” (If there were no courts, one man would devour another). No other way would have had the same success as the foundation of states. Neither the mere existence of the natural law nor the fear of the deity would have been sufficient to check the malice of man, since “divine vengeance walks unfortunately with slow foot.”
In the following Chapter VI Pufendorf investigates the internal structure of states. Within an insignis multitudo hominum a consensus of the wills, which otherwise run apart in a thousand different ways, is produced when everyone subjects his will to that of a single person or of an established council. At the same time everyone places his powers at disposal to carry out the now authoritative will. Consequently Pufendorf professes here the doctrine of the origin of the state through contract, which dominates the entire age of natural law. If Pufendorf
in all these deductions moves in the main in the path of Hobbes, with whom “the theory of the social contract began its scientific career” (Jellinek),10 he continues to develop it nevertheless in an extremely interesting fashion, since he claims for the foundation of the state no less than two compacts and one decree, while Hobbes, to say the least, in his Leviathan (xviii), nine years after the work, De cive, protests against every contractual relationship between ruler and subject.
Pufendorf is much more democratic than Hobbes insofar as, after the first compact on the union of the future citizens together and after the decree on the form of government, he claims a second compact, which has absolutely a bilateral character. The possession of the newly created public power must bind themselves as a matter of fact to guard the public welfare and the public security, while the citizens must pledge their obedience. Only then does a true state exist. In this connection Pufendorf then takes up Hobbes’ definition11 of the state and, as the latter does, speaks of the state as a “moral person.” If the public power is exercised through a council, it is in keeping with its purpose that the majority decide. The citizens are originarii (descendants of the state’s founders) or adscititii (naturalized), both to be well distinguished from foreigners (peregrini).
With Chapter VII of the second part comes an investigation concerning the function of the supreme authority. In a systematic manner, of rare charm to us today, Pufendorf divides the public power in no less than seven functions (potestas legislatoria, poenas sumendi, judiciaria, belli pads ac foederuviy creandi magistratusy indicendi tributay constituendi doctores). That the right of the head of the state to appoint public teachers is here placed on a par with the potestas legislatoria and the power over war and peace, must be explained from that overrating of the author’s own position as such a professor publicus ordinarius, which has been peculiarly traditional to this calling through the centuries. So primitive and imperfect is the systematic arrangement of the public power in Pufendorf that he still follows Hobbes in the orthodox position that this power in the last analysis is indivisible.
In logical conclusion to his teaching on the public power in general, Pufendorf in the following Chapter VIII deals with the different forms of government. In keeping with the well-known doctrine of Aristotle, he also distinguishes three categories of regular forms of government: monarchy, aristocracy and democracy. He ascribes to monarchy a
10 Cf. hereon the explanatory remarks, which George Jellinek makes in his Allgemeine Stoats-
lehre (Berlin, 1914), chapter vii, on the doctrine of the justification of the state, conceding Hobbes
and the relation between his doctrine and Pufendorf *8.
11 Hobbes, De cive, chapter v, § 9. “ De cive, chapter vii, § 5.
superiority over the other possibilfties. Without distinction of the form of government, states can be unhealthy and corrupt through fault of man or fault of the state, for example, if the public institutions are not adapted to the genius of the people. Poorly functioning, unhealthy states pass over from monarchies, aristocracies and democracies, as Aristotle indeed teaches, to tyrannies, oligarchies and ochlocracies. Irregular states are those in which there is wanting that unity of the state’s will which properly constitutes the characteristic of statehood. As proof of the foregoing, reference is made to the Roman Empire over which the senatus populusque Romanus once ruled. But the erstwhile Severinus de Monzambano does not neglect to point out in this connection that the irregularity of statehood can also arise from the fact that the nobles of a kingdom are subordinate to the king only as inaequales foederati (inferior colleagues). At the end of this chapter Pufendorf distinguishes two categories of state union, which we today, in accordance with the criteria suggested by him, call Personalunion and Staatenbund.
The following Chapter IX deals with the characteristics of civil authority. This authority is, apart from the form of government, supreme; the imperium is, as Pufendorf says, not only a summum, but also a, “nemini mortalium obstrictum reddendas rationes” (not bound to render account to any human being). By this statement Pufendorf places himself in noteworthy opposition to the doctrine of the right of resistance of the monarchists which had reached its height especially in the seventeenth century.13 The supreme authority is superior to all laws; their force and duration in fact depend upon it. Only on moral grounds is the summus imperans wont to submit to his own laws. The sovereign authority is holy and inviolable. The spirit of absolutism appears before our eyes here in shocking candor, even for so highstanding a moral personality as Pufendorf unquestionably was. Citizens must endure all caprices and cruelties of their prince. They should submit to the most cruel injustices and the most dire misfortunes, never should they draw the sword, but always should see in the sovereign, the father of his country, however cruel he may be.
