McGill Law Journal ~ Revue de droit de McGill
BOOK REVIEW
Alberico Gentili, The Wars of the Romans: A Critical Edition and
Translation of De armis Romanis, ed by Benedict Kingsbury & Ben-
jamin Straumann, translated by David Lupher (Oxford: Oxford Uni-
versity Press, 2011).
Benedict Kingsbury & Benjamin Straumann, eds, The Roman
Foundations of the Law of Nations: Alberico Gentili and the Justice
of Empire (Oxford: Oxford University Press, 2011).
Martin Loughlin, Foundations of Public Law (Oxford: Oxford Uni-
versity Press, 2010).
Mark Antaki *
Oxford University Press has recently released three books that, as
their titles indicate, explicitly address the foundations of law. Founda-
tions of Public Law is penned by Martin Loughlin;1 it builds on and deep-
ens his earlier work, particularly The Idea of Public Law.2 It seeks to pro-
vide an account of the emergence and the characteristics of public law,
the modern successor to the medieval fundamental law; this public law
constitutes, according to Laughlin, the code of an autonomous public
sphere tied to the intrinsically modern idea of the state.3 Jointly edited
by Benedict Kinsbury and Benjamin Straumann, The Roman Founda-
tions of the Law of Nations: Alberico Gentili and the Justice of Empire
emerges from the History and Theory of International Law Program at
NYU Law School. By way of the work of Alberico Gentili, its fifteen con-
tributions consider the extent to which early modern thinking about the
law of nations and imperialism was influenced by the ideas and the his-
torical record of the Roman Empire.4 The work is accompanied by the
* Associate Professor, Faculty of Law, McGill University. I would like to thank Zain Naqi
for his invaluable editorial assistance.
Citation: (2012) 57:4 McGill LJ 1009 ~ Rfrence : (2012) 57 : 4 RD McGill 1009
Mark Antaki 2012
1 Martin Loughlin is a professor of law at the London School of Economics.
2 Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2004).
3 Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010) at
8.
4 Benedict Kingsbury & Benjamin Straumann, eds, The Roman Foundations of the Law
of Nations: Alberico Gentili and the Justice of Empire (Oxford: Oxford University Press,
2011) at xiii. This is the description given by the editors themselves.
1010 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
first English-language translation and critical edition of Gentilis De
armis Romanis.5
To inquire into foundations is to inquire into things we take for
granted but without which we could not live in the world as we do. Most
often, inquiring into foundations requires that we rethink how we live,
how we talk about how we live, and the relationship between the two, the
relations between our practices and our discourses. Loughlin explicitly
casts his long, dense historical and theoretical project6 in relation to re-
cent developments in the British system that require that the British re-
connect with the mainstream European tradition of public law to address
foundational questions.7 The questions he is most interested in reviving
are questions of right relating to the conferral of authority and legitima-
cy on modern governmental orderingthese being the proper subject of
fundamental or public law.8 In particular, he claims that the British
must revisit the standard belief that following the Revolution of 1689
the concept of fundamental law was abandoned and replaced by the claim
that there is only one true concept of law: the ordinary law proclaimed by
Act of Parliament, to which all allegiance is owed.9 Indeed, he is keen to
resist the equation of fundamental law with the ordinary (common) law,
which leads inexorably down the path towards judicial supremacism
the conviction that, as authoritative interpreters of ordinary law, the judi-
ciary must also act as guardians of fundamental law.10
The unfortunate result of the conflation of ordinary and fundamental
law is the gradual obscuring of what is truly fundamental about funda-
mental law. That is to say, any consideration of law as an expression of
the constitutive principles of right-ordering11 is effectively bracketed out
in favour of a positivistic conception of law for which the authority of
constitutional arrangements [remain] unquestioned12 and beyond the
boundaries of juristic knowledge.13 Accordingly, Loughlin conceives of his
5 Alberico Gentili, The Wars of the Romans: A Critical Edition and Translation of De
armis Romanis, ed by Benedict Kingsbury & Benjamin Straumann, translated by Da-
vid Lupher (Oxford: Oxford University Press, 2011). Note that David Lupher is also a
contributor to Kingsbury & Straumann, ibid.
6 Loughlins book counts 515 pages, including the index.
7 Loughlin, supra note 3 at 6.
8 Ibid at 2.
9 Ibid at 3-4.
10 Ibid at 6.
11 Ibid at 9.
12 Ibid at 5.
13 Ibid at 4.
BOOK REVIEW 1011
project as, at least in part, an exercise in retrieval:14 his introduction is
fittingly titled Rediscovering Public Law.15 His exercise in retrieval re-
quires that we identify and call into question certain of our own habits:
the inability (at least in English) to distinguish droit from loi (and lex
from ius); disciplinary fragmentation and the related shrinking of the le-
gal universe; the (positivist) tendency to avoid questions of authority in
preference to those of validity; and the (liberal) tendency to conceive of
law as a limit on power.
Loughlins work, in my words, aims to show an ontological priorityin
modern timesof a prudential discourse of political right16 to positive
law narrowly understood. Indeed, he frames his project with the help of
Marcel Gauchets The Disenchantment of the World: A Political History of
Religion17 and identifies the disentwining of the political from the reli-
gious (however imperfect) as the condition precedent for both modernity
and the emergence of political right in early modern European discourse.
