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Bynkershoek: Questions of Public Law (1737)

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“Bynkershoek’s attitude to International Law is rigidly legal rather than humanitarian. He concedes extreme powers to belligerents over the person and property of the enemy and draws no distinction between combatants and civilians or public and private property. Unlike Grotius, he refuses in general to consider the justice or injustice of the war as having any bearing upon the rights of the warring States and requires no declaration of war. He regards usage, particularly recent usage as exemplified by the treaties and edicts of his own State, as the main source of international rules, but is not sparing in his criticism of them when they run counter to reason, which to him is the final and immutable arbiter.” J. W. J. L. Q.R. 48:137.

Translated into English by Tenney Frank (1929). Books 1 & 2, 192 pages, 50 chapters, with handy bookmarks. Available in .pdf file format for reading on your PC, e-reader, tablet or smart phone. This is a fully digital edition of this work – it is not a hard copy publication or facsimile edition. Footnotes have been omitted in this edition, and spelling has been modernized. This electronic edition © Copyright 2003, 2005 Lonang Institute.  Click here to view this book in its entirety.

“When Cicero said that there are ‘two kinds of contests, one by means of discussion, the other by means of referee’, he had reference in the latter case to ‘war’. However, he did not in this way intend to define war, as Grotius thought, for such a definition would be incomplete. Equally imperfect is the definition of Alberico Gentili, who says that war is ‘a just contest carried on by the state’s armed forces’. Although the former of these two definitions is approved by Grotius, both will appear to be incomplete from the one which I add, a definition which, if I mistake not, embraces all the conditions of war: ‘War is a contest of independent persons carried on by force or fraud for the sake of asserting their rights.’ Let us now examine this in detail.”    C. van Bynkershoek, from Questions of Public Law.

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