Alberico Gentili, The Wars of the Romans: A Critical Edition and Translation of De armis Romanis, ed by Benedict Kingsbury & Benjamin Straumann, translated by David Lupher (Oxford: Oxford University Press, 2011) Benedict Kingsbury & Benjamin Straumann, eds, The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: Oxford University Press, 2011) Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010)

Oxford University Press has recently released three books that, as their titles indicate, explicitly address the “foundations” of law. Foundations of Public Law is penned by Martin Loughlin; it builds on and deepens his earlier work, particularly The Idea of Public Law. It seeks to provide an account of the emergence and the characteristics of “public law”, the modern successor to the medieval “fundamental law”; this “public law” constitutes, according to Laughlin, the “code” of an “autonomous public sphere” tied to the “intrinsically modern idea of the state.” Jointly edited by Benedict Kinsbury and Benjamin Straumann, The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire emerges from the History and Theory of International Law Program at NYU Law School. By way of the work of Alberico Gentili, its fifteen contributions consider “the extent to which early modern thinking about the law of nations and imperialism was influenced by the ideas and the historical record of the Roman Empire.” The work is accompanied by the first English-language translation and critical edition of Gentili’s De armis Romanis. To inquire into “foundations” is to inquire into things we take for granted but without which we could not live in the world as we do. Most often, inquiring into foundations requires that we rethink how we live, how we talk about how we live, and the relationship between the two, the relations between our practices and our discourses. Loughlin explicitly casts his long, dense historical and theoretical project in relation to “recent developments in the British system” that require that the British “re-connect with the mainstream European tradition of public law” to address “foundational questions”. The questions he is most interested in reviving are “questions of ‘right’ relating to the conferral of authority and legitimacy on modern governmental ordering”—these being the proper subject of “fundamental” or “public” law. In particular, he claims that the British must revisit the standard belief that “following the Revolution of 1689 … the concept of fundamental law was abandoned and replaced by the claim that there is only one true concept of law: the ordinary law proclaimed by Act of Parliament, to which all allegiance is owed.” Indeed, he is keen to resist the equation of fundamental law with “the ordinary (common) law,” which “leads inexorably down the path towards judicial supremacism—the conviction that, as authoritative interpreters of ordinary law, the judiciary must also act as guardians of fundamental law.” The unfortunate result of the conflation of ordinary and fundamental law is the gradual obscuring of what is truly “fundamental” about fundamental law. That is to say, any consideration of “law as an expression of the constitutive principles of right-ordering” is effectively bracketed out in favour of a positivistic conception of law for which the “authority of … constitutional arrangements [remain] unquestioned” and “beyond the boundaries of juristic knowledge.” Accordingly, Loughlin conceives of his project as, at least in part, an “exercise in retrieval”: his introduction is fittingly titled “Rediscovering Public Law”. His exercise in retrieval requires that we identify and call into question certain of our own habits: the inability (at least in English) to distinguish droit from loi (and lex from ius); disciplinary fragmentation and the related shrinking of the “legal” universe; the (positivist) tendency to avoid questions of authority in preference to those of validity; and the (liberal) tendency to conceive of law as a limit on power. Loughlin’s work, in my words, aims to show an ontological priority—in modern times—of a “prudential … discourse of political right” to positive law narrowly understood. Indeed, he frames his …