Monday, November 14, 2011

2011.11.30

Benedict Kingsbury, Benjamin Straumann (ed.), The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire. Oxford; New York: Oxford University Press, 2010. Pp. xiv, 382. ISBN 9780199599875. $120.00.

Reviewed by Christopher Smith, British School at Rome and University of St Andrews (cjs6@st-and.ac.uk)

Version at BMCR home site

[Table of Contents at the end of the review]

Alberico Gentili left Italy in the 1570s. He made his way to Oxford where he became Regius Professor of Civil Law from 1587 until his death in 1608. Protestant, combative and learned, his three volumes On the Law of War (de iure belli) are best known, but tend to be overshadowed by Grotius, who knew, reflected on and to an extent reshaped Gentili's work. Subsequently Gentili published a two volume work called de armis Romanis. The first volume is a pointed and sharp attack on Roman warmongering as immoral, unjustified and leading to devastating results. The second volume is a riposte which lays out a positive account of Roman actions. Both are written with a consummate knowledge of Roman history, but also of Roman law. The project of which this volume is one output also produced an excellent critical edition and translation by David Lupher, recently reviewed by Dana Sutton BMCR 2011.07.48. This collection of essays by a distinguished group of scholars sets Gentili into a wider historical, intellectual and philosophical context, and responds to his general theories on war, its justifications, aims and aftermath.

Kingsbury and Straumann begin by situating the work of Gentili and the subsequent papers in the volume in a wider context. In particular, there is discussion of the work of R. Tuck in The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford 1999) and his division of a humanist account which, by way of Cicero and Tacitus, lays emphasis on warfare as self-preservation and self-defence and a scholastic Augustinian account which makes a much stricter case for engaging in warfare. It is excellent to see the authors of various chapters clearly commenting on each other's work, and thereby giving a real sense of the issues at stake and the debates to be had.

Gentili was writing with a deep knowledge of Livy and other ancient writers and their contribution to political philosophy, and also a separate body of thought which used ancient imperialism and justifications thereof as a justification of contemporary expansionist ideologies, most especially that of the Spanish in the New World. Gentili was in the midst of an astonishingly fertile and thought-provoking series of debates, many of which remain extremely current. The debate over just war is usually dominated by reference to Grotius and then Kant and others, but at its heart remains unresolved. What are the correct grounds on which to base one of the most challenging decisions modern societies make? What gives legitimacy to such an act and what are the circumstances under which we can be justified in undertaking war?

The introduction begins to lay out some of these issues. The critical step which Kingsbury and Straumann make is to consider the Roman sources as a source of practical ethics couched within the mindset of Roman law. It is to the Digest and other sources for normative rules, derived in some part from private law and applied to the international scene, that Gentili and others appealed, and thus law is the critical context more than any more philosophical humanist standpoint.

John Richardson's chapter rehearses the conclusions of his book, The Language of Empire: Rome and the Idea of Empire from the Third Century BC to the Second Century AD (Cambridge 2008), which are now fairly familiar; for the Romans imperium meant power, and especially the power of the emperor or magistrate, not territorial empire. The value and relevance of this to Gentili is clearer in Ando's very important essay, which is itself very closely involved with an argument over the significance of the civil law for the development of both Roman and humanist theories of war. Ando begins by agreeing with Gentili's critical understanding of Roman claims about themselves and their rituals. He moves on to attack the antiquity of the concept of fetial law. Ando argues that the legis actio sacramento is precisely analogous to the fetial law in that it finds a solution to the problem of applying an archaic ritual – in which the thing over which title is in dispute has to be brought physically into court – by providing an alternative object which can stand symbolically for the item in dispute. This change, he suggests, prompted the creation of the same abstraction in fetial law (which is described at Serv. Aen. 9.52). This is valuable though I am not sure that it gets us to Ando's belief that the whole ritual is retrojected. There is an argument from silence at operation here and one which ignores to an extent the existence of a body of literature in which this matter may have been treated at greater length; and there are numerous examples of scruples over peace or non-aggression, including festivals between communities, treaties and so forth. So it would be surprising if there were no mechanism for declaring war; what does stand is the suggestion that the mechanism may have changed, and perhaps may have always been in Rome's favour. Taken together, both this and Richardson's essay demonstrate how careful a reader of the ancient texts Gentili was.

