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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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Gentili, Vitoria, and the Fabrication of a ‘Natural Law of Nations’

Gentili, Vitoria, and the Fabrication of a ‘Natural Law of Nations’

(p.340) 16 Gentili, Vitoria, and the Fabrication of a ‘Natural Law of Nations’
The Roman Foundations of the Law of Nations

Anthony Pagden (Contributor Webpage)

Oxford University Press

Alberico Gentili begins De iure belli with a striking, but also somewhat puzzling, claim. The laws of war, he says, are not to be found in the books of Justinian nor, however, ‘does [it] . . . appear to be the function either of the moral or of the political philosopher to give an account of the laws which we have in common with our enemies and with foreigners’. The reason given for this last assertion is that the philosopher or the moralist always, ‘confines himself within the city state, and rather limits himself to the foundations of the virtues than rear lofty structures’, whereas in Gentili's, view, ‘this philosophy of war belongs to that great community formed by the entire world and the whole human race’. But if the philosopher and the moralist are not competent to judge matters concerning the ‘whole human race’, there remain only two possible candidates: the theologians and the jurists. The problem for the jurist was how to come up with a conception of the law of nations which would possess both a clearly established, and seemingly indisputable body of first principles, yet at the same time have some real legal content. That content, Gentili in fact derived ultimately from the Corpus iuris civilis. And he did so, this chapter argues, not only because he was a jurist (rather than a philosopher or a theologian) but for reasons which are crucial for his understanding of what a philosophically-formulated law of nations should be.

Keywords:   justice, natural law, law of nations, Roman law, jurists, theologians

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