1. Introduction
Why do we choose specific origin stories from the past to make sense of our present? Why do we believe it relevant to teach the Melian Dialogue to International Relations (IR) students, and to make aware international law students of an old sixteenth century theologian from Spain named Francisco de Vitoria? Or of a prodigious young Dutch man who hid in a chest of books to escape from the castle in which he was imprisoned, and picturesquely ran off to Paris to write De iure belli ac pacis? Interest in the study of these historical precedents goes beyond the mere genealogical concern about the origins of the discipline they are supposed to be foundational of. Rather, as the editors pointed out in the introduction to this collection, exhuming these old personalities and events from the grave is often a proxy for the type of stories we want to tell about ourselves, and the values that we deem to be at the core of the disciplines we perform as scholars.
It is interesting to note that while IR scholars are inclined to evoke, together with the usual figures of Grotius, Hobbes, and Kant, classical authors like Thucydides when looking for conceptual precedents, international lawyers tend to look to the early modern period in search for their origin stories. While the story of international law’s detachment from the influence of classics still has to be told, Footnote 1 recent scholarship has shown that classical antiquity played a fundamental role in fabricating the very language of jus gentium and, more generally, in shaping the intellectual development of international law. Footnote 2
Alberico Gentili (1552–1608) and Hugo Grotius (1583–1645) were profoundly influenced by the lessons taught by sixteenth century humanism. Footnote 3 These authors were not only tremendously influential in using classical history as a model to invent new legal tools for the international legal discourse; in doing so, they were also actively engaged in a discussion and re-interpretation of the literary canons within which they were immersed. Gentili published a defense of the value of poetry, as well as a legal-literary commentary to Virgil’s Eclogues; Footnote 4 Grotius’s activity as a poet, translator, editor, and his reputation as an exquisite philologist, brought him as much popularity as his legal works. Footnote 5
In what follows, I will show how literary imitation qualifies as a specific mode of transmission of jus gentium texts and ideas. Focusing on this specific angle allows us to see how authors such as Alberico Gentili and Hugo Grotius were trying to construct a canon for the law of nations based on literary ideas of canonical authority. In their texts, Gentili and Grotius quote authorities from the past to establish and promote their own authority and advance novel legal arguments. Such arguments are transmitted through marginalia, the printed annotations we find abundantly in the margins of their texts, and that constituted for at least two centuries the argumentative structure of how jus gentium was written. Marginalia are often, regrettably, excised from contemporary editions. Footnote 6 Far from being parades of erudition (as Vattel will later describe them Footnote 7 ), these references constitute the scaffolding upon which the legal argument is constructed in the main text. Sometimes they contain sources which are quoted as theoretical handholds; other times they are quoted to refer to a wider intellectual debate that is only hinted at in the text, and to which the reader is referred for further details and context. If one approaches such texts by unpacking marginal references, they will soon realize that the story of jus gentium cannot be separated from the material aspects of its cultural transmission. A parallel legal history unfolds between the lines of marginalia, a story made of textual interpretations, omissions, and intentional interpolations. Footnote 8 Jus gentium, thus, becomes visible through the fabric of intertextuality. Its story can be told as a cumulative process of selection and emendation of literary canons.
Finally, I will offer a concrete example of this textual machinery at play, namely Gentili’s and Grotius’ discussion of the same passage from Virgil’s Aeneid. The passage in question, known by literary historians as the ‘Helen episode’, is a case of contested Virgilian authority. The ‘Helen episode’, regardless of its textual reliability, is used by Gentili and Grotius to make a specific claim: that women cannot legally qualify as enemies under the law of nations. Such a story is particularly revealing, as it allows us to acknowledge the jurisgenetic role of canons, as well as their powerful role in the production of arguments of order that became constitutive of international law.
