Appendix: On the *Ius Gentium*

Usefulness. - In today's social and political controversies, accurate notions concerning the ius gentium come very much into use.

— Various uses of the terms. The appellation Ius Gentium is sufficiently equivocal. For at Rome it designated that right, constituted more by natural equity, which foreigners used, while civil laws had been made for the Quirites alone. Sometimes, in a signification not pertinent here, the inclinations proper to man insofar as he is a rational being were formerly said to be ruled by ius gentium, but the instincts common to men and brute animals, for instance the instinct of preservation and of propagation, by natural right ¹.

By the most frequent usage today, ius Gentium is called the right which must be observed among nations in time both of peace and of war, and which, at least in part, has been defined by positive agreements.

The present question. - But there are many institutions which are seen to be in force almost everywhere, not to say everywhere, and seem to arise neither from positive law nor from properly natural right. Institutions of this kind: some regulate relations among inhabitants of the same commonwealth, so that they could materially be described as the civil law of very many nations; thus the right of prescriptions, the division of goods, and formerly servitude itself. Others regard either the condition which foreign citizens obtain in another commonwealth, or those things which must be observed among commonwealths: the various privileges of ambassadors; the forbidden occupation of the high sea; the concession to individual peoples of the adjacent sea to a certain distance; the observance of a white flag.

Now, concerning the formal reason by which institutions of this sort are in force, there is inquiry and dispute, since some call it natural right, others positive right; others a certain middle right, which some contend approaches more to natural right, others more to positive right.

Its solution. - Omitting controversies here, we establish that this right is truly middle. For, the human race being considered as it now is, after men had been sufficiently multiplied that they ought to come together into perfect society, they of their own accord, without the authority of anyone or formal agreement, agreed concerning the division of goods and of nations, concerning admitting ambassadors, etc. For the necessity of institutions of this kind was manifest to them. Nature indeed, by itself alone, seems to leave the option of divided or conjoined possession, of a singular or plural commonwealth, and so forth. But after those institutions have been introduced, nature itself, which wills to sanction social cooperation efficaciously, confirms them and makes them obligatory. Therefore they pertain to a truly middle right, insofar as a positive institution was the necessary condition for the right itself to exist. Nor is it more general or firm than the originating condition itself. Wherefore that right is less universal and less immutable than the right of nature properly so called. Less universal: for it is not repugnant to nature that in certain special circumstances goods be possessed in common. Less immutable: for the circumstances which make the institution manifestly necessary can themselves be the present and common condition of the human race after sin; and such circumstances promise perpetual firmness here on earth to the aforesaid right. And they can also cohere with a more deteriorated stage of human cultivation. Thus the city or commonwealth itself was long not the thing of all, and servitude was said to be necessary, while now the prohibition of servitude pertains to the ius Gentium. Whether the division of the human race into several nations of wholly independent right will always be such: this also can be doubted.

The ius Gentium can be quite aptly referred to natural right, just as customary right is referred to written human right. The former obliges from right established by the Author of nature; the latter from right established by the author of written law. Custom is law promulgated by the morals of a people; the ius Gentium is promulgated by the morals of peoples. Finally, both can be confirmed by written right.

¹ St. Th., lect. 12 on book 5 of the Ethics; 1, 2, q. 95 art. 4 ad 1 at the end; 2, 2, q. 57 art. 3 c. and ad 3.

— Explanation of the stable right of private appropriation. Because of today's fervent controversies, it seems worth the labor to insist for a little while on the varied reason by which the right of private appropriation - which, imitating the classical writers, we have alleged as an example of an institution of the ius Gentium - can be vindicated as independent of civil power. For either it is referred to natural law, which has immediately given that right, yet in such a way that it has made the same subject to several limitations of positive right; or that right is traced back to the ius Gentium, such as we have now described it; or it is ascribed to the ius Gentium understood in such a way that the tacit consensus of men concerning the division of goods is not only the condition but the true cause of the right itself of possessing goods dividedly. Then, to use a comparison, just as not only those things are to be held by faith which by solemn judgment are proposed as to be believed either in an ecumenical Council or by the Supreme Pontiff speaking ex cathedra, but also those things which by her ordinary magisterium the Church teaches as to be believed, so, besides the solemn promulgation of law, there would be a certain implicit promulgation of law in the very consensus of the nations. But then to the multitude itself, as such, true jurisdiction and legislative power must be acknowledged.

The first form of reasoning, after C. de Lugo (De Iustitia, d. 6, n. 5-6), is today more received among Catholics; and the Encyclical Letter Rerum Novarum seems to sanction the same by its authority. The second manner of speaking, since it traces the formal force of right back to the law of nature, does not contradict the encyclical letter, and as it were suggests a concord between the scholastic doctors and modern Catholics. The third seems more consonant with the views of the classical doctors, but seems to stand at a greater distance from the doctrine received today among Catholics. To the third explanation this also perhaps can be objected, that every force of custom is ascribed to the consent of the Legislator; which does not seem necessary, if the consenting multitude itself imposes law upon itself.

That controversy coheres closely with the question concerning the first subject of public power: is it the people, as they were teaching with moral unanimity in the age of Bellarmine, or does the designated prince receive the same immediately from God? But concerning these things more will be said in their proper place.

— By the formal ius Gentium there cannot be explained the wholly particular sanctions of international right which are observed without express agreement. For nature bears itself as plainly indifferent toward these. Therefore recourse must be had to tacit agreement; or there must be admitted a certain true society of more cultivated nations, of perfectly democratic form, whose right rests upon the consensus of the whole multitude ¹. Therefore the recent Societas nationum can be considered, not as some new beginning, but rather as the more open and complete ordering of a thing long since existing. How much it would benefit this Society if the center of Catholic unity were restored into the center of the association of peoples! The solution of all difficulties: Christ!

¹ This opinion is expounded by Suarez, Leg., l. 2, c. 19, n. 9; by Taparelli, Saggio, n. 1357-1368; by Van Gestel, De iustitia et lege civili, XLII; but it is rejected as a dangerous fiction by Schiffini, Comp. Ethic., n. 193.

— The ius Gentium, whose name has varied usage, here designates for us institutions which are in force with moral universality, although they seem to proceed neither from proper natural right nor from formal positive law.

We judge that right to be middle, insofar as the consensus of men is a required condition; and once it has been posited, it is sanctioned by natural law itself. Therefore those institutions pertain to hypothetical natural right.

II. Thus it happens that the right of private appropriation is ascribed by some to natural right; by others to the ius Gentium such as we have described it; finally by others to positive right, yet that of the nations, insofar as, by the authority committed to the human race, through the consensus of the human race, appropriation has been established as a right.

III. Wholly determinate sanctions of the ius Gentium must be ascribed either to tacit agreement or to some international society of perfectly democratic form.