Alberico Gentili (1552–1608)

Oxford Handbooks Online

Alberico Gentili (1552–1608)  
Merio Scattola
The Oxford Handbook of the History of International Law
Edited by Bardo Fassbender and Anne Peters

Print Publication Date: Nov 2012 Subject: Law, History of Law, International Law
Online Publication Date: Dec 2012 DOI: 10.1093/law/9780199599752.003.0048

Abstract and Keywords

This chapter examines Alberico Gentili’s life and teaching; Gentili and the history of
international law; and Gentili and the doctrine of war. In Oxford, Alberico Gentili wrote a
large number of works, which can be divided in four main groups: treatises on topics of
the civil law, law of nations, issues pertaining to political theology, and various questions
of legal erudition. His major works include Three Books on the Law of War, Two Books on
the Roman Armies, and Two Books of Spanish Attorneyship.

Keywords: international law, war doctrine, legal erudition, Law of War

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Alberico Gentili (1552–1608)

1. Life and Teaching

Alberico Gentili was born in 1552 in San Ginesio in the Papal States, and after studying
civil law in Perugia, he lived as city attorney in that town. Suspected of heresy, he fled in
1579 to the Holy Roman Empire and settled in 1580 in London, starting a new career as
attorney. Here he was introduced to Robert Dudley, and under his protection he began
teaching in 1581 at St John College in Oxford, where he was appointed regius professor
in 1587.

In Oxford, Alberico Gentili wrote a large number of works, which can be divided in four
main groups. The first group comprises treatises on topics of the civil law, such as his
collection of ten academic dissertations, his commentary on the title of the Codex about
magicians, and his commentary on the title On Meaning of Words. All these works
followed and defended the mos Italicus learned in Perugia. Gentili dedicated a second
group of writings to the law of nations. He began in this field with the Three Books on
Embassies (1585), which were also concerned with the case of Bernardino de Mendoza (c.
1540–1604), the Spanish ambassador expelled in 1584 for having being involved in a plot
against Elizabeth I. In 1589, after the attack of the Armada invincible, Gentili published
three dissertations on the law of war that he resumed in 1598 in his major work, the
Three Books on the Law of War. He completed the discussion on this topic in 1599 with
his Two Books on the Roman Armies, where he defended the assumption that the ancient
Romans always fought just wars.

(p. 1093) Writings of a third kind dealt with issues pertaining to political theology, as they
considered the duty of the king who had to mediate a transcendent order into a human
commonwealth.1 Gentili gave a first assertion of the royal power in the disputation On the
Prince, included within the ten disputations published in 1587.2 He expanded his
argument in 1605 in the Three Royal Disputations, where he explained that the king had
an absolute power, that the three kingdoms of Britain could be legitimately united, and
that the subjects had no right to resist the power of the English king. On the issue of the
resistance to a legitimate king, he published a series of ten disputations commenting two
titles of the Codex Iustinianus. With these political writings, Gentili took position in favour
of James I and his programme of a Eusebian monarchy, against both the Presbyterian idea
of a compact and the Catholic theory of an indirect power of the pope, and entered into a
large polemical stream which dominated the European discussion in the early 17th
century.

The fourth group of works comprises a large number of writings dedicated to various
questions of legal erudition. Gentili wrote on the books of the legal collections, on the
language of the Roman law, on the names of historical periods, on the morality of the
actors, and on Biblical issues.

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Alberico Gentili (1552–1608)

He held the chair in Oxford until the end of his life, but from 1590 he was also active at
the Court of Admiralty in London, which applied continental civil law. From 1605 to 1608
he served as official attorney of the Spanish embassy and from this experience wrote his
third great work on law of nations, the Two Books of Spanish Attorneyship, published
posthumously in 1613.

