Compact and well-written, Jennifer Pitts’s Boundaries of the International joins a growing field of inquiry into the history of international law. Pitts sets out to challenge what she sees as the discipline’s conventional narrative: that international law emerged first between free and sovereign European nations, creating an ecumene that other states would aspire to join. Instead, she shows, ideas about the ‘law of nations’, as it was long called, were from their beginning shaped by European commercial and colonial expansion. International legal discourse, Pitts argues, supplied both justifications for conquest and resources for a critique of the abuses of imperial power.
Pitts, who teaches political thought at the University of Chicago, has a longstanding interest in the history of these ideas. A Turn to Empire, published in 2005, offered a rejoinder to liberalism’s more intransigent critics, acknowledging the imperial ‘turn’ among nineteenth-century liberal thinkers, but insisting on the cultural pluralism and anti-imperial credentials of a cohort of more admirable forerunners. Smith, Bentham and, above all, Burke, were offered as principled critics of imperialism’s cruelties, exemplifying a ‘strikingly non-judgemental’ respect for cultural difference and a commitment to the moral equality of all. She subsequently co-edited a collection of writings by the twentieth-century Polish legal scholar Charles Henry Alexandrowicz, whose work on changing conceptions of the law of nations plays an important role in Boundaries of the International.
The central issue animating international legal thinkers in the eighteenth century, Pitts contends, was their field’s scope. Was it truly universal, encompassing all peoples and polities, as earlier natural-law theorists of a ius gentium had argued, or did it stop at Europe’s borders? Alexandrowicz drew a sharp line between eighteenth-century understandings of the law of nations as universal, binding European states in their relations with Asian ones—or at least with the commercial empires of the region—and late-nineteenth-century conceptions, marked by exclusion and European chauvinism. Pitts sets out to show that the