2. Imitation, the construction of the canon, and marginalia: Jus gentium as ‘intertextual law’
Imitation is a fundamental part of human existence. By imitating our surroundings, we absorb behaviours, learn social habits and customary rules, recreate sounds around us and, thus, appropriate them. Everyone with a nephew, niece, or child in the parrot-stage of their existence will relate. It is also through imitation that we create new forms of art based on those which inspired us. The most revered masterpieces of European literature are themselves imitations of past works: Virgil imitates Homer in his Aeneid, Dante imitates Virgil in his Divina Commedia. More contemporary examples include Elif Batuman’s novel The Idiot, a clear echo to Dostoevsky’s masterpiece; or Rachel Cusk’s recently published Second Place, an explicit tribute to Lorenzo in Taos, Mabel Dodge Luhan’s memoir of the time D. H. Lawrence spent at her house in Taos, New Mexico.Footnote 9
In his famous The Light in Troy, Thomas Greene describes the Renaissance as the ‘era of imitation’.Footnote 10 For authors like Francesco Petrarca, imitating writers of the past was a way to retrieve a lost world that was too far away and full of intermediators to be fully grasped in its authenticity. Awareness of this distance was so painful that it produced a feeling of longing described by Greene as ‘historical solitude’.Footnote 11 This intellectual posture hides a very well-known conundrum. On the one hand, Greene writes, ‘not to remember is intolerable because a past is formative: visibly or obscurely, it shapes us, filling our names with content and setting the conditions of our freedom’.Footnote 12 At the same time, ‘if each repetition involved a total transformation, a word as such could not exist. Communication would always fail. Even if the word survived for a generation, no tradition would be conceivable, certainly no imitation’.Footnote 13 In imitating the past, poets are doomed to walk a fine line between ‘tradition’ and ‘individual talent’, as argued by T. S. Eliot in his famous 1919 essay.Footnote 14 In Eliot’s words, ‘what happens when a new work of art is created is something that happens simultaneously to all the works of art that preceded it’.Footnote 15 From this perspective, the power and influence exerted by tradition is so overbearing that it turns the poet into, as it were, an impersonal entity voicing a much more organic tradition from which he seems to have no escape – a problematic aspect of Eliot’s account that Harold Bloom will later criticize in his The Anxiety of Influence.Footnote 16
Although Greene does not mention Eliot explicitly, his account of Renaissance imitation has also been recently criticized on similar grounds by Colin Burrow. According to Burrow, Greene’s almost romantic idea of ‘historical solitude’ neglects one important aspect of imitation: that it is a practice often implying forgery, manipulation, distortion.Footnote 17 The fact that early modern authors are deferential to certain authorities of the past does not mean that they are necessarily ‘loyal’ to such sources, or historically accurate in reviving them. If anything, as we will see, to appropriate something in the present meant to adapt it and distort it to generate new meaning, regardless of the historical or textual accuracy of the whole operation. From this perspective, by bringing the agency of imitators back to the foreground, rather than confining it to Eliot’s alleged impersonality, it is possible to understand more about their intellectual and institutional agendas.
Second and, to a certain extent, relatedly, Burrow claims that Greene’s account overlooks the intrinsically pedagogical quality of imitation.Footnote 18 In the sixteenth century, imitation of classical authorities such as Virgil, Livy and Cicero was not only a prerequisite for poets and authors to create new works according to the rules of composition prescribed by such models. Rather, it was also, and more importantly, at the very pedagogical core of how authors like Gentili and Grotius were trained. In other words, imitation was a pedagogical institution.Footnote 19 Having benefitted from his legal training in Italy at the University of Perugia, Gentili had a deep knowledge of the classics of Renaissance humanism, as well as of the most important texts of legal humanism (Andrea Alciato, Guillaume Budé, etc.).Footnote 20 When in 1578 he fled to England as a religious exile from the small town of San Ginesio, he became an acolyte of the Elizabethan intellectual circles and joined debates on poetry, theater performances, and historiography, while writing his most famous legal texts.Footnote 21 As a child, Alberico was trained by his father Matteo to compose poetry, and eventually trained his son Robert in turn. His Lectionis variae virgiliane liber (1603) is a collection of 20 readings of Virgil’s Eclogues that the Italian jurist dedicates to his son Robert to prepare him for college. Alberico is convinced that that nothing like Virgilian poetry can equip an eight-year-old boy with the rudiments of Latin grammar, morality, and even law. Similarly, Alberico’s brother Scipio wrote one of the first commentaries to Torquato Tasso’s Jerusalem Delivered. Grotius was even more prolific as a humanist than Gentili. Translator, editor, poet and historian, Grotius quickly became one of the most influential figure of the respublica literaria of his times, accruing prestige and credit among European intellectuals not only for his De iure belli ac pacis (1625), but also for his poetic and theological writings.Footnote 22 In 1625, right before he published his masterpiece, he also published a collection of excerpts from classical poets titled Dicta poetarum,Footnote 23 followed in 1626 by his Excerpta ex tragoediis et comoediis graeciis.Footnote 24 Grotius selected these excerpts from Ancient Greek playwrights and made his own Latin translations of them, by collating indirect sources and manuscripts, thus showing an intimate knowledge of the transmission practices that enabled the literary past to be re-enacted in the present.
Textual interpretation and translations from Greek into Latin were all means, supported by a flourishing printing market, to make ancient texts available to contemporary learned audiences. All these practices created the material conditions that made the transmission of classical antiquity possible in the present. But who got to decide which authors of the past were worthy of imitation and, thus, of being taken as paradigmatic moral models for the present?Footnote 25 How did it work, specifically? The answer to this question is quite straightforward: authors became canonical by authoritative decisions enforced by literary elites. As we have seen, imitators had a certain degree of freedom in choosing how to re-enact, or even manipulate, their literary models; but ultimately imitators had the last word on choosing those who were worthy of being adopted – which is why Burrow describes the inherently authoritative value of imitation as quintessentially ‘Eurocentric’ and ‘patrilinear’.Footnote 26
It is easy to see how this specific mode of knowledge transmission, sustained by the moral and pedagogical value conceded to imitation, was an integral part of the establishment of literary canons. As argued by Grafton, ‘canons begin with choice and authorization: the more or less formal decision, by some authority, that a given group of works deserve to be set apart as authoritative’.Footnote 27 According to a certain strand in the literature, represented by Harold Bloom’s influential The Western Canon (1994), a fundamental aspect of this process was represented by the fact that ‘the value of a text comes about in significant part due to that text’s engagement with, and transformation of, a formative corpus of canonical texts’.Footnote 28 Canons are self-perpetuating and self-referential systems of belief. They rely on carefully constructed authorities that are progressively internalized through topical repetition, as if they were ‘stamps of approval in an endlessly repeated circle of institutional validation’.Footnote 29 It is possible, thus, to think of canons as an institutionalized practice of imitation. This holds true in particular for humanist culture, where engagement with the canon produces an elitist, self-perpetuating system of values to which only the literati have access, because they are the ones who have produced it. To put it more prosaically: you can only become an authority in your own field if you engage extensively and profoundly with the authorities of such field. This intellectual posture can be easily acknowledged in contemporary academic discourses and citation practices.
As a consequence, as argued by Gorak, canons are necessary to the ‘order of dominance’, and necessarily ‘reject other cultures’.Footnote 30 At the same time, as Grafton observes, canons are circular in nature: ‘each profession constructed a canon, mastery of which was both the price of admission to practice and the basis of participation in debate’.Footnote 31 Early modern jus gentium authors made no exception to this specific mode of professionalization of the discipline – although today scholars commonly accept that the ‘professionalization’ of international law (as we know of it today) happened much later in the nineteenth century. Gentili and Grotius were not just literary erudites, using poetic references to craft their own international legal arguments; they professionalized the use of literary canons in such a way that they became constitutive of jus gentium as a discipline.Footnote 32 From this perspective, to put it radically, jus gentium is literature. Literature did not just contribute with ideas, genres and sources to the historical development of international law; canonical thinking provided jus gentium with intertextuality and authority as its two main methodological assets. As argued by Green, intertextuality offers a means to study change ‘in chains of words - images, sentences, passages, texts’:Footnote 33 every text relies on a previous text, and on its previous interpretations. Jus gentium is the discourse built around challenging, manipulating, or authoritatively defending those interpretations, even when they patently do not hold, as I will show in a while. At its origins, thus, international law is intertextual law.
