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The Roman Foundations of the Law of NationsAlberico Gentili and the Justice of Empire$
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Benedict Kingsbury and Benjamin Straumann

Print publication date: 2010

Print ISBN-13: 9780199599875

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199599875.001.0001

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Ius gentium: A Defence of Gentili’s Equation of the Law of Nations and the Law of Nature

Ius gentium: A Defence of Gentili’s Equation of the Law of Nations and the Law of Nature

(p.283) 14 Ius gentium: A Defence of Gentili’s Equation of the Law of Nations and the Law of Nature
The Roman Foundations of the Law of Nations

Jeremy Waldron (Contributor Webpage)

Oxford University Press

This chapter takes up the fundamental question of the place of practice in the theoretical concepts of the law of nations and natural law. It explores the puzzle of how the normative code of natural law, which Gentili and his predecessors believed to be ascertained by human reason, could also be derived from the kind of empirical material concerning practice that Gentili uses to demonstrate that a rule is part of the law of nations. It argues that the confident separation of reason and normativity from empirics and assessments of actual practice in legal theory is misguided, and that Gentili's imbrication of the two sides of this dichotomy is well-grounded. Pure moral thought may be mere ‘untutored nature’, made better by absorbing insights from practice and historical experience. And pure empirical study of practice as the basis for positive law is not sufficient when practice is not uniform: choices must be made about which (if any) set of competing practices is indicative of law, and these choices are made partly through use of criteria of morality and justice, in a kind of reflective equilibrium between theory and practice. Gentili's views on these matters are not formulated with complete clarity or consistency, but his work overall is suggestive of an approach that is illuminating also for contemporary international law.

Keywords:   Alberico Gentili, law of nations, natural law, practice

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