Gentili, Grotius, and the Extra-European World
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Description
The modem textbook organization of the law of the sea, with its cascading zones of jurisdiction and its preoccupation with things that happen in the sea such as fishing, navigation, war, pollution, or scientific research, to some extent masks the connections of the subject with reasons for travelling across the sea, including commerce, evangelism, slavery, migration, and empire. Grotius' Mare Liberum, which was published in 1609 to contest the claims of Portugal and Spain arising in part from the sea-borne expeditions to the extra-European world commemorated by this conference, is a reminder of the close links between the developing law of the sea and the expansion of Europe into the extra-European world. The point is manifest even in the title of Mare Liberum: “The freedom of the seas or the right which belongs to the Dutch to take part in the East Indian trade.” This conference falls also on the 400th anniversary of Alberico Gentili's De Jure Belli (1598), a work which had considerable influence on Grotius but which in its own right merits study. I propose in this paper to consider the views of the extra European world held by these two foundational writers on the law of the sea and on what became international law. I will focus more attention on Gentili, who is less well known in part because of having been succeeded so quickly by Grotius. Alberico Gentili (1552-1608) was born in San Ginesio, a much more powerful and populous town then than now, in the Marche region east of the Apennines in central ltaly. He studied law in the Bartolist faculty at Perugia, then took up legal practice and scholarly pursuits in the Marche. The arrival of the Inquisition in San Ginesio and the investigation of the strong Protestant convictions of members of the Gentili family precipitated Alberico's abrupt departure with his father. Reaching England by 1580, he gradually established himself in Oxford, and was appointed Regius Professor of Law in 1587. After 1600 he became increasingly absorbed in legal practice in London, serving from 1605 until his death as an advocate for the government of Spain in the English courts. He produced numerous works on Roman law, and wrote tracts in controversies of theology and British constitutionalism, but his three books of most direct significance for international law are De Legationibus (1585) [DL], a work concerned with the law of embassies and the conduct of ambassadors that arose from his successful argument that the Spanish ambassador Mendoza ought to be expelled rather than criminally punished for plotting against Queen Elizabeth, De Jure Belli [JB], a work that began as three tracts prepared in 1588-89 during English debates on issues of war prompted by the Spanish Armada, and Hispanicae Advocationis (1613), a collection of legal opinions from his practice published posthumously by his brother Scipio. Hugo Grotius (1583-1645) was born in Delft, and had a precocious career in Dutch law, politics and intellectual life until his arrest in 1618 in a politico-religious controversy. After escaping from prison in 1621 he spent most of his career in Paris, latterly as Swedish ambassador to France. JB had considerable impact on Grotius in the composition of both De Jure Praedae (written in 1604-6, but essentially unknown until rediscovery of the manuscript in 1864) and De Jure Belli ac Pacis (1625) [JBP]. JBP was vastly more systematic, elegant, and philosophically rigorous than JB, and it is fair to say that JB has been to some extent in the shadow of JBP ever since. The contrast has been magnified by the importance of Grotius' contributions to theology, philosophy, history and letters, which have assured him a luminous position in the history of European thought to which Gentili's fame will not compare. Gentili's fortune revived in academia after 1870, aided by post-unification Italian enthusiasm for what Gentili could be made to symbolize, as well as the wider aspiration of international lawyers to craft an evolutionary history of the discipline and make its canonical texts available. But JB is probably seldom used by practitioners nor widely studied in universities. Nowadays it is scarcely cited as direct authority by international or national tribunals, whereas Grotius' work, while cited much less than in earlier epochs, is still periodically discussed.
Source Publication
Law of the Sea: The Common Heritage and Emerging Challenges
Source Editors/Authors
Harry N. Scheiber
Publication Date
2000
Recommended Citation
Kingsbury, Benedict, "Gentili, Grotius, and the Extra-European World" (2000). Faculty Chapters. 999.
https://gretchen.law.nyu.edu/fac-chapt/999