To conclude this section, a clarification on how all this machinery operates in practice – materially and visually – is necessary. An interesting way to see canons operating is through marginalia.Footnote 34 Marginalia are the marginal notes that are to be found abundantly in early modern legal texts. Marginalia have a strong visual, intuitive power. They mostly consist of the name of the author or source in abbreviated form; an abbreviation of the work quoted; and finally, a specific reference to book and chapters number. To the modern reader, their function resembles that of footnotes. Annotating books in the margin was already a widespread practice in manuscripts, and in the early modern period printers started to imitate (sic!) ‘the layout of marginate manuscripts’ in their printed editions.Footnote 35 Thus, originally, as observed by Slights, ‘the printer, by controlling which marginalia survived in the transition from manuscript to printed book, established certain marginalia as a canonical part of the text they accompanied’.Footnote 36 This would also make the book more marketable, because marginalia showcased direct engagement with older textual traditions.Footnote 37 Once these books were out in the market, readers would also add their own handwritten marginalia to appropriate, expand, engage, criticize the printed ones; their role appears to bear witness to an engagement with the text that was far more visceral than our contemporary reading experience: books were not to be read, but rather used and worn out until consumption.Footnote 38
In early modern printed legal texts, marginalia exercise a variety of functions that have yet to receive proper and serious examination by historians of international law. Sometimes marginalia are quoted as theoretical handholds for the argument in the text; other times they are quoted to refer to a wider intellectual debate that is only hinted at in the text, and to which the reader is referred for further details and context; they often provide cross-references, counter-examples, sarcastic remarks. Marginalia are also, as I will show in a while, the place where contestation of authorship and complaints of inauthenticity are voiced.
3. The poetic of authenticity in Gentili and Grotius: Appropriating the canon
In establishing literary canons as ‘orders of dominance’, Gentili and Grotius seek to create a universal law of humanity, jus gentium; and in doing so, they use the authority of these canons to establish their own. To fit into a pre-existing tradition and converse with intellectuals who are equally marketing themselves as authorities becomes a fundamental part of this process of creation. As argued by Cavanagh:
establishment legal thinkers had discovered, by the Renaissance, that they could get away with saying just about whatever they wished to say – moving whatever principles they wanted into whichever categories they desired to move them – so long as they complied with the convention of citing authorities, living and dead.Footnote 39
This process can be described as one of ‘hermeneutic application’.Footnote 40 This appropriation implies an intensified degree of relation between the past and the specific epistemic community it aims to persuade. To argue that some facts or literary episodes of the past have a distinctively normative value, ultimately means to question the role of history. How does history provide us with reliable tools to access the truth(s)? What is, ultimately, truth, and how do we make it visible in the present? According to Gentili and Grotius, this goal can be achieved either by providing generalizations of behavioural patterns (comparing past histories with contemporary practice, while aiming at achieving an unchanged consensus on the issue), or by presenting persuasive arguments from the past as authoritative judgments. In both cases, however, both Gentili and Grotius show a tendency to prefer ancient history over contemporary historical occurrences, because of the normative potential that paradigmatic exempla from the past seems to carry.Footnote 41
The paradigmatic value of the classical past relied on a strong belief: that the Roman tradition, with its legal institutions and practice of empire, was a successful model capable of being adapted to the present. From this perspective, this fiction was used in the present to recall a certain ideal of justice that both Gentili and Grotius, although in different ways, deemed to be crucial for the normative foundation of natural law. Gentili’s elaboration of the justice of jus gentium relies on two fundamental conceptual pillars; first, on a Ciceronian account of international justice, based on the Roman imperial model; second, on the teleological argument that justice manifests itself in history.Footnote 42 In his De armis Romanis, Gentili addresses the Carneadean debate to discuss the justice of the Roman empire. In this work, he seems to share Cicero’s view that what drove Romans towards empire was not a blind desire for glory, but rather a ‘constitutional’ desire to civilize the world.Footnote 43 However, the justice of the Roman cause not only resides in the normative value of the civilizing mission it entails. Military victories are living proof that wars are conducted justly, and lead to the formation of empire; consequently, the latter is inherently just when it passed the test of history to be declared just.