Panizza offers a reading of de armis Romanis as a statement of just empire, bringing out ideas which are to be found in the larger work, de iure belli, and presenting the 'Roman empire as a legitimating topos.' Panizza suggests that the key driver of Gentili's project is the justification of a preventive war against the evil Spanish empire, a cause espoused by the dedicatee, the Earl of Essex. Remaining closely within Tuck's dichotomous account of a humanist versus a scholastic tradition, Panizza identifies the first book of de armis Romanis as being strongly scholastic. It is clear to Panizza that the second book carries much more of Gentili's own views – though interestingly the first book's speaker sounds a lot more like Gentili (he is named Picenus, and Gentili did indeed come from that region).

Lupher, the translator of de armis Romanis, is less convinced. His more cautious version lays more emphasis on the formal setting of the public life of the legal faculty at the University of Oxford, and in particular he finds the identification of Gentili with the anti-Roman accuser to be more significant, perhaps reflecting Gentili's earlier publication of the first actio. Lupher thinks that the emphasis of de armis Romanis is on critical method, and thus we have a choice; the Earl of Essex was the recipient either of an enjoyably lively discourse on how to read ancient texts, or a slightly convoluted attempt to justify pre-emptive war against Spain. A lot here must depend on whether we accept that Gentili was implacably opposed to the Spaniards.

Straumann expands on the theme of the centrality of Roman law to the de armis Romanis, and the essay starts from Richardson's point about the significance of imperium as legitimate power. Gentili's views on domestic sovereignty include the view that the power of the people had been transferred to the emperor, whose power, at least in accordance with the lex de imperio Vespasiani, was absolute. How did one become a princeps? Occupation of territory and the claims of natural law are critical. On this reading, Gentili claims that it is justifiable to respond to violation of the natural right to conduct commerce, or to extend control over areas not otherwise owned (res nullius). It is not justifiable simply to revert to the justification offered by a papal bull. In this, the attack on Spain is clear, since the papal license is not enough, and neither of the first two conditions was met. This conflation of natural law and the law of the Digest is a critical move; it is not strongly supported by argument but, once alleged, underpins on this reading much of Gentili's subsequent work, and shows that the scholastic / humanist dichotomy does not satisfactorily explain this work.

The second part begins with Malcolm's consideration of the significance of the Ottoman empire, which Gentili found more or less as disturbing as he did the Spanish. Paradoxically, Gentili holds that war is always justified against the Turk, but not for theological reasons but for legal ones. Gentili noted that there was legitimacy in the rule of the Sultan, and that religious toleration was a correct position. Even the refusal to admit preachers of the Christian faith was not a justification of war; whilst travel and trade arose from human nature, preaching did not. It is the pre- emptive necessity to oppose an expansionist empire which always justifies war against the Turk, and that is based on natural law. Malcolm then argues that having arrived at a separation between theology and politics, Gentili backslides when it comes to his refusal to countenance any treaty with the Turks – because they are infidels. That approach comes somewhere from his Protestantism.

Warren's argument is an excellent and important corrective to the overemphasis on prose writers. Thinking about Vergil in particular is not only evident in Gentili, it is a recurrent feature of humanist writing; Stephen Greenblatt's marvellous recent account, The Swerve: How the Renaissance Began (London 2011), has brilliantly demonstrated how the rediscovery of Lucretius set off a wave of often subversive inspirations. Schröder's discussion aligns Gentili more closely with Bodin's concept of the state and in particular the concept of a balance of power; he notes Gentili's replacement of a medieval theory of just war with that of justifiable enemy (iustus hostis), and suggests that Grotius' refinements, arising from the dreadful experience of the Thirty Years' War, insisted even more strongly on the concept of a binding natural law which should limit recourse to war.

Piirimäe's account adds further levels of complexity into the scholastic versus humanist argument and maintains a case for Gentili's having a radical doctrine of preventive war, arising from a neo-Roman concept of liberty which emerges as a call for non-domination in Europe as a whole, but which also draws on the scholastic notion of punitive war as a justifiable defence against future aggression by an enemy. Having made strong claims for Gentili's originality in decoupling just war from the notion of punishment, and redescribing political principles of morality in strictly legal terms, Piirimäe then argues that this position found few followers. Bacon and Hobbes turn out to be closest, but Grotius and Pufendorf leave far behind the radical case for preventive war. The use of a sense of fear as a justification for war is insufficient for the more recent theorists. For Lesaffer, and for Blane and Kingsbury, it is the consequences of Gentili's thoughts on restoring, managing and maintaining peace which are of interest. Gentili's thought is interestingly balanced between his expectation of clear cut military outcomes and the reality of highly uncertain wars, and between a justification of punishment after war coupled with a realization of the pragmatic necessity of avoiding the provocation of another round of violence.

The last four chapters consider international law; Benton looks at Gentili's later work on the legalities of the sea in which (interestingly) he defended Spanish interests. Waldron argues that Gentili's natural law can be derived from observation of universal consensual human practices, and that Gentili was right not to set natural law and positive law as opposites. Koskenniemi provocatively argues that 19th century claims that international law had a long prehistory appropriate ideas originally intended for internal statecraft. This truncates the history of international relations thought and suggests that that history may have an end, with the replacement of politics by economics as the critical outcome of natural law. Finally, Pagden returns to some of Waldron's arguments, claiming instead that Gentili saw Roman law and normative values as giving a timeless and unchanging content to natural law. This returns us to the beginning, and the inclusion of Richardson and Ando, reinforcing the sense of Gentili's critical value as an interpreter of antiquity.

This volume is – like the edition and translation – beautifully produced. It is a model enterprise, and the results are startlingly relevant and interesting. Gentili's work has a lasting interest, in its own right, and as an entry point to a still highly significant body of work. Classicists will find much here to influence and challenge their own readings of Ciceronian arguments regarding natural and positive law, and historians of thought now have no reason to overlook Gentili in favour of more famous successors. All told, a great success and a really significant contribution to scholarship.

Table of Contents

1. Introduction, Benedict Kingsbury and Benjamin Straumann
Part I A Just Empire: The Roman Model
2. The Meaning of imperium in the Last Century BC and the First AD, John Richardson
3. Empire and the Laws of War: A Roman Archaeology, Clifford Ando
4. Alberico Gentili's De armis Romanis: The Roman Model of the Just Empire, Diego Panizza
5. The De armis Romanis and the exemplum of Roman Imperialism, David Lupher
6. The Corpus iuris as a Source of Law Between Sovereigns in Alberico Gentili's Thought, Benjamin Straumann
Part II Gentili and the Law of War
7. Alberico Gentili and the Ottomans, Noel Malcolm
8. Gentili, the Poets, and the Laws of War, Christopher Warren
9. Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations, Peter Schröder
10. Alberico Gentili's Doctrine of Defensive War and Its Impact on Seventeenth-Century Normative Views, Partel Piirimae
11. Alberico Gentili's ius post bellum and Early Modern Peace Treaties, Randall Lesaffer
12. Punishment and the ius post bellum, Alexis Blane and Benedict Kingsbury
Part III Law Between, Beyond and Within Sovereigns
13. Legalities of the Sea in Gentili's Hispanica Advocatio, Lauren Benton
14. Ius gentium: A Defense of Gentili's Equation of the Law of Nations and the Law of Nature, Jeremy Waldron
15. International Law and raison d'état: Rethinking the Prehistory of International Law, Martti Koskenniemi
16. Gentili, Vitoria, and the Fabrication of a 'Natural Law of Nations', Anthony Pagden

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