So, the justice which Gratius speaks about is bourgeois justice. “Due to the will of the Creator of nature, a human alone is helpless and requires lots of things for a good living. That is why natural law includes benefit. It was a reason of emerging of a state law. Both the community and power emerged because of some benefit. As for international law or the law of the peoples, it appeared according to custom and agreement of peoples in favour of all the communities. The other source of it is nature and holy laws.
According to Gratius, just as a criminal of internal state legislation ruins his future well-being and the one of his descendants, the criminal of the natural law ruins the basement of his future peace. Peoples who break this rule, break the walls erected for their safety forever. There is nothing solid beyond the law.
The main problem in “The Three books on the Right of War and Peace” is the problem of the relation between the war and law, in other words, can a war be fair and that’s why legal. Gratius argues with the point that war and law can’t be compatible and that voice of law is overridden by the sound of weapon. He dedicates a significant part of his work to refutation of this, as he says, mistake. “During a war only civil laws keep silence, because they are created for peace, but not the natural ones, they are eternal.” He greatly believes in the existence of some common law in the international relations, which works both for war and peace. “It is necessary to start a war to keep justice, and to continue a started war, keeping in the limits of law.
According to Gratius, war can be waged only against those who cannot be made doing something in a legal order. Legal forms are common for those who consider themselves weaker. For those who consider themselves equal wars must be waged. “During a war one must keep to the act of peace and one must start a war only intending to finish it as fast as possible.
In the treatise, the war in a broad sense is defined as a state of struggle with the force, as solving of controversial questions with the implementation of force. This definition of war spreads to many types of wars. Depending on the sides (subjects), taking part in a war, the force can be private (self-defense by a person not possessing a state power), public (state) or combined (on one hand – public, one the other - private). In a narrower sense, war is an armed conflict between states. The right of war is justice, but in a negative meaning: thing that does not contradict to justice. “The first inducements of nature do not contradict it, even on the contrary.” That’s the way in which he tries to prove it. Saving life and limbs, saving belongings, useful for it – correspond to the first inducements of nature. In other words, care of oneself does not contradict to community life, until they break somebody else’s right. The force that doesn’t break another’s right is legal. That means that, according to Gratius:
1) The sources of wars are the passions of human body (desire to possess valuables)
2) Just war is possible, which deserves approval of natural and international law.
Gratius defines two stages of just public war:
1) Solemn just war
2) Simply just war
“For the war to have solemn character, two conditions are required: it must be waged by the will of highest rulers of the states, and certain customs must be kept… Both of those are required, because any of them is not enough without another.
Public war is not solemn; it can be free from those customs and ceremonies; it can be waged against anyone by anyone’s authority. That means that any person has a right to wage his own war. But as war may cause danger for the whole state most legislatures forbid it. War can be waged only by the highest authority.”
Neither Gratius, nor any other bourgeois scholars of international relations and international law managed to find out the reasons of war and the principle difference between just and unjust war. One of my sources says that only Marxist theory managed it. According to Marxist’ point of view just war is not a predatory one but a war of liberation, which has a goal of protecting the people of external attack or of freeing colonies from the “oppression” of imperialism, etc. And unjust war is a predatory war, which has a goal to conquer and slave the other state’s people. But I must say that these views are out-of-date of course.
Company Inc 1956
2 Parry J H The Establishment of the Europian Hegemony: 1415-1715
3 Гуго Гроций О праве войны и мира Москва 1948
[1] This term has dual meaning. This is either inborn law, not dependable from state or the one that is common for different times or for different states at the same time.
[2] After having come to power and having created its own class structure, bourgeoisie rejected this separation of law into natural (ideal of law) and positive (the real practice). It admitted only positive law. And that’s why bourgeois scientists lose interest in natural law after that. In 19-century juridical positivism emerges and attracts wide spreading, only engaging positive law.