This teleological view of war and history is evident in Gentili’s extensive use of Virgil. Examples from Virgilian poetry are abundant in Gentili, who presents his authority as the unchallenged testimony of the virtues of the Roman spirit, ‘culminating’ in the Augustan peace. From this perspective, it can be argued that Virgil’s unparalleled poetic justice shares equivalent evidentiary and paradigmatic value with Justinian’s law, also conceived of the apex of a process of imperial assimilation.Footnote 44 Furthermore, according to Gentili, poetry comes in particularly handy to solve the problem of impartiality of sources. Whereas historiographers might lie, or portray an erroneous description of the historical facts based on their inclinations or party zeal,Footnote 45 Gentili argues that poetry is a fictional creation with no connection at all with reality. Although he might be inspired by events which actually occurred in reality, the poet has no interest whatsoever in telling the truth: he merely wants to tell his truth through the art of poetic invention. Debates on the role of poetry and its rules, triggered in the sixteenth century by the rediscovery of Aristotle’s Poetics,Footnote 46 as well as by the reflections of poets like Philip SidneyFootnote 47 and Torquato Tasso,Footnote 48 allow us to appreciate the rhetorical element of jus gentium as well as the creative use of sources to ‘invent’ legal arguments.Footnote 49
Similarly, Grotius used Roman law, and the Roman tradition in general, as a proxy for his ideas about natural law. He thought that Roman law provided jus gentium not only a set of useful tools to deal with urgent issues, such as the freedom of the seas, the justification of empire, and the interaction with other societies; but more generally, with a notion of justice, which he derived from Stoic sources and Cicero, that was to be applicable universally and put at the basis of natural law (as witnessed by his notion of oikeiosis). To this effect, he further qualifies the relationship between the universality of natural law, and the fundamental role played by poetry in portraying it. While claiming that poetry should have a subsidiary role because it can be merely ornamental,Footnote 50 Grotius surprisingly makes extensive use of ancient poets to support his arguments. One possible explanation for this might be that Grotius uses poetic sources only to further emphasize a point which is already self-evident: arguably, this is exactly the case with natural law, which is perfectly deducible from human reason with no need to conjure up particularly convincing arguments to prove it. Whereas history uses particulars to build toward universals, poetry does the exact opposite: poets use verisimilitude to explain truths in a likely manner, even if no historical events ever occurred in that exact form.Footnote 51 The moral and legal value of poetry, intended as an original source of meaning detached from historical truth, is what makes poetic examples so appealing to the lawyer: indeed, ‘poetry was not merely meant to entertain the audience, but to inform as well: it conveyed a social message, and this functioned in a complex system of literary traditions and moral codes’.Footnote 52
Three main aspects have been emphasized by early modern jurists concerning the usefulness of poetic examples for jus gentium. First, poetry provided jus gentium with a portrait of radical human uncertainty. Alberico and Scipio Gentili argued that Virgilian poetry (as well as Tasso’s Gerusalemme Liberata) offered the perfect representation of the changes of fortune typical of human nature and that are so important to understand the fragility or human nature, and, hence, for the jurist to recollect customary norms of jus gentium moderating warfare. In this very same respect, more recent scholarship has emphasized that humanitarian and human rights law still share resemblance with early modern jus belli,Footnote 53 as it is particularly evident in the epic genre, where conflict takes the radical form par excellence: war. It is our human condition that makes us so vulnerable and yet so equal, especially in cases of extreme suffering like the one experienced during a war.Footnote 54
Second, poetry is considered as an original, universal and authentic source of meaning. Poems do not affirm; poems do not deny: poems just tell us stories that we would otherwise not be aware of.Footnote 55 In this authenticity, naturalness and spontaneity lies the prescriptive power of poetry, i.e., its ability to create legal imaginaries and normative orders. What is being told in the poem is neither true nor false – does it even matter if Achilles really existed, or if a specific passage from Aeneid was really written by Virgil? Regardless, it is a story that a poet created out of nowhere just for the sake of our aesthetic pleasure. Precisely for this reason, poetry grants us access to an original and authentic source of meaning: this is what makes it so special and unavoidable for human life. It is because it is so real that we can get rid of the intellectual burden of wishing it was true. Everything that is required from the reader is full, blind trust in the poet as the ultimate witness of such truth. In his poem Aschenglorie, the twentieth-century German poet Paul Celan powerfully expressed this concept in his verse ‘niemand Zeugt für den Zeugen’. No one bears witness for the witness: they are a source of meaning that we can believe or not.Footnote 56
Gentili and Grotius not only rhetorically exploit the power of fiction in its purest form, poetry, to ensure that the universality of these values remains unchallenged; but the alleged ‘universality’ of authenticity is a carefully constructed textual enterprise. From this perspective, crafting authenticity is, for Gentili and Grotius, an exercise in world-making – it is what the jurist wants to see in the world, and an accurate depiction of his beliefs, rather than a reliable account of what the world or its past actually are.
