Jump to ContentJump to Main Navigation
The Roman Foundations of the Law of NationsAlberico Gentili and the Justice of Empire$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 24 August 2019

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

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

Jeremy Waldron (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199599875.003.0014

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

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .