XII. But where the right is ambiguous, and neither party has possession, the pretender, who refuses to divide the claims, may reasonably be charged with injustice.
XIII. From what has been said it will not be difficult to settle a much agitated question, whether, with respect to those, who are the principal movers of a war, there can be justice on both sides. For there are distinctions proper to be made in the various acceptations of the word JUST.
A thing is said to be just, either as to its causes, or its effects. The causes too may be confined either to justice in a PARTICULAR acceptation, or they may be extended so as to include under that name every kind of rectitude. Again, a particular acceptation may be divided into two kinds, one relating to the ACTION, and the other to the agent.[56] An agent may be said to act justly, when, in what he does, he commits no breach of STRICT LAW, though his conduct may not be conformable to equity.
In a PARTICULAR acceptation of the word justice, with regard to a matter in dispute, it cannot in war, any more than in legal proceedings, apply to both sides. For there can be no moral principle, commanding us, under the same circumstances, both to DO, and to ABSTAIN from a particular action. It may happen indeed that neither of two belligerent powers may act unjustly. For no one can be charged with acting unjustly unless he knows that he is doing so; but there are many, who are not aware of the nature, extent, and consequences of their measures. Thus in a law-suit, both parties may sincerely believe that they have justice on their side. For many things both in law and fact, which would establish a right, may escape the notice of men.
In a GENERAL acceptation, an action may be called just, where the agent is free from every kind of blame. Yet in many cases an agent may deviate from the strict rules of legal justice, and be liable to no blame, when that deviation is owing to unavoidable ignorance, there having been neither time nor opportunity sufficient for him to know the substance, or perhaps existence of the law. So it may happen in law-suits, that both parties are free not only from the imputation of injustice, but from all blame, especially where either of them is litigating a matter not on his own, but on another's account; as for instance where a guardian is acting for his ward, he would not be authorized in abandoning even a doubted right. Aristotle says that in matters of disputed right neither side can be charged with injustice; conformably to which opinion Quintilian observes that an upright pleader may be engaged on either side of the question. Aristotle further observes that passing a just judgment is an ambiguous term, signifying that a judge determines either according to the strict letter of the law, or according to the dictates of his own conscience. And, in another place, he has said that giving a wrong judgment through ignorance is no act of injustice.
But in matters of war and peace, where such weighty and varied interests on all sides are concerned, it would be difficult to obtain a judgment purely impartial, and abstracted from all personal motives, unless there be the most clear and undeniable evidence on the points in question.
If we denominate a thing to be just, from its effect in conferring certain rights, in this sense it is plain that in war there may be justice on both sides. In the same manner, a sentence not strictly legal, or a possession not perfectly just may nevertheless confer certain rights.