Pufendorf distinguishes further the absolute authority of the monarch from that limited by a lex fundamentalist But the absolute monarch must not alienate, divide or transfer his kingdom, if it is not a
13 Pufendorf thereby also departs from Grotius. Grotius indeed denies in principle the right of resistance, but at the same time he recognizes, for seven particular cases in so large and uncertain a number, that the application of these principles would give a much slighter and much more uncertain guaranty for the stability of the civil authority than that of the doctrine of some avowed champions of the right of resistance. Cf . hereon the interesting explanations in the excellent work of my deceased pupil, Kurt Wotzendorff, Staatsrecht und Volkerrecht (1916), pp. 247 ff.
patrimonial authority, but only if he is indebted to a free choice of the people for his crown. In the latter case he has more the position of a usufructuarius.14
Chapter X treats of the manner in which authority is acquired especially in a monarchical state. Though Pufendorf defends the proposition that every civil authority depends upon the consent of the subjects, he admits the possibility that one might seize the civil authority also in war by conquest. By a very artful construction he seeks to gloss over this contradiction. He speaks first only of the case of a just war, without considering that frequently unjust wars have led to conquests. Then he justifies the subjection of the vanquished by the fact that the victor does not need to spare the lives of the vanquished, but in addition he pretends also the consent of the vanquished who, because they furnished the cause of war, have consented as it were in advance to all the conditions which the victor might impose upon them. These discussions on the methods of acquiring authority are brought to a close by the precepts on the choice of monarchs, the interregnum and the inheritance of the crown.
In Chapter XI the author discusses the duty of the ruler. We rejoice to hear that if, as said above, the possessor of civil authority is exempt from all human and civil laws, still the character and the end of civil society as well as the tasks of civil authority impose upon him certain duties. Consequently there is drafted here a well-reasoned catechism of princely duties, nearly a generation before the noble Fenelon as tutor of the grandson of Louis XIV had sketched, in his work Les aventures de Telemaque, the ideal of an absolute ruler. The rule of conduct for rulers should be the idea: “Salus populi suprema lex esto.” To educate the citizens up to good morals, public education should be fostered, the pure doctrine of Christ should flourish in the state and in the public schools such teachings should be imparted as are in conformity with the ends of the state. Moreover, we also obtain an abundance of wise precepts concerning the spirit of the laws, which the ruler should establish, their execution, the punishment for their violation, the prevention of injuries of citizens against one another, the selection of officials, the measure of taxation, the maintenance and increase of the general prosperity and the prevention of factions. At the end of the chapter these precepts on the duties of the prince are extended also to international relations. The courage of citizens and their skill in arms must be fostered. Everything which belongs to defense against violence, fortified places, arms, soldiers and especially money, must be available at
14 Cf. Grotius, De jure belli ac pacis, Book I, chapter iii, § 11.
the proper time. Even in the case of a just origin of war, no one should be provoked to the extent of going to war, unless the opportunity is entirely propitious and the condition of the State is favorable thereto. Even in peace neighbors must be carefully watched and friendships and alliances contracted with prudence.
The following Chapter XII treats of civil laws in particular. These leges civiles ensure effectiveness for the leges naturales only when they are provided with penal sanction and when they ensure to the possessors of natural rights the protection of the authorities. At the same time they make definite the content of natural rights. The civil laws must be obeyed as long as they are not in open conflict with the ius divinum. This holds good also for the particular commands of the rulers. In the latter case it is well to distinguish whether it concerns the performance of an act of the ruler or an act on his own responsibility. Even an unjust war, which the ruler has declared, must be carried on by citizens, for here the responsibility and likewise the sin lies only with the ruler, but never should the citizen himself perform an act, which is in conflict with natural and divine law, even if he be commanded thereto, as for instance, as judge to condemn an innocent person to death. For no one can relieve the judge of his own responsibility.