2. Gentili and the History of International Law

During his life Gentili was not as famous as his younger brother Scipione and was quickly
forgotten after his death. He was rediscovered in 1874 by Thomas Erskine Holland
(1835–1926), who provided a new edition of the Law of War. Since then he has been
regarded as a ‘father of the international law’, although this is probably better expressed
as a ‘father of the law of nations’. As opposed to the modern understanding of an
international law established through rational agreement between free and independent
states,3 Gentili regarded the law of nations as a form of private law, (p. 1094) which
comprised those common rules used by people of different nations, and applied also
between commonwealths. Secondly, it referred to a natural or divine order expressed in a
set of innate ideas. Thirdly, it operated with ontologically independent rules, which could
be interpreted only in topological argumentation. In this sense Gentili was part of a legal
tradition that stretched back to ancient and medieval jurisprudence and theology,
reached its highest point with Hugo Grotius (1583–1645) and was then replaced, totally
or partly, by the modern teaching of natural law. Nevertheless during the 16th century
arose the necessity of identifying a set of rules within this comprehensive law of nations
pertaining only to commonwealth, that is, a ‘public’ law of nations beside the ‘private’
one. This project was already underway, begun by the Scholastic theologians in
Salamanca, who had identified some specific problems in the relationships among nations
and developed a particular literary form in order to transmit their teaching.

This theological tradition of ‘public’ law of nations had two main faults in the eyes of
Gentili. First of all, it was developed from materials of the Catholic tradition, which could
not fit a kingdom fighting on one side against the papacy and Spain, and on the other side
against Presbyterians and Puritans. Secondly, it was produced by a theological
scholarship which had its own agenda of questions and answers, its own authorities, and
its own codes and media, as in early modern times political and juridical discussions were
performed within clear detached communities of discourse.4

Gentili was to build an extensive doctrine about the ‘public’ law of nations by means of
the legal tradition. Actually, the topic of war was well known in late medieval
jurisprudence, which had produced a number of treatises on this subject gathered
together in the great legal collections of the 16th century. But this literature treated
single parts or actors and could not depict war in all its aspects. Also, Roman
jurisprudence presented various rules of war in the Corpus iuris, and finally, a large

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Alberico Gentili (1552–1608)

number of observations could be made simply by the scrutiny of ancient historiography,

which showed the Romans at war in practice and offered a basis for a comprehensive
doctrine, as was developed some decades later by Hugo Grotius.

Gentili based his ‘public’ law of nation upon these three traditions, but he did not propose
a ‘systematic’ theory since he lacked an epistemic unitary point of view, such as was
developed later on within modern natural law. He organized his law of nations as a
collection of main questions, unified within a topical distribution and not dependent on a
single principle. Thus he treated law of embassy as a speculum legati, he discussed law of
war in a triadic scheme that roughly followed the development of a conflict, and he
presented the law of sea through an independent scheme based on legal practice.

(p. 1095) 3. Gentili and the Doctrine of War

Already in early dissertations, Gentili clearly stated his intention to construct a political
doctrine with arguments of the juridical tradition. The second dissertation on the royal
power clarifies at the beginning that this topic is going to be treated using the rules of
Roman law, omitting all philosophical arguments,5 especially those of John Case, Gentili's
colleague in Oxford, who taught Aristotelian politics and defended opposite views.

Even more explicit are the opening pages of the Three Books on the Law of War. Here
Gentili claims that all philosophers have completely ignored the topic of war because they
sought the good life within a single commonwealth, and did not explain the rights and
duties among enemies. These writings presume the existence of a greater community, the
society of the whole mankind,6 which was thinkable only when European societies, living
according to Roman or common law, came into direct touch with a number of nations
living according to different customs. What law could regulate both European and extra-
European countries? A kernel in the civil law ought to exist that was valid both for
European and non European populations. Gentili solved this problem answering that it is
possible that some rules, although they appear to us as universal und eternal, have been
forgotten to some extent.7 So the same law exists that rules over the whole world,
explicitly or implicitly.

The ancient Romans had a complete science of this law. They applied it when they dealt
with foreigners and enemies, and they preserved it in the Libri fetiales. Unfortunately this
knowledge disappeared since the end of the republic, and only Justinian saved some
isolated pieces of it. The lawyers today can reconstruct such a lost law, preserved in the
Roman jurisprudence and testified in the histories, applying those legal first ideas to
historical materials, and so they can establish a new version of the old ‘public’ law of
nations.8

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Alberico Gentili (1552–1608)

On these premises Gentili offered in the Three Books on the Law of War a collection of all
the arguments gathered by the legal tradition. He insisted on the principle that war is
always an action of justice; he defined war as ‘a just conflict with public armed forces’,9
and stressed the three concepts of ‘armed’, ‘public’, and ‘just’.

