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C h a p t e r 3 Empire and the Laws of war alberico gentili’s extraordinary work De armis Romanis takes the form of a pair of speeches, the first an indictment of the injustices committed by the romans in war, the second a speech of defense, on the justice of those same actions. The work lacks an introduction or conclusion in propria persona; the reader is thus left without guidance as to how to award the palm of victory. That said, gentili did not write in a spirit of postmodern indeterminacy. his concerns were rather source-critical: “it is necessary,” his first speaker insists, “that i consider their own histories suspect. for they openly admit that they were hostile to all those who stood forth as enemies of the romans” (De armis bk. 1, chap. 1, in david Lupher’s fine translation).1 how can one trust roman claims to have adhered to the laws of war—to have fought, in their terms, only wars that were just—when they can be shown to have lied about fundamental issues in their past? and what might one conclude about war and imperialism in general, when that most paradeigmatic of empires felt such shame, even before itself? gentili was far too sophisticated merely to accuse the romans of mendacity . on the contrary, he brings to bear upon the ancient sources a number of critical tools, some with distinct and important modern analogs. here i single out three, which will in altered form guide my own reconstruction and critique of the institutions invented at rome to actualize principles of justice in war.2 first, in reading ancient texts gentili distinguishes between “bare narrations of deeds and opinions that are added on,” and proposes mechanisms for adjudging the reliability and cogency of each. importantly, he does not allow one to claim that the romans lied only in their judgments but may be trusted in their facts. on the contrary, comparison even of roman texts reveals widespread disagreement about basic information; and some portion of that confusion must surely stem from invention (see especially bk. 1, chap. 38 Chapter 3 5). what more might one learn from Carthaginian sources, or any by “those other peoples with whom the romans had their disputes and wars?” “But i have access to nothing” from them, is the reply (bk. 1, chap. 1). Second, although gentili more or less accepted the historicity of the conceptual and institutional frameworks described in roman sources for adjudicating questions of justice in war, and in particular those concerned with declaring wars that were just and striking treaties that were fair, he recognized the scope such frameworks gave to interested manipulation: invented by the romans, their language and rules were regularly deployed in patently self-serving fashion. The aftermath of the battle of the Caudine forks, when the romans surrendered a roman general to their enemies, only to have him kick the roman ambassador and by that violation of ius gentium permit the romans to wage war “the more justly,” was only the most famous such case (bk. 1, chaps. 6–7). Third, gentili insisted again and again that the less robustly attested institutions of international law at rome might be understood in light of the categories and concepts of the civil law. The concept of restitution is a case in point (bk. 1, chap. 6). as i shall show momentarily, a demand for reparations lay at the heart of roman declarations of war, and the failure of rome’s opponents to give satisfaction made those wars just. But while roman sources expend much effort showing that such demands were made, received and rejected, they never entertain the question whether the demands were themselves just. gentili urges recourse in just that matter to the concept of restitution in private law; and on that understanding, his first speaker insists, roman wars were anything but just. gentili’s instincts on these issues were superb. and yet, modern formulations of his concerns, as well as the methods one might devise to address them, would naturally take a different form. as regards roman knowledge of the early roman past, for example, contemporary scholarship exhibits a deep and justified skepticism. to illustrate the magnitude of the problem, contemporary ancient historians generally rehearse the attested length of histories of rome written between the late third century b.c.e., when roman historical writing seems to have begun, and that of Livy, written between 30 b.c.e...

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