With regard to Chapter XIII we confine ourselves to mentioning that it contains the natural law principles for criminal law, and pass over Chapter XIV also, which is concerned with the reputation of individuals in the State, the valor personalis (personal worth) and the right of the civil authority to dispose thereof. Pufendorf, in this connection, speaks also of questions of preeminence and precedence under princes and nations, but though these questions still played an important role in the practice of state life of his time,15 he does not stop with that, but is only content with the stipulation that a right to precedence can be acquired only by agreement or concession.
The following Chapter XV treats of the rights of the supreme authority over the property of citizens,16 and only with Chapter XVI do we come upon the soil of international law.17 Following the model of Grotius, Pufendorf writes above the discussion of this chapter: “De bello et pace”, consequently he puts the consideration of war first, in noteworthy contrast to the first sentence of his conclusions that according to the natural law peace is the normal condition, in fact this condition
15 Cf. Stieven, Europaisches Hof ceremonial (Leipzig, 1715).
16 Cf. Grotius, De jure belli ac pacis. Book I, chapter i, § 6; Book II, chapter xiv, § 7; Book II, chapter i, § 15; chapter xix, § 7.
17 For all the points raised in this chapter, compare the more detailed presentation in Pufedorf’s work De jure naturae et gentium libri octo, Book VIII, chapters vi and vii; furthermore Grotius, op, cit., Book I, chapter ii, § 3; Book II and Book III, passim.
distinguishes men from brutes. Yet at times he considers war not only permissible, but also necessary, when in no other way can our life and property be preserved and our lawful rights maintained. He also, in harmony with Grotlus, sees in war only a means to the prosecution of rights and he rises far above Machiavelli, who considers war as a lawful means for the prosecution of state interests. Lawful war can also be an offensive war, if it is carried on for the prosecution of reparations claims and for the attainment of indispensable guaranties; the latter formula is indeed of dangerous elasticity. As Homer in the Iliad relates of the heroes of Greece that before embarking on their campaign of vengeance against the rape of Helen they dispatched an embassy to demand atonement, so Pufendorf desires in a conflict of states first of all the attempt at a peaceful settlement, especially in case of doubt about the right or the fact or even adverse possession. Peaceful negotiations, arbitral tribunal, or lot appear to him as suitable means.18
Terror and open force are the means of war, use may be made of trickery and ruses and the enemy may be deceived with false reports and tales, but promises and agreements are to be kept. And humanity commands that no more mischief be inflicted upon the enemy than defense, the vindication of right and security for the future require.19 Pufendorf then distinguishes, according to the existence of a formal declaration of war, between bellum solemne and bellum minus solemne20 and treats of the right to enter into war which fundamentally belongs only to the head of the state, but this does not debar every governor of a province or commander of a fortified place from having the right and duty of defense.
Moreover, the question of delicts and accountability under international law, so to speak, is investigated, since Pufendorf raises the question whether the ruler of a state or the whole state can be attacked by war for acts which do not proceed from them. The reply to this question is wisely made dependent upon whether there is any responsibility on the part of the state, for example, if the ruler has suffered injuries to be done by his own citizens against those belonging to a foreign state. The power of the supreme authority to prevent an injury to another state is presumed, unless the contrary is proved. A duty to deliver up those belonging to a foreign state for punishment is in this connection recognized only so far as provided for by particular agreements.21 In
18 Cf. Grotius, op. cit., Book II, chapters xxiii and xxiv.
19 On this question compare Grotius, op. ciu. Book III, chapters xi-xvi.
20 Grotius, op. cit., Book III, chapter iii.
21 This corresponds to the practice of that time, but on this question compare also Grotius, op. cit., Book II, chapter xxi, § 4.
connection with the question of responsibility of the state, moreover, the right of reprisals is discussed, which, because of the debts of a state or of injuries inflicted by it, can be exercised against the property as well as the person of its citizens abroad.22
The following section of this chapter treats of wars of alliance. In addition to the supposition that the other state, on whose side one enters, has taken up arms for a just cause, it also supposes that a satisfactory reason to support it is present. The latter considerations naturally disappear if the point in question is the existence of a treaty of alliance. There is still to be examined whether the allies are not perhaps beginning an unjust or imprudent war, and even, if this question is to be answered in the negative, the interests of the ally must yield precedence to the possible needs of our own citizens. Even without an alliance relationship one can come to the assistance of his friends; indeed Pufendorf recognizes that the communis cognatio can be sufficient occasion for coming to the help of the unjustly oppressed at their request,23 since he has an intense appreciation of international solidarity.