4. What if authority is a fraud? The Helen episode in Virgil’s Aeneid
In what follows, I will further explore the dynamic between the authority and (in)authenticity of poetry through a literary trope widely discussed by both Gentili and Grotius. In their respective De iure belli (1598) and De iure belli ac pacis (1625), Gentili and Grotius discuss whether it is licit to kill women in warfare.
It appears to them that women deserve a special treatment for reasons of their ‘imbecillity’: except for special cases (Amazons, Joan of Arc), the ‘weakness’ of their sex generally prevents women from taking arms in battle, and thus it is convenient to consider them, together with children, as categories to be protected, rather than targets to be killed.Footnote 57 While developing different lines of arguments, as I will clarify in a while, Gentili and Grotius build their case by referring to the same controversial 22 verses of book II of the Aeneid in which Aeneas ponders killing Helen. In this passage, Aeneas is haunted by memories of the destruction of his Trojan homeland. He thus channels these memories into a delusional narrative of fury and vengeance, which he reports to Dido (the whole passage is a quotation of his speech to her). In the story, while he looks back in horror at all the losses he has endured, he catches sight of Helen by Vesta’s shrine. The mere mental image of her discombobulates Aeneas to the point that, in a fit of rage against the woman who caused so many deaths, and eventually, the destruction his homeland, he appears on the verge of killing her:
Flames were now rife in my soul, ire rose up within me, demanding
Vengeance for my dying homeland and summary, criminal justice.
“Must she see Sparta again unharmed—and her uncle’s Mycenae—
Riding in glory, a queen who has just given birth to a triumph?
Is she to see married life, her ancestral home and her children,
Served by a court full of women from Troy and of Phrygian
pageboys,
Though Priam died by the sword, though Troy is but one massive
bonfire,
Though our Dardanian shore has sweated out blood beyond measure?
No! While you don’t win a glorious name if you punish a woman,
Here is a victory earning its own special kind of approval.
I will be praised for destroying the blight of a curse, for exacting
Punishment earned, and my soul will be glad it has duly
accomplished
Vengeance we burned for—and sated the thirsting ash of my nation.”
Such were my rioting thoughts (talia iactabam) as my mind’s rage swept me
towards her.Footnote 58
Aeneas is aware that punishing a woman will not grant him a good reputation; however, he justifies such act, at least to himself, by arguing that, in killing Helen, he would seek justice and vengeance for all that his fellow Trojans had to suffer because of her. The scene itself has many literary precedents:Footnote 59 just to mention one, the wording ‘such were my rioting thoughts’ (talia iactabam) is an imitation of Iliad, I, 193–5. Aeneas’ violent outburst is suddenly put out by a divine intervention: his mother, Venus, appears to talk some sense into her son’s wrathful soliloquy, by urging him not to surrender to such ‘uncontrollable anger’;Footnote 60 and asking him that he showcases, instead of pointless fury, his proverbial pietas and care for the memory of his ancestors. Aeneas eventually comes to his senses, and refrains from killing Helen.
