Treatise “The Three books on the right of war and peace” is dedicated to, as seen from the name, problems of international public law. In it the author looks at the problem of justice, sources of international law, possibility of just war and types of just wars, of influence of the war to juridical relations, which existed before, of rules of waging war, etc.
Gratius writes that his treatise is written in the defense of justice. This view on justice is as metaphysical as view on state and law. The origins of this metaphysical view are shown in the work F. Engels “To the living problem”. Looking over the emerging of state and law, Engels writes that at a certain stage of class society development complex legislation and a class of professional lawyers emerges. Together with lawyers the study of law emerges, which “in its later development compares juridical systems of different peoples and different epochs, not as reflections of economic relations but as self-explaining systems. This comparison finds similarities. The lawyers call everything more or less similar in different systems natural law. The scale that measures what is related to natural law is operating through the most abstract expression of the law – justice. Since then the main goal of development of the law, in the lawyers opinion, is to draw human life conditions nearer to justice, or eternal justice. But this justice always expresses only ideological expression of existing economic relations from their conservative or revolutionary point of view. The justice of Greeks and Romans was slavery, the justice of bourgeoisie of 1789 demanded to overthrow feudalism, because it is unjust. So views on eternal justice vary not only in different places or times, but they also vary from person to person.”
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.
Реферат опубликован: 27/02/2010