The use of poison and the bribery of foreign citizens and soldiers to slay their own rulers are considered by the more civilized nations as dishonorable means of war.24 Following this the right to spoils is briefly treated. Of the fundamental unassailability of private property in war Pufendorf as yet knows nothing. Movable property is considered as acquired if it has been brought into safety from the enemy’s pursuit; immovable property, if the captor can drive away the enemy who desires to take it back again into his possession.25 But the right to recover it is only extinguished if the former owner has in the treaty of peace renounced all his rights. Spoils belong fundamentally to the state, not to the soldiers;26 movable property, however, especially such as is of small value, according to widespread usage is left to the soldiers. Immovable property, wrested back, reverts to the former owner;27 movable property forming part of the spoils, which has been wrested back, remains for the most part to the soldiers who have captured it.
As has already been stated by Pufendorf in another connection, victory also gives the right to authority over individuals as well as over whole peoples. But to make the supreme authority legitimate and to bind the consciences of the subjects, the vanquished must have given their word to the victors and the victors must have changed their hostile
22 Hereon see Grotius, op, cit., Book III, chapter ii.
23 Cf. Grotius, op. cit., Book II, chapter xxv.
24 Cf. Grotius, of. cit., Book III, chapter iv, § 18.
25 Grotius, op. cit.. Book III, chapter vi, §§ 2 ff.
26 Grotius, loc. cit., § 8.
27 Grotius, Book III, chapters ix and xvi.
attitude toward the vanquished, as if an extorted pledging of word could replace an actual consensus civium, upon which Pufendorfs entire theory of the state is erected! At the end of this chapter devoted to war Pufendorf treats of truces28 and peace treaties.29 A truce may extend to a complete laying down of arms, not only to a temporary cessation of their use; then it is as it were a temporary peace, while real peace is based upon perpetual duration. A so-called tacit truce is not a legal conception. Peace treaties must be faithfully observed.
Chapter XVII of the work also pertains to international law. Here the author treats of alliances and agreements between states.30 He divides them into the following two groups, those which cover duties already enjoined by the natural law and those which add something over and above the duties enjoined or at least give them greater precision. In the former class he enumerates all such obligations as follow from humanity, such as agreements for friendship, hospitality and trade. The second class he distinguishes further into foedera aequalia and inaequalia. In the latter he enumerates among others those which in their content create an inequality between the contracting states. They might include an encroachment upon sovereignty, for example, if one state promised another not to exercise definite rights of its governing authority without the permission of the state which has become the superior through such a treaty. Accordingly, Pufendorf would have rightly considered the Boer republic, Transvaal, as no longer a sovereign state on account of the agreement of August 3, 1883, by which Transvaal was required to submit its international agreements to London.
On the other hand, he rightly emphasizes that burdening conditions, which do not include a permanent subjection, but can be fulfilled by an act done once and for all, such, for example, as are imposed on the vanquished in peace treaties, do not diminish their sovereignty. However, under certain circumstances there may be question of duties of a lasting nature, which nevertheless are completely in harmony with the sovereignty of a state, as, for example, if the treaty obligation is imposed unilaterally not to establish fortifications in certain regions. Pufendorf considers league and commercial treaties as the most frequent, and those extending permanently to a confederation of several states, through which consequently a sort of league of nations is established, as the strictest and most intimate. Finally, Pufendorf distinguishes between foedera realia and foedera personalia.31 The latter
28 Grotxus, op, cit., Book III, chapter xxi, §§ 1-14.
29 Loc. cit., chapter xx.
30 Cf. Grotius, op, cit., Book II, chapter xv.
31 Op. cit., chapter xvi, S§ 7 aod 8.
expire with the death of the princes by whom they are concluded, while the former bind the state itself. To be carefully distinguished from foedera, though also in the same general category with them, are mere engagements (sponsiones) of the ministers, which are entered into without instruction from the sovereign and through which the latter is obligated only when he has ratified them.
The work of Pufendorf concludes with Chapter XVIII, “De officiis civium”. Here are sharply distinguished the general duties of citizens from such duties as depend upon a particular official relationship. The former have regard to the rulers of the state, the state in its entirety and individual fellow citizens. Corresponding to the more or less patriarchal spirit of the absolutist age, there is elaborated here a duty under natural law of citizens of a state toward the ruler of the state, to accommodate themselves in peace to the existing constitution and not to strive for innovations, “to admire and to revere” the head of their state and not only to speak but also to think kindly and respectfully of his actions. Besides, to be sure, there also exist, as said above, duties of citizens toward the state as a whole and toward fellow citizens. For the particular duties of those citizens who stand in closer relations to the state as functionaries, the moral proposition is laid down by way of premise that no one should seek, to say nothing of undertaking, an office, for the performance of which he must consider himself as unfit. For the rest, a special professional ethics is laid down for ministers, religious dignitaries, scholars and professors, administrators and judges, officers, soldiers, ambassadors and envoys, and superintendents and tax-collectors. The general duties of citizens cease with emigration, the legal deprivation of the right of citizenship and the necessity of submitting to the rule of a victor.
The value of Pufendorf’s work, De oficio hominis et civis, lies not in the manner in which the author deals with the individual questions of international law. Out of the eighteen chapters of the work, only two (Chapters XVI and XVII) deal with matters of international law in particular, consequently only a small portion of the whole. What is presented in these scanty discussions may be traced back entirely to Grotius. In spite of his democratic conception of the state, which bases the state not only upon one compact, but, as has been set forth above, requires a second compact with the ruler, a compact of bilateral character, which defines their rights and duties, he does not venture to apply this doctrine of the right of self-determination of the nation to
what concerns international law. He recognizes here as before the right of conquest, and deduces the tacit consensus of citizens, forced into subjection to the new sovereignty, from the cause of the war furnished by hem, with which they have accepted for themselves in advance the consequences of the war, as if the desire for war did not proceed solely from an aggressor greedy for conquest and the vanquished could not be altogether innocent of the war. An interesting demonstration how even the adherents of natural law, who ostensibly derive the law solely from reason, were inclined in practical questions to adapt their conclusions on law to the practice of their age! Pufendorfs conclusions, therefore, in the field of international law, so far as they are contained in this work, present no tangible contributions.
Nevertheless one should not underestimate the importance of his work. In the depth of his ethical thinking he places, as the title of his work indicates, the entire system of law under the stamp of the concept of duty. And this concept of duty is derived from the abstract ideal of sociability. His fundamental idea is the social man. From this postulate is derived in a somewhat grandiose manner the entire system of private and public law. The idea, “Thou art not alone here in the world,” affords the point of departure for all legal relations; it holds for mankind as for states. This deep, moral world-philosophy stands towering over all the doctrine harking back to the Hegelian deification of the individual state: “The social ideal is the victorious war.” For apart from the fact that the prudent knew, even before the World War, that modern war in our age of world commerce weakens the victors as well as the vanquished, the regulatory principle for state relations can be established only upon the simultaneous prosperity of all. This idea Pufendorf had already accurately discovered. But if the international economic life of the present has in unexpected ways wrenched the states loose from their previous isolation and brought them closer together, then the point of departure of all legal relations which furnished the soil for the doctrinal system of Samuel von Pufendorf, “Thou art not alone in the world,” must be authoritative in increased measure today for the relations of states under international law.
An epoch, which has as its task the “socialization of international law,”32 must recognize in Pufendorf therefore a leader and pathfinder. And if we today must consider it as an error of method that Pufendorf according to the model of Hobbes allowed international law to disappear altogether in natural law, perhaps the setting forth of this doctrine
32 Cf. hereon the replies, which under the title, "Jus naturae et gentium" an inquiry for the anniversary of Hugo Grotius, appeared as a separate from Vol. 34 of the Zeitschrift fur internationales Recht, edited by Professor Dr. Th. Niemeyer at Kiel in 192S.
concerning the obligatory power of natural law, in an age in which international law as the youngest branch on the tree of legal development was in practice still a very delicate little sprig, has in large measure been beneficial. The development of the idea of international law was thereby substantially facilitated and at that time it was possibly chiefly dependent thereon. We as jurists know better today than Pufendorf how to distinguish between a philosophical right, which is developed purely from reason and which should be a just right, and actually valid positive right, which may be a material injustice,33 but we also know that it is always proper to continue to develop valid right rationally under great guiding principles, and that our age, which has overcome space and has completely transformed the face of the earth, needs the solution of this problem more urgently than any other. In the necessary and complete conquest of the age which lies behind us, of a mode of thought which is more or less historical, the natural lawyer, Pufendorf, consequently will be of assistance to us. Therefore, he, who as author more than 250 years after the appearance of his work still deserves consideration, is rightly counted among the “Classics” of international law.
June 10, 1925.
33 Cf. hereon the statement of Scrücung-Wehberg, Die Satzung des Volkerbundet (2d edition, Berlin, 1924), p. 1S2.