Page:Catholic Encyclopedia, volume 15.djvu/609

 WAR

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WAR

ing its fundamental rights by force of arms. Grote insisted that war was a more or less continuous condi- tion of conflict between those contending by force; and so indeed it is; but even Grote, when seeking to determine the grounds of right and wrong in such a condition, necessarily moved the question back to the right to acts of force in either contending party, and so justified the more accepted juridical definition of a contest at arms between contending states. The juridical condition of the contending parties to the war is spoken of as a state of belligerency, while the term war more properly appHcs to the series of hostile acts of force exercised in the contention. To present here the position of CathoUc philosophy in this regard, it will be convenient to discuss in sequence: I. The Existence of the Right of War; II. Its Juridical Source; III. Its Possessor; IV. Its Title and Purpose; V. Its Subject-matter; VI. Its Term. — From these we may gather the idea of a just war.

I. The Existence of the Right of War. — The right of war is the right of a sovereign state to wage a contention at arms against another, and is in its analysis an instance of the general moral power of coercion, i. e. to make use of physical force to con- serve its rights in\iolable. Every perfect right, i. e. every right involving in others an obhgation in justice of deference thereto, to be efficacious, and consequently a real and not an illusory power, carries with it at the last appeal the subsidiarj' right of coercion. A perfect right, then, imphes the riglit of physical force to defend itself against infringement, to recover the subject-matter of right unjustly withheld or to exact its equivalent, and to inflict damage in the exercise of this coercion wherever, as is almost universally the case, coercion cannot be exercised effectively without such damage. The limitations of this coercive right are: that its exercise be necessarj'; and that damage be not inflicted beyond measure — first of necessity and secondly of proportion with the subject-matter of right at issue. Furthermore, the exercise of coercion is restricted in civil communities to the pubhc author- ity, for the reason that such restriction is a necessity of the common weal. In hke manner the use of force beyond the region of defence and reparation, namely for the imposition of punislvment to restore the balance of retributive justice by compensation for the mere violation of law and justice, as well as to assure the future security of the same, is reserved to pubhc authority, for the reason that the State is the natural guardian of law and order, and to permit the individual, even in a matter of personal offence, tobe witness, judge, and executioner all at once — human nature being what it is — would be a source of injustice rather than of equitable readjustment.

Now the State has corporate rights of its own which are perfect; it has also the duty to defend its citizens' rights; it consequently has the right of coercion in safeguarding its own and its citizens' rights in case of menace or violation from abroad as well as from at home, not only against foreign individuals, but aLso against foreign states. Otherwise the duty above indicated would be impossible of fulfilment; the cor- porate rights of the State would be nugatorj', while the individual rights of citizens would be at the mercy of the outside world. The pressure of such coercion, it is tnie, may be applied in certain circumstances without both parties going to the extreme of complete national conflict; but when the latter arises, as it commonly wiU, we have war pure and simple, even as the first apphcation of force is initial warfare. Catholic philosophy, therefore, concedes to the State the full natural right of war, whether riefensive, as in case of another's attack in force upon it; offensive (more properly, coercive), where it finds it necessary to take the initiative in the application of force: or punitive, in the infliction of punishment for evil done against itself or, in some determined cases, against

others. International law views the punitive right of war with suspicion; but, though it is open to wide abuse, its original existence under the natural law cannot well be disputed.

II. The Source op the Right of War is the natural law, which confers upon states, as upon indi- viduals, the moral powers or rights which are the necessary means to the essential purpose set by the natural law for the individual and the State to accom- plish. Just as it is the natural law which, with a view to the natural purposes of mankind's creation, has granted its substantial rights to the State, so it is the same law which concedes the subsidiarj^ right of physical coercion in their maintenance, without which none of its rights would be efficacious. The full truth, however, takes into consideration the hmita- tions and extensions of the war-right set by inter- national law in virtue of contract (either implicit in accepted custom or exphcit in formal compact) among the nations which are party to international legal obhgation. But it must be noted that civiUzed nations, in their effort to ameliorate the cruel condi- tions of warfare, have sometimes consented to allow, as the less of two imminent evils, that which is for- bidden by the natural law. This is not strictly a right, though it is often so denominated, but an inter- national toleration of a natural wrong. In the com- mon ten'itorial or commercial ambitions of great powers there maj- be an agreement of mutual tolera- tion of what is pure and simple moral WTong by virtue of the natural law, and that without the excuse of its being a less evil than another to be avoided; in this case the unrighteousness is still more evident, for the toleration itself is WTong. The original determina- tion of the right of war conies from the law of nature only; consent of mankind may manifest the existence of a phase of this law; it does not constitute it.

The agreement of nations may surrender in common a part of the full right and .so quaUfy it; or it may tol- erate a hmited abuse of it ; but such agreement does not confer a particle of the original right itself, nor can it take aught of it away, except by the consent of the nations so deprived. The usage of the better part of the world in such a matter may be argued to bind all nations, but the argument does not conclude convinc- ingly. The decisions of American courts lean towards the proposition of universal obhgation: EnglLsh jurists are not so clearlj' or generally in its favour. Of course, for that part of the international law bearing on war, which may be justly said to be the natural law as binding nations in their deahngs with one another, the existence of which is manifested by the common consent of mankind, there can be no contro- versy: here the international law is but a name for a part of the natural law. Suarez, it is true, is inchned to seek the right of war as a means not precisely of defence, but of reparation of right and of punishment of violation, from the international law, on the ground that it is not necessarv- in the nature of things that the power of such rehabilitation and puni.shment should rest with the aggrieved state (though it should be somewhere on earth), but that mankind has agreed to the individual state method rather than by forma- tion of an international tribunal with adequate police powers. However, the argument given above shows with fair clearness that the power belongs to the aggrieved state, and that though it might have en- trusted, or may yet entrust, its exercise to an inter- national arbiter, it is not bound so to do, nor has it done so in the past save in some exceptional cases.

III. The Possessor of the Right of War.- — The right of war hes solely with the sovereign authority of the State. As it flows from the efficacious charac- ter of other rights in peril, the coercive right must belong to the pos.sessor, or to the natural guardian, of those rights. The rights in question m.ay be directly corporate rights of the State, of which, of course, the