In these 22 verses, poetic imagination and narrational delirium meet in a case of contested Virgilian authorship.Footnote 61 The authority of these verses was particularly contested already by Servius, one of the oldest Virgilian commentators (end of the fourth century CE). According to Servius, these verses were expunged by Plotius Tucca and Varius Rufus, the two poets Augustus put in charge of editing Virgil’s opus after his death. The reason for such emendation relied in textual inconsistency: it was quite unworthy of Aeneas’ character, depicted throughout the poem as the hero of pietas, to fall victim to such a rage, and to even consider killing a woman. This passage, Servius argued, was simply inconsistent with Aeneas’ behaviour in book VI.Footnote 62 In this book, during his voyage to the underworld, Aeneas meets Deiphobus, Helen’s new husband after the death of Paris. Deiphobus is completely disfigured, and tells the story of the final night of Troy in which he was betrayed by Helen and eventually killed by Menelaus, with whom Helen eventually reunites. Deiphobus’ account of this episode recalls the fury of book II, as he complains about Helen’s betrayal and threatens vendetta on behalf of the Trojan people. But as he witnesses Deiphobus’s fury, Aeneas seems untouched by the ‘unbridled passions’ that had taken over him in book II. Instead, he is urged by the Sybil to continue his journey towards his ‘fate’, i.e., the foundation of Rome.Footnote 63
Modern philologists consider the verses in book II, to this day, inauthentic. Most find that the passage presents one of the ‘gravest’ interpretative problems of the Aeneid as a whole.Footnote 64 Commentators have observed that not only do these verses have a stylistic fury – matching the fury experienced by Aeneas – that does not seem to correspond to the language of Virgilian poetry; but that their textual transmission is also obscure, as they do not appear in any of the ancient Virgilian manuscripts.Footnote 65 According to Gian Biagio Conte, this passage has some sort of narrative coherence.Footnote 66 Conte argues that ‘the discovery of structural models – those consisting of inherited paradigms and those proper to the grammar that develops them – can help a philologist in the difficult task of assessing a text’s authenticity’.Footnote 67 Interestingly enough, Conte suggests that the narrative structure of these verses, based on consistent imitation of past models, should serve as a sufficient proof of their authenticity. While this interpretation seems quite weak conceptually, it is interesting to unravel the syllogism it tacitly relies upon. Virgil is a great poet; thus, he must be extremely well skilled in the art of imitation; ergo, these verses must be his by default. Again, the topos of imitation as the ultimate guarantee of authenticity seems quite a resilient one, even in the face of what Burrow has described as the inherently manipulative character of imitation. On the other hand, Nicholas Horsfall more realistically argues that these verses are almost manneristic in their Virgilianness, thus suggesting that they are ‘a tribute to the excellence of the best ancient analysis of Virgilian style’, offered by a very skillful interpolator.Footnote 68
Gentili might have been unaware of these developments, resulting from later philological discoveries and techniques. However, as it has been shown, it was clear already long before the sixteenth century that this Virgilian episode carried a whiff of inauthenticity. Instead, by blindly placing his trust on Virgil’s poetic narrative, Gentili defends Aeneas by invoking the support of Julius Caesar Scaliger, one of the greatest humanists of his time, author of an influential treatise on poetry (Poetices libri VII, 1561). At the same time, he uses Scaliger’s giant authority to belittle Antonio Bernardi della Mirandola, the Aristotelian philosopher and archbishop of Caserta (also known as Casertano) who authored a book on the legitimacy of duel, in which the Aeneas-Helen passage is also discussed.Footnote 69 Indeed, according to Scaliger, Aeneas did not kill Helen because he acted on account of divine advice: ‘in the human mind, the reason that wins over passion is nothing but a ray of that original light, without which one could say that everything is darkness, and it would really be so’.Footnote 70 Aeneas is trying to save the honor of his citizens: it is natural of him to have thoughts of vengeance, but this does not imply he will really carry on with his plan. In Scaliger’s interpretation, Venus’ intervention is nothing but an allegory of the capacity of human reason to participate in divine judgment. On the other hand of the spectrum, Gentili reports Casertano’s poor interpretative option. Casertano mentions that Tucca and Varius rightly decided to delete these verses, in which ‘it is imagined that it occurred to Aeneas to kill Helen’ (‘fingitur venisse in mentem Aeneae Helenam interficere’).Footnote 71 Gentili criticizes Casertano in that his zeal in reducing the Virgilian verse to the rules of logical consistency costed him an unfaithful interpretation of the Virgilian text. Poetry is, indeed, a fiction that needs to be believed in; as Casertano himself writes, Virgil here only ‘imagines’ the possibility of Aeneas killing Helen. To conclude, Gentili argues that Aeneas would not have killed her even if she was guilty, and urges the reader never to question the moral value of his Virgilian hero; and to trust Virgil wholeheartedly.