Justice of war is explained through the four Aristotelian causes, which supply the pattern
for the whole treatise. Chapters 11–6 of the first book describe the prince as the efficient
cause, whereas the remaining chapters 7–25 show the material cause, that is, the reasons
of fighting a war. The second book is dedicated to the (p. 1096) formal cause, or the right
way of making war, and the third book explains its final cause, its conclusion, and the
following peace.10 Particular attention is paid to the reasons for waging war, which must
always be suggested by true justice. Only defence can be a true reason of war, and it can
be thought both as a reaction against an unjust attack or as claim of a right that was
unjustly taken away or refused.11 Religion can in this sense never be a just cause of war,
and divine wars were possible only in ancient time, when God governed over His people
and spoke directly to them. Nevertheless religion can be invoked by a king against his
subjects when they dissent from the public cult and rebel against the legitimate
magistrate, because the power to determine the religion of a country pertains only to the
king.12

Bibliography

Recommended Reading

Gentili, Alberico De iuris interpretibus dialogi sex (Wolfius London 1582).

Gentili, Alberico Lectionum et epistolarum, quae ad ius civile pertinent, libri IV (Wolfius
London 1583–84).

Gentili, Alberico De legationibus libri tres (Vautrollerius London 1585).

Gentili, Alberico Disputationum decas prima (Wolfius London 1587).

Gentili, Alberico De iure belli libri tres (1st edn 1598, Antonius Hanau 1612).

Gentili, Alberico De armis Romanis Libri duo (Antonius Hanau 1599).

Gentili, Alberico Ad titulum Codicis De maleficiis et mathematicis et ceteris similibus

commentarius (Antonius Hanau 1604).

Gentili, Alberico Regales disputationes tres: I. De potestate regis absoluta; II. De unione
regnorum Britanniae; III. De vi civium in regem semper iniusta (Vautrollerius London
1605).

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Alberico Gentili (1552–1608)

Gentili, Alberico In titulos Codicis Si quis Imperatori maledixerit, Ad legem Juliam

maiestatis disputationes decem (Antonius Hanau 1607).

Gentili, Alberico Hispanicae advocationis libri duo (Antonius Hanau 1613).

Gentili, Alberico In titulum Digestorum De verborum significatione commentarius

(Aubrius Hanau 1614).

Benedictis, Angela de ‘Gentili, Alberico’ in Mario Caravale (ed) Dizionario biografico degli
italiani (Istituto dell’Enciclopedia italiana Roma 1999) vol 53, at 245–51.

Haggenmacher, Peter ‘Grotius and Gentili. A Reassessment of Thomas E. Holland's

Inaugural Lecture’ in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds) Hugo
Grotius and International Relations (Clarendon Press Oxford 1990) 133–76.

Minnucci, Giovanni Alberico Gentili tra mos Italicus e mos Gallicus. L’inedito commentario
Ad legem Iuliam de adulteriis (Monduzzi Bologna 2002).

Molen, Gezina van der Alberico Gentili and the Development of International Law: His
Life, Work and Times (2nd edn Sijthoff Leyden 1968).

Panizza, Diego (ed) Alberico Gentili. Politica e religione nell’età delle guerre di
(p. 1097)

religione (Giuffrè Milano 2002).

Scattola, Merio ‘Scientia Iuris and Ius Naturae. The Jurisprudence of the Holy Roman
Empire in the Seventeenth and Eighteenth Centuries’ in Damiano Canale, Paolo Grossi,
and Hasso Hofmann (eds) A Treatise of Legal Philosophy and General Jurisprudence
(Dordrecht Springer 2009) vol 9 (A History of the Philosophy of Law in the Civil Law
World, 1600–1900) 1–41.

Notes:

(1) M Scattola Teologia politica (Il Mulino Bologna 2007).

(2) A Gentili Disputationum decas prima (Excudebat Iohannes Wolfius London 1587) at 34.

(3) A Verdross Völkerrecht (Springer Wien 1955) at 34–9.

(4) M Scattola Krieg des Wissens—Wissen des Krieges (Unipress Padova 2006) at 36–50.

(5) Disputationum decas prima (n 2) 32.

(6) Gentili De iure belli libri tres (Antonius Hanau 1612) book I, ch 1, at 2.

(7) ibid 8–10.

(8) ibid 4.

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Alberico Gentili (1552–1608)

(9) ibid ch 2, at 17.

(10) ibid ch 7, at 55–6.

(11) ibid ch 5, at 45.

(12) ibid ch 10, at 66–78.

Merio Scattola

Merio Scattola teaches history of political ideas at the University of Padua. He

published monographs and articles on natural law, political theology, and history of
political doctrines.

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