Unjustifiable War and the Means to Avoid It

Abstract

In the beginnings of international law, in Grotius and his predecessors and immediate successors, discussion of the Right of War, the jus ad bellum, takes up a great deal of room by the side of the Right in War, the jus in bello. Today, however, the question, When is war justified? has almost ceased to be discussed. The so-called predecessors of Grotius, like himself and his immediate followers, accepted from the Roman law the notion of the bellum justum piumque. This concept was purely formal. To make a war a bellum justum piumque nothing more was required than compliance with the precepts of the fetial law as to the formalities of declaring war. To be sure, these, at least originally, required a resolution of the Senate and its ratification by the Centuriate Comitia. Later, however, this requisite, to which one could perhaps not always deny some material significance, completely disappeared behind the empty ceremony which the Pater Patratus performed at the boundary of the enemy country with the “hasta ferrata aut sanguinea prœusta” hurled across the same. Nay, in the war with Pyrrhus, a deserter from the former’s army was allowed to buy a piece of ground in Rome, into which the spear was flung as into hostile territory, in order that the Pater Patratus might not have to go all the way to the frontier. On these formalities, which naturally became more and more futile, Roman historians based their country’s reputation of never having waged an unjust war. Still, the fetial law had at least the one advantage of giving the adversary a 33 days’ respite for deliberation.