As the political realm comes to be seen as an autonomous sphere, medi-
eval fundamental law is transformed into modern public law. To see pub-
lic law as merely an aspect of positive law (e.g., the branches of adminis-
trative or constitutional law) is thus to forget the important transfor-
mation to the political discourses and forms we now take for granted and
to ignore the enduring relevance of the juristic thought that flourished
from the late-sixteenth to the early-nineteenth centuries.18 In this light,
Loughlins book is one for jurists, rather than simply lawyers; accordingly,
it draws on an extensive and impressive array of thinkers. Such figures as
Bodin, Hotman, Rousseau, Kant, Fichte, and Hegel figure prominently in
his account of the origins and formation of public law.19 They also find
their way into his account of its fundamental concepts: state, constitution,
and government, in which we also find many other thinkers in the Anglo-
American and German traditions (e.g., Schmitt, Heller, and Jellinek).20
Whereas the sixteenth through eighteenth centuries appear founda-
tional of our times for Loughlin, the contributors to The Roman Founda-
tions of the Law of Nations turn to Roman law as the place where the
writers of sixteenth, seventeenth, and early eighteenth centuries [sought]
14 Ibid at 10.
15 Ibid at 1.
16 Ibid at 11 [emphasis added].
17 Marcel Gauchet, The Disenchantment of the World: A Political History of Religion,
translated by Oscar Burge (Princeton, NJ: Princeton University Press, 1997).
18 Loughlin, supra note 3 at 9.
19 Ibid at Parts I-II.
20 Ibid at Parts III-V.
1012 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the legal maxims and methods, the principles governing treaties or em-
bassies or jurisdiction or property, and the broader ideas of justice in the
inception, fighting, and conclusion of war, which they built into a law of
nations of enduring importance.21 Their book is explicitly concerned with
the foundations of the (early modern) law of nations and not with those
of (contemporary) international law. Indeed, unlike Loughlins framing of
his project, theirs makes little reference to todays world despite the ongo-
ing pertinence of many of the themes explored, such as making sense of
sovereignty, just war, and preemptive strikes. Nevertheless, the volume
as a whole can be grasped as revisiting what one contributor, Martti
Koskenniemi, calls [t]he mythical origin of modern international law.22
If Loughlins work is a univocal23 and sustained exercise in the re-
trieval of political right, the Kingsbury and Straumann book is a multi-
vocal24 lesson on the importance, the difficulties, and the promise of exer-
cises of retrieval. As the editors explain, their book aims to enrich the ex-
isting scholarship on ideas about just warfare and empire in this [six-
teenth to early eighteen century] period by extending it beyond the domi-
nant lines of recent analysis of early modern theories of natural law and
natural rights.25 Accordingly, the very choice of Gentili as a focal point
signals an effort to retrieve a thinker and a body of work usually passed
over in favour of (or at least neglected relative to) the likes of Grotius,
Hobbes, and Pufendorf. The various contributors disagree about how nov-
el Gentili was, about how close he is to us, and about the kind of work we
must do to understand him. As a result, they also disagree about the use-
fulness of certain categories and distinctions, such as that between hu-
manists and scholastics, in the exercise of properly understanding and re-
trieving Gentili.
However, the Roman Foundations of the Law of Nations is not simply
about the importance, the difficulties, and the promise of retrieving Gen-
tili and other early modern thinkers; it also, and crucially, problematizes
our own exercises in retrieval by reminding us that the sixteenth to eight-
eenth century thinkers we turn to as our intellectual and existential
foundations were themselves engaged in their own exercises of retrieval.
21 Kingsbury & Straumann, supra note 4 at 1.
22 Ibid at 297. See Martii Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall
of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001) at 2
(where Koskenniemi locates the so-called origins of international law in the late nine-
teenth century).
23 It is univocal because it has a single author, but certainly not because it is oblivious to
the diversity of historical voices.
24 It is multivocal because it has multiple authors.
25 Kingsbury & Straumann, supra note 4 at 18.
BOOK REVIEW 1013
This problematization emerges both in the Roman Foundations of the
Law of Nations, particularly in its first part on the Roman Model of A
Just Empire26 but also, and especially, in the welcome translation of Gen-
tilis De armis Romanis. As Kingsbury and Straumann explain in their in-
troduction to David Luphers translation, Der armis Romanis, first pub-
lished in 1599, is comprised of two books, one prosecuting Roman imperi-
alism and one defending it, each written in different voices. As they em-
phasize, [t]he contentions between the prosecutor of Book I and the de-
fender of Book 2 are frequently framed not as disagreements about what
norms apply; rather, the disagreement is often empirical, about historical
events and the trustworthiness of certain historians and other authors.27
Gentili, then, appears to self-consciously thematize the difficulties of his
own exercise of retrieval.
Both volumes reveal how early modern thinking about law, either
within or between newly emerging sovereign states, cannot be divorced
from an inquiry into what it means to see like a state,28 and hence into
the historicity and contingency of politics, law, and political and legal
forms. Relatedly, they show how an unwillingness to acknowledge this
historicity and contingency can cause us to be unaware of our founda-
tions such that we misconceive what our own foundational questions
might be. While written from different points of view, they are very com-
plementary.
26 Ibid at 19.
27 Gentili, supra note 5 at xii.
28 The reference is to James C Scott, Seeing Like a State: How Certain Schemes to Improve
the Human Conditions Have Failed (New Haven, CT: Yale University Press, 1998).
