Page 287 - Envoys and Political Communication in the Late Antique West 411 - 533

Negotium agendum

The praetorian prefect of Africa, and later the emperor Maurice, go to
great lengths to molify Grippo and his king, Childebert II.
Greco-Roman authors explained the free movement of legations, and
other elements of interstate relations, by invoking the classical Roman
legal conceptof ius gentium. The term originally referred to a body of law
which originated perhaps in praetorian ordinances of the early Roman re-
public, intended to control relations between Roman citizens and foreign
traders by specific applications of Roman legal provisions to peregrines.
The need for these laws was superseded by the expansion of Roman
power throughout the Mediterranean. By the time of the early impe-
rial juriconsultants, the term ius gentium had become understood in a
much broader sense, in relation to ius naturale and ius civilis, as a body of
legal concepts common to all peoples, distinct from the universal impera-
tives of living creatures or the legislative provisions of individual states.
Ius gentium applied to that part of private law which involved human
concepts deemed to be ubiquitous, such as most contracts, and also cus-
toms controlling relations of states to each other in war or peace. It is
in this broad sense, in contrast to natural and civil law, that the term is
defined in Justinian’s Institutes (derived from the second-century jurist
Gaius). The concept was largely one of moral value rather than practical
application. 185
According to the jurisconsultants, ius gentium precluded the physical
punishmentof envoys or their restraint in the outbreak of war, but the
concept affected the conduct of embassies in a broader way than specific
legal definitions. 186 The term, loosened from a specifically legal context,
became part of the public discourse of state affairs. Roman literary
authors of the republic and early empire, particularly the historians Livy,
Tacitus, Sallust, and Quintus Curtius Rufus, freely employ the term as a
setof sacred standards which declared nefas certain activities in wartime,
including the violation of foreign envoys or the commencementof war
withoutjustcause. 187 A century after Justinian’s commissioners restated

imperatoremque vestrum. Nos enim pro pace venimus et pro adiutorio rei publicae inpertiendo. Testem hodie
invoco Deum,quia vestra excitavit noxa ut non custodiatur inter principes pax promissa.Cf. ibid. x, 4:
Maurice sends to Childebert twelve suspects, with the right to execute them if he wished.
185
Justinian, Institutes i, 1.2.2. Kunkel, An Introduction to Roman Legal and Constitutional History,
75–83, 100; A. A. Schiller, Roman Law: Mechanisms of Development (The Hague, 1978), 525–30;
Max Kaser, Ius gentium (Forschungen zum R¨ omischen Recht 40; Cologne, 1993); P. Stein,
Roman Law in European History (Cambridge, 1999), 12–13.
186
Pomponius apud Digest l, 7.17 (cf. Procopius, Wars vi, 7.14; vi, 22.23). Cf. Ulpian apud Digest
xlviii, 6.7: provision for punishmentunder lex Julia for anyone harming legatos oratores comitesve.
Kaser, Ius gentium, 33–5. For examples of historical instances of ius gentium cited for the protection
(or prosecution) of envoys: Jerzy Linderski, ‘Ambassadors Go to Rome’, in E. Fr´ ezouls and
A. Jacquemin (eds.), Les Relations internationales (Paris, 1995), 452–4 n. 4 with references.
187
ThLL vi, s.v. gens ii f2a for references. Cf. Herodian vi, 4.6.
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