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the science of right-第33章

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formidable increase of the power of another state (potestas

tremenda) by acquisition of territory。 Lesion of a less powerful

country may be involved merely in the condition of a more powerful

neighbour prior to any action at all; and in the state of nature an

attack under such circumstances would be warrantable。 This

international relation is the foundation of the right of

equilibrium; or of the 〃balance of power;〃 among all the states that

are in active contiguity to each other。

  The right to go to war is constituted by any overt act of injury。

This includes any arbitrary retaliation or act of reprisal

(retorsio) as a satisfaction taken by one people for an offence

committed by another; without any attempt being made to obtain

reparation in a peaceful way。 Such an act of retaliation would be

similar in kind to an outbreak of hostilities without a previous

declaration of war。 For if there is to be any right at all during

the state of war; something analogous to a contract must be assumed;

involving acceptance on the side of the declaration on the other;

and amounting to the fact that they both will to seek their right in

this way。



                 57。 Right during War。



  The determination of what constitutes right in war; is the most

difficult problem of the right of nations and international law。 It is

very difficult even to form a conception of such a right; or to

think of any law in this lawless state without falling into a

contradiction。 Inter arma silent leges。* It must then be just the

right to carry on war according to such principles as render it always

still possible to pass out of that natural condition of the states

in their external relations to each other; and to enter into a

condition of right。



  *'〃In the midst of arms the laws are silent。〃 Cicero。'



  No war of independent states against each other can rightly be a war

of punishment (bellum punitivum)。 For punishment is only in place

under the relation of a superior (imperantis) to a subject (subditum);

and this is not the relation of the states to one another。 Neither can

an international war be 〃a war of extermination〃 (bellum

internicinum); nor even 〃a war of subjugation〃 (bellum subjugatorium);

for this would issue in the moral extinction of a state by its

people being either fused into one mass with the conquering state;

or being reduced to slavery。 Not that this necessary means of

attaining to a condition of peace is itself contradictory to the right

of a state; but because the idea of the right of nations includes

merely the conception of an antagonism that is in accordance with

principles of external freedom; in order that the state may maintain

what is properly its own; but not that it may acquire a condition

which; from the aggrandizement of its power; might become

threatening to other states。

  Defensive measures and means of all kinds are allowable to a state

that is forced to war; except such as by their use would make the

subjects using them unfit to be citizens; for the state would thus

make itself unfit to be regarded as a person capable of

participating in equal rights in the international relations according

to the right of nations。 Among these forbidden means are to be

reckoned the appointment of subjects to act as spies; or engaging

subjects or even strangers to act as assassins; or poisoners (in which

class might well be included the so called sharpshooters who lurk in

ambush for individuals); or even employing agents to spread false

news。 In a word; it is forbidden to use any such malignant and

perfidious means as would destroy the confidence which would be

requisite to establish a lasting peace thereafter。

  It is permissible in war to impose exactions and contributions

upon a conquered enemy; but it is not legitimate to plunder the people

in the way of forcibly depriving individuals of their property。 For

this would be robbery; seeing it was not the conquered people but

the state under whose government they were placed that carried on

the war by means of them。 All exactions should be raised by regular

requisition; and receipts ought to be given for them; in order that

when peace is restored the burden imposed on the country or the

province may be proportionately borne。



                    58。 Right after War。



  The right that follows after war; begins at the moment of the treaty

of peace and refers to the consequences of the war。 The conqueror lays

down the conditions under which he will agree with the conquered power

to form the conclusion of peace。 Treaties are drawn up; not indeed

according to any right that it pertains to him to protect; on

account of an alleged lesion by his opponent; but as taking this

question upon himself; he bases the right to decide it upon his own

power。 Hence the conqueror may not demand restitution of the cost of

the war; because he would then have to declare the war of his opponent

to be unjust。 And even although he should adopt such an argument; he

is not entitled to apply it; because he would have to declare the

war to be punitive; and he would thus in turn inflict an injury。 To

this right belongs also the exchange of prisoners; which is to be

carried out without ransom and without regard to equality of numbers。

  Neither the conquered state nor its subjects lose their political

liberty by conquest of the country; so as that the former should be

degraded to a colony; or the latter to slaves; for otherwise it

would have been a penal war; which is contradictory in itself。 A

colony or a province is constituted by a people which has its own

constitution; legislation; and territory; where persons belonging to

another state are merely strangers; but which is nevertheless

subject to the supreme executive power of another state。 This other

state is called the mother…country。 It is ruled as a daughter; but has

at the same time its own form of government; as in a separate

parliament under the presidency of a viceroy (civitas hybrida)。 Such

was Athens in relation to different islands; and such is at present

(1796) the relation of Great Britain to Ireland。

  Still less can slavery be deduced as a rightful institution; from

the conquest of a people in war; for this would assume that the war

was of a punitive nature。 And least of all can a basis be found in war

for a hereditary slavery; which is absurd in itself; since guilt

cannot be inherited from the criminality of another。

  Further; that an amnesty is involved in the conclusion of a treaty

of peace is already implied in the very idea of a peace。



                   59。 The Rights of Peace。



  The rights of peace are:

  1。 The right to be in peace when war is in the neighbourhood; or the

right of neutrality。

  2。 The right to have peace secured so that it may continue when it

has been concluded; that is; the right of guarantee。

  3。 The right of the several states to enter into a mutual

alliance; so as to defend themselves in common against all external or

even internal attacks。 This right of federation; however; does not

extend to the formation of any league for external aggression or

internal aggrandizement。



           60。 Right as against an Unjust Enemy。



  The right of a state against an unjust enemy has no limits; at least

in respect of quality as distinguished from quantity or degree。 In

other words; the injured state may use… not; indeed any means; but

yet… all those means that are permissible and in reasonable measure in

so far as they are in its power; in order to assert its right to

what is its own。 But what then is an unjust enemy according to the

conceptions of the right of nations; when; as holds generally of the

state of nature; every state is judge in its own cause? It is one

whose publicly expressed will; whether in word or deed; betrays a

maxim which; if it were taken as a universal rule; would make a

state of peace among the nations impossible; and would necessarily

perpetuate the state of nature。 Such is the violation of public

treaties; with regard to which it may be assumed that any such

violation concerns all nations by threatening their freedom; and

that they are thus summoned to unite against such a wrong and to

take away the power of committing it。 But this does not include the

right to partition and appropriate the country; so as to make a

state as it were disappear from the earth; for this would be an

injustice to the people of that state; who cannot lose their

original right to unite into a commonwealth; and to adopt such a new

constitution as by its nature would be unfavourable to the inclination

for war。

  Further; it may be said that the expression 〃an unjust enemy in

the state of nature〃 is pleonastic; for the state of nature is

itself a state of injustice。 A just enemy would be one to whom I would

do wrong in offering resistance; but such a one would really not be my

enemy。



      61。
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