Montesquieu

Usbek to the same


Magistrates must dis­pense jus­tice bet­ween citi­zens ; each peo­ple must itself dis­pense jus­tice to ano­ther peo­ple. In this second dis­tri­bu­tion of jus­tice, one can­not apply other maxims than in the first.

From one peo­ple to ano­ther there is rarely a need for a third party to judge, because the sub­jects of dis­pute are almost always clear and easy to resolve. The inte­rests of two nations are ordi­na­rily so sepa­rate that one needs only love jus­tice in order to find it ; one can hardly anti­ci­pate one­self in one’s own cause.

Such is not the case with dis­pu­tes that arise bet­ween indi­vi­duals. As they live in society, their inte­rests are so lin­ked and inter­connec­ted, there are so many of dif­fe­rent kinds of them, that it is neces­sary for a third party to sort out what the greed of the par­ties seeks to obfus­cate.

There are only two kinds of just wars : those that are waged to repel an enemy who attacks, and the rest to aide an ally that is atta­cked.1

There would be no jus­tice in waging war for the prince’s per­so­nal quar­rels unless the case were so grave as to merit the death of the prince or of the peo­ple that com­mit­ted it. Thus a prince can­not wage war because someone has refu­sed him an honor which is due him, or because his ambas­sa­dors have been in some way ill-used, and other simi­lar things, no more than an indi­vi­dual can kill someone who refu­ses to yield to him.2 The rea­son is that since the decla­ra­tion of war must be an act of jus­tice, in which the punish­ment must always be pro­por­tio­nate to the fault, the ques­tion must be whe­ther he on whom was is decla­red deser­ves to die. For to wage war on someone is to attempt to give him a death penalty.

In public law the har­shest act of jus­tice is war, because its goal is the des­truc­tion of the society.

Retribution is the next level. It is a law which tri­bu­nals have not been able to avoid obser­ving to mea­sure the penalty by the crime.

A third act of jus­tice is to deprive a prince of the advan­ta­ges he can obtain from us, again pro­por­tio­ning the penalty to the offense.

The fourth act of jus­tice, which must be the most fre­quent, is to repu­diate the alliance of a peo­ple about whom one has rea­son for com­plaint. This penalty is the equi­va­lent of the banish­ment esta­bli­shed in the tri­bu­nals, which cut the guilty off from society. Thus a prince whose alliance we repu­diate is the­reby cut off from our society and is no lon­ger one of its mem­bers.

There is no grea­ter affront one can made to a prince than to repu­diate his alliance, nor a grea­ter honor than to contract it. There is nothing among men that is more glo­rious and even more use­ful for them than to have others always seeing to their pre­ser­va­tion.

But for an alliance to bind us it must be just ; thus an alliance made bet­ween two nations to oppress a third is not legi­ti­mate, and can be vio­la­ted without crime.

It is not even to a prince’s honor and dignity to ally him­self with a tyrant. It is said that a monarch of Egypt had the king of Samos war­ned about his cruelty and tyranny, and com­man­ded him to desist ; as he did not, he sent him word that he repu­dia­ted his friend­ship and his alliance.3

The right of conquest is not a right. A society can be foun­ded only on the will of the asso­cia­tes ; if it is des­troyed by conquest, the peo­ple beco­mes again free ; there is no more new society, and if the conque­ror tries to form one, that is tyranny.

As for peace trea­ties, they are never legi­ti­mate when they require a ces­sion or indem­ni­fi­ca­tion grea­ter than the damage inflic­ted ; other­wise it is a pure vio­lence, which one can always go back on, unless in order to reclaim what one has lost one is obli­ged to make use of means so vio­lent that the resul­tant harm is grea­ter than the good that he should derive from it.

There you have, dear Rhedi, what I call public law ; there you have the law of huma­nity, or rather of rea­son.

Paris this 4th day of the moon of Zilhagé 1716

In a more complex analysis in The Spirit of Law (X, 2), the definition of “just war” is broader, since it includes preventative wars.

Early in his personal reign (1661) Louis XIV threatened, in turn, Spain, whose ambassador had taken precedence over the French ambassador in London, and the Holy See, where there the Corsican guards had attacked the French embassy.

Amasis of Egypt and Polycrates of Samos, according to Diodorus Siculus, Historical Library, I (in fine).