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Ius gentium
LAURENS WINKEL
Ius gentium was a term of Roman law, first to
be found as such in the works of Cicero
(esp. Cic. Off. 3.69), but may have already
been an accepted technical term at the begin-
ning of the first century BCE. Ius gentium is to
be understood in at least three different ways.
The first and maybe oldest is as interregional
commercial law. In this meaning there is a link
with the creation of interregional commercial
legal protection by a Roman magistrate called
the praetor peregrinus, created at the end of the
First Punic War (242 BCE) possibly to protect
Roman external commerce with Sicilian city
states that were, from that moment on, no
longer under Carthaginian influence and
more and more under Roman influence. This
ius gentium was informal and gave birth, in the
contractual sphere, to a revolutionary new
form of contract that did not exist before, the
so-called consensual contract, concluded with-
out any formality where norms of informal
good faith (bona fides) prevailed. Most impor-
tant here was the contract of sale. Other con-
sensual contracts were lease-hire, mandate,
and partnership. Later some parts of the ius
gentium, especially the four consensual con-
tracts and the principle of good faith, might
have become so common that they came to be
considered, in classical Roman law, as belong-
ing to the law of Roman citizens (ius civile) as
well, although there is no unanimity among
modern scholars on this last point.
The second meaning is philosophical.
Natural law is either denoted as ius naturale
or as ius gentium. The philosophical meaning
of ius gentium as natural law is found explic-
itly at the beginning of the Institutes of Gaius,
an introductory work of an otherwise
unknown jurist of the second half of the sec-
ond century CE, a work that had an enormous
influence on later attempts at systematization
in law. For Gaius, the ius gentium was valid for
and shared by all human beings since they are
The Encyclopedia of Ancient History, First Edition. Edited by Roger S. Bagnall, Kai Brodersen, Craige B. Champion, Andrew Erskine,
and Sabine R. Huebner, print pages 35533554.
2013 Blackwell Publishing Ltd. Published 2013 by Blackwell Publishing Ltd.
DOI: 10.1002/9781444338386.wbeah13129
gifted with rational capacities. A link here
certainly exists with Stoic cosmopolitan ethics
and with ancient forms of rationalism. In the
introductory Institutes of the jurist Ulpian one
generation later, of which some excerpts sur-
vive in the Digest of Justinian, ius gentium is an
intermediate term between ius civile and ius
naturale (see Dig. 1.1.1.34). Here ius gentium
denotes a legal order of human beings, whereas
ius naturale includes also animals. It might
well be that this tripartite division in Ulpian
is an attempt to compromise between different
concepts of natural law already formulated in
ancient legal philosophy in the Stoic and
Peripatetic tradition.
The third meaning (and after Antiquity, the
more and more current) of ius gentium is
international law, already manifest in some
texts of later classical Roman law, for example,
characterizing the law concerning ambassadors
(Pompon. 37 ad Q.M. Scaevola, Dig. 50.7.18
(17), a text of the second century CE, but pos-
sibly going back to the important jurist
Quintus Mucius Scaevola, 82 BCE). This last
meaning was further developed in the Middle
Ages. In Hugo Grotiuss time (seventeenth cen-
tury) ius gentium had become the current Latin
term for international law. Law of nations is
a literal translation of ius gentium.
REFERENCES AND SUGGESTED READINGS
For the link of ius gentium and bona fides, see, on
the one hand, Wieacker, F. (1963) Zum Ursprung
der bonae fidei iudicia. Zeitschrift der Savigny-
Stiftung fur Rechtsgeschichte, Romanistische
Abteilung 80: 141; and on the other hand Norr,
D. (1991) Die Fides im romischen Volkerrecht.
Heidelberg. (idem (2005), Historiae iuris
antiqui 1777844. Goldbach.)
Kaser, M. (1993) Ius gentium. Vienna.
Older literature: Clementinus a Vlissingen, P.
(1940) De evolutione definitionis iuris gentium,
Studium historicojuridicum de doctrina iuris
gentium apud Auctores Classicos Saec. XVIXVIII.
Rome; Lombardi, G. (1946) Ricerche in tema di
ius gentium. Milan. (idem (1947) Sul concetto di
ius gentium, Milan.)
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Wagner, H. (1978) Studien zur allgemeinen Winkel, L. (1993) Einige Bemerkungen uber ius
Rechtslehre des Gaius (ius gentium und ius naturale und ius gentium. In Ius est ars boni
naturale in ihrem Verhaltnis zum ius civile). et aequi. Festschrift fur Wolfgang Waldstein:
Zutphen. 4439. Stuttgart.