The Legal Position of War: Changes in its Practice and Theory from Plato to Vattel

197 Pages·1937·9.165 MB·English

by  William Ballis PH.D. (auth.)

THE LEGAL POSITION OF WAR:
CHANGES IN ITS PRAC,TICE
AND THEORY FROM
PLATO TO VAT TEL
BY
WILLIAM BALLIS, PH.D.
Instructor in Political Science, The University of Chicago
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
1937
Copyright 1937 by Springer Science+ Business Media Dordrecht
Originally published by Martinus Nijhoff, The Hague, Netherlands in 1937
Softcover reprint of the hardcover 1st edition 1937
All rights reserved, including the right to translate or to reproduce this
book or parts thereof in any form
ISBN 978-94-017-5663-1 ISBN 978-94-017-5948-9 (eBook)
DOI 10.1007/978-94-017-5948-9
THE LEGAL POSITION OF WAR: CHANGES IN ITS
PRACTICEANDTHEORY FROM PLATO TO VATTEL
PREFACE
The problem of the legal position of war is not confined
within the limits of any one historical epoch. Questions
relating to the problem will no doubt arise as long as wars
are waged between nations. They are not questions involv
ing the international law of the conduct of war, but those
which concern the legality or illegality of commencing war.
It is this particular aspect of the problem of war that is
considered in this study. The present work is not an
investigation into the ethics of war, but an historical
analysis of some of the legal issues which confront states
contemplating participation or non-participation in war.
While this book ends with the nineteenth century, the
author hopes that it will contribute something to the clari
fication of the present problem of controlling war through
international law.
Most of the recent works on this subiect, written, by such
students as Vanderpol with his monumental La Doctrine
Scolastique du Droit de la Guerre, Sturzo with his
profound International Community and the Right of
War and Regout with his provocative La Doctrine de la
a
Guerre Juste de Saint Augustin Nos Jours, have been
written with emphasis on the doctrines of mediaeval
churchmen. Although the contributions of the scholastics
on this question have been very significant in the history
of the subiect, they are somewhat restricted by the political
and ecclesiastical setting in which they were offered. While
VIII PREFACE
the author wishes to acknowledge his indebtedness to the
works of Vanderpol, Sturzo and Regout for their excellent
analyses of the doctrines on war, he has found them some
what insufficient for the investigator in international law.
Because their interests are religious rather than legal, they
have not interpreted the writings of the churchmen from
the conceptual basis of international law. With the ex
ception of Sturzo, they have confined their research mainly
to the works of the churchmen and have omitted the earlier
contributions of the Greeks and Romans and many of the
successive works of the Renaissance Humanists andRe
formers, as well as of the classics of the professional inter
national law writers, all of which form the body of this
book.
One of the most pleasant tasks in the writing of a pre
face is to acknowledge the assistance which has been given
to the author by hisf ormer teachers, colleagues, and friends.
To them he wishes to express his obligation andthanksfor
many hours of lectures, seminars, and private conversa
tions which have aided him in formulating his ideas more
clearly and in directing his research more pointedly. What
ever errors and omissions are present in this work reflect
only the misapplication by the author of advice and coun
sel of these generous people. Particular acknowledgment
of gratitude must be given to two people. To Professor
Quincy Wright, the author desires to pay homage and
offer thanks for having suggested this study and for having
supervised and encouraged it through all its stages. And to
the author's wife who has helped him in numerous ways,
he would like to express here his deepest obligation.
TABLE OF CONTENTS
Page
INTRODUCTION ..... 1
CHAPTER I. ANCIENT TIMES 12
1. Greece ..... . 12
a) Practice . . . . . . 12
b) Representative Thinkers 17
(1) Plato . 17
(2) Aristotle 19
c) Summary. 19
2. Rome .... 20
a) Practice . . •. 20
b) Representative Thinker . 27
(1) Cicero . . . . . . 27
c) Summary . ..... . 29
CHAPTER II. THE MIDDLE AGES. 32
1. Practice ... 32
2. C h u r c h m e n . . 40
a) Saint Augustine .. 41
b) Isidore of Seville 43
c) Saint Thomas Aquinas 46
3. Legist s . 49
so
a) H ostiensis .
b) Lignano .. 51
4. Summary. 58
X TABLE OF CONTENTS
Page
CHAPTER III. RENAISSANCE AND REFORMATION 61
1. Practice . . . . . . . . . . 61
2. R e n a i s s a n c e H u m a n i s t s a n d
Reformers. 66
a) Machiavelli 66
b) Luther . . 69
c) Erasmus . 72
d) More . . 73
e) Bacon . . 75
3. I n t e r n a t i o n a 1 L a w W r i t e r s 77
a) Victoria 77
b) Ayala . 87
~s~~. ~
d) Gentili . 93
4. S u m m a r y . 99
CHAPTER IV. THE SEVENTEENTH CENTURY. 105
1. P r a c t i c e . . . . . . . . . . . . 1O S
2. I n t e r n a t i o n a 1 L a w W r i t e r s 107
a) Grotius . 107
b) Zouche . 116
c) Pujendorf 119
d) Rachel . . 123
e) Textor . . 126
3. Summary. 131
CHAPTER v. THE EIGHTEENTH CENTURY . 135
1. P r a c t i c e . . . . . . . . . . . 135
2. I n t e r n a t i o n a 1 L a w W r i t e r s 137
a) Bynkershoek 137
b) Moser . . . 140
c) de Martens . 142
TABLE OF CONTENTS XI
Page
d) Wolff . 144
e) Vattel . 150
3. Summary. 158
CHAPTER VI. CONCLUSION. 162
BIBLIOGRAPHY . 174
INDEX . . . . . . . . . 185
INTRODUCTION
War has been primarily a technical matter- the
use of weapons to accomplish political, economic, and
military purposes. But in all civilizations, even among
primitive people, war has had a legal aspect. The
customs of primitive people have recognized that, if
waged under certain circumstances, and with certain
methods, war was right; while under other circum
stances and with other methods, it was wrong. The
customs of civilized people pertaining to war have
been rationalized by philosophers, statesmen, and
jurists in the discussion of the "legal position of war".
The statement that war has a legal position implies
the existence of a body of international law. While not
until the sixteenth century in western Europe has
there been a systematic literature of this subject, there
is ample evidence to show that statesmen have
recognized the existence of legal principles governing
the relations between organized peoples.
It is proposed to examine the legal position of war
in the ancient, mediaeval, and the early modern
periods of the history of western Europe. While
definitions of war 1 and international law might easily
' On the various definitions of war, cf. Clyde Eagleton, "The
Attempt to Define War", International Conciliation, June 1933,
Number 291 (New York: Carnegie Endowment for International
Peace); Quincy Wright, :'Changes in the Conception of War",
American journal of International Law, XVIII (1924), 755-67.
Ballis, War