The same passage is quoted in Grotius, who does not seem to share Gentili’s interpretative authoritarianism.Footnote 72 Not only Grotius seems unfettered by Virgilian authority, and thus appears to be at liberty to criticize the poet when necessary; but he also adds his own interpretation to the debate concerning this controversial passage, which he however considers Virgilian. Interestingly, Grotius adds the following annotation to his 1646 edition of De jure belli ac pacis: in commenting on this passage, Grotius suggests that Tucca and Varius deleted the verses precisely because they presented a legal absurdity – that women could have the status of enemies.Footnote 73 It is jus gentium, thus, that unravels the inauthenticity of the passage. Grotius ascribes to Virgil’s emendators Tucca and Varius the skills of jus gentium connoisseurs – how likely this is remains a question for classicists to assess. From our perspective, instead, Grotius’ argument is that, unlike children, who do not have the use of reason, women can be accountable for crimes: but unless they are proven to be guilty of some particular crime, ‘or have usurped the Offices of Men’, women should not be killed in combat. Here Grotius compares Virgil’s episode with a verse form Seneca’s tragedy Octavia – again, a text of contested attribution.Footnote 74 The question is not really about whether violence against women is acceptable, or about whether Virgil should be believed or not. It is, rather, about who formally qualifies as an enemy under the laws of war. According to Grotius here, Virgil seems to have make a crass mistake that was diligently corrected by his emendators. Thus, it is the authority of jus gentium that ultimately settles the question of this case of contested authorship – which, constitutes a perfect example of the process of domestication of canonical thinking into jus gentium as a discipline.
5. Conclusion
The far-reaching implications of these models of literary transmission call into question the specifically universalistic mission entailed by jus gentium. Literary practices and interpretative canons shaped culturally loaded beliefs behind each single rule of jus gentium (that ambassadors should be spared; that prisoners-of-war should be treated with moderation; that women should not be killed, etc.). Even today, internationalists believe in the value of international law, rather than dismissing it as fictional: they choose to be enchanted by disenchantment.Footnote 75
As I have shown, these beliefs are not only based on Eurocentric cultural references, but can be often unfounded in terms of historical and textual accuracy. Canonical thinking made those references widely available and worthy of engagement; imitation made them susceptible to forgery, manipulation, and distortion, to the point that the original reference becomes the sum of its confusing, overlapping, and often creative interpretations. What remains is, however, the moral (and legal) value conveyed by a specific authority of the past, as well as the influence the latter keeps exerting over centuries. That those 22 Virgilian verses were not authentic did not prevent Gentili and Grotius from building a whole – and influential – argument based on them. As shown, the authenticity of the legal message conveyed in the ‘Helen episode’ could be construed even in spite of contested authorship, just because Virgil is an authority that both Gentili and Grotius could not choose to ignore, if they wanted to stand a chance at being taken seriously as authorities themselves.
But their engagement with the literary canon, and subsumption of canonical thinking into the discipline of jus gentium, is far more revealing on at least two accounts. First, the early modern practice of imitation appears to be an intellectual cognate of what we would nowadays refer to as ‘anachronism’. At closer inspection, the plague of anachronism that so afflicts contemporary methodological debates in the history of international law seems to rely on a long-standing historical tradition. It was anachronistic of Grotius to think that Tucca and Varius, the two emendators of Virgil, could judge the quality of his poetry based on seventeenth century jus gentium standards, and correct the Helen episode accordingly because it did not comply with those standards; and yet, nothing prevented him to advance such argument, and unproblematically so. Hence, from an historical perspective, the ‘anachronism’ of imitation and canonical re-appropriation appears to be the distinctive feature of jus gentium’s argumentative structure. Even today, international lawyers are, more or less consciously, directly tapping into this tradition. Martti Koskenniemi, in his last book on legal imagination, especially in the chapters on Gentili and Grotius, does this explicitly: while criticizing their contradictions and theoretical insufficiency, he visibly imitates their argumentative style.Footnote 76
What has changed, and this leads me to my conclusive remark, is that international lawyers, while still being interested in crafting origin stories about their discipline, are no longer persuaded by their specific means of cultural production. This happens understandably, as international law is a much different discipline than what jus gentium was (and was thought of) in the sixteenth and seventeenth centuries. However, the question of what is the legacy of marginalia remains, and is far from an idle or antiquarian one to be asked. It can be argued that classical sources quoted in marginalia contributed to the construction of a dominant narrative of jus gentium, whereby narratives of marginal and subaltern subjects (i.e., non-European peoples, women,Footnote 77 animals, enslaved peoples) became inherently excluded from the picture. Such marginalization became even more dramatic when marginalia visually and materially disappeared from the practice of writing international law in the nineteenth century. Consequently, we started progressively losing track of the apparatus of canonical references authorizing certain narratives. Those references lie now invisible and ignored, but their meaning is still there for us to unearth, somewhere along the margins of a torn page.
