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In Roman law and legal traditions influenced by it, ius gentium or jus gentium (Latin for "law of nations" or "law of peoples") is the law that applies to all gentes ("peoples" or "nations"). It was an early form of international law, comprising not a body of statute law or legal code,R.W. Dyson, Natural Law and Political Realism in the History of Political Thought (Peter Lang, 2005), vol. 1, p. 127. but the customary law thought to be held in common by all in "reasoned compliance with standards of international conduct".David J. Bederman, International Law in Antiquity (Cambridge University Press, 2004), p. 85.
Ius gentium was regarded as a form of ius naturale, or natural law. Unlike ius civile, it applied to all persons and not only Roman citizens, as the rules of ius gentium could be derived from natural reason as innate in all of mankind.
Following the Christianization of the Roman Empire, canon law also contributed to the European ius gentium.Randall Lesaffer, introduction to Peace Treaties and International Law in European History from the Late Middle Ages to World War One (Cambridge University Press, 2004), pp. 5, 13. By the 16th century, the shared concept of the ius gentium disintegrated as individual European nations developed distinct bodies of law, the authority of the Pope declined, and colonialism created subject nations outside the West.Randall Lesaffer, "Peace Treaties from Lodi to Westphalia", in Peace Treaties and International Law in European History, p. 34.
As a form of natural law, the ius gentium was regarded as "innate in every human being", a view that was consonant with Stoic philosophy.Winkel, "The Peace Treaties of Westphalia", p. 225; Marcia L. Colish, The Stoic Tradition from Antiquity to the Early Middle Ages (Brill, 1980), p. 360 et passim. CiceroCicero, Partitiones oratoriae 37.130. distinguished between things that are written and those that are unwritten but upheld by the ius gentium or the mos maiorum, "ancestral custom".A. Arthur Schiller, Roman Law: Mechanisms of Development (Mouton, 1978), pp. 254–255. In his treatise De officiis, he regards the ius gentium as a higher law of moral obligation binding human beings beyond the requirements of civil law.Cicero, De officiis 3.17.69; Colish, The Stoic Tradition, p. 150. A person driven into exile, for instance, lost his legal standing as a Roman citizen, but was supposed to retain the basic protections extended to all human beings under the ius gentium.Clifford Ando, Law, Language, and Empire in the Roman Tradition (University of Pennsylvania Press, 2011), p. 29.
The 2nd-century Roman jurist Ulpian, however, divided law into three branches: natural law, which existed in nature and governed animals as well as humans; the law of nations, which was distinctively human; and, civil law, which was the body of laws specific to a people. Digest 1.1.1.4; Tierney, The Idea of Natural Rights, p. 136. Slavery, for instance, was supported by the ius gentium, even though under natural law all are born free ( liberi). Digest 1.1.4; Tierney, The Idea of Natural Rights, p. 136. In this tripartite division of law, property rights might be considered a part of the ius gentium, but not of natural law. Digest 1.1.5; Tierney, The Idea of Natural Rights, pp. 136–137. Hermogenianus, a Roman jurist of the second half of the 3rd century, described the ius gentium as comprising wars, national interests, kingship and sovereignty, rights of ownership, property boundaries, settlements, and commerce, "including contracts of buying and selling and letting and hiring, except for certain contractual elements distinguished through ius civile". Digest 1.1.5; Winkel, "The Peace Treaties of Westphalia", pp. 225–226. The ius gentium was thus in practice important in facilitating commercial law.Adda B. Bozeman, Politics and Culture in International History from the Ancient Near East to the Opening of the Modern Age (Transaction Publishers, 2010, 2nd ed., originally published 1960 by Princeton University Press), p. 210.
While the terms of peace treaty might be said to fall broadly within the ius gentium, there was no framework of international law per se with which a treaty had to conform. As gentes were brought under Roman rule, Roman law became in effect international law.After the Battle of Pydna in 168 BC, no Western power was equal to that of Rome. Persia was thereafter the only other major power with which Rome was in regular contact. Baldus, Vestigia pacis, pp. 111–112; Olivier Hekster, Rome and Its Empire, AD 193–284 (Edinburgh University Press, 2008), p. 47. Local laws remained in force as long as they did not come into conflict with Roman law; this compatibility was understood as reflecting the underlying ius gentium.Bozeman, Politics and Culture in International History, pp. 208–209. The praetor assigned to foreign affairs ( praetor peregrinus) is thought by many scholars to have played an important role in extending Roman civil law to the gentes.T. Corey Brennan, The Praetorship in the Roman Republic (Oxford University Press, 2000), p. 134; Dyson, Natural Law and Political Realism, p. 127; Bozeman, Politics and Culture in International History, p. 208. Laws originally pertaining to matters of contract law among Roman citizens, such as property transfers and manumission, were thus "internationalized" among the gentes.Schiller, Roman Law, p. 529; Bozeman, Politics and Culture in International History, pp. 206–208. Questions of "international law" might arise in relation to individual grants of citizenship, and whether these accorded with treaty.Baldus, Vestigia pacis, pp. 135–136. Because there was no generally accepted principle of international law, controversy might also arise over whether "Rome was bound by an agreement concluded by a field commander without approval of the Senate—typically an armistice concluded in distress and on unfavourable terms."Baldus, Vestigia pacis, p. 132.
A key passage pertaining to what Romans understood as "international law" is presented by Livy, as spoken by an envoy of King Antiochus:Baldus, Vestigia pacis, pp. 114–115.
There were three kinds of treaties ( foedera, singular foedus), he said, by which states and kings concluded friendships ( amicitiae): one, when in time of war terms ( leges) were imposed upon the conquered; for when everything was surrendered to him who was the more powerful in arms, it is the victor's right and privilege to decide what of the conquered's property he wishes to confiscate; the second, when states that are equally matched in war conclude peace and friendship on terms of equality; under these conditions demands for restitution are made and granted by mutual agreement, and if the ownership of any property has been rendered uncertain by the war, these questions are settled according to the rules of traditional law or the convenience of each party; the third exists when states that have never been at war come together to pledge mutual friendship in a treaty of alliance; neither party gives or accepts conditions; for that happens when a conquering and a conquered party meet.Livy, 34.57.7–9.
Ius gentium is occupation, construction, fortification, wars, captivity, the right of regaining citizenship after captivity, slavery, treaties, peace, armistice, the inviolability of ambassadors, the prohibition of mixed marriages; and it is the ius gentium because nearly every nation uses it.Isidore, Etymologies 5.6 (ius gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, indutiae, legatorum non violandorum religio, conubia inter alienigenas prohibita. Et inde ius gentium, quia eo iure omnes fere gentes utuntur); Winkel, "The Peace Treaties of Westphalia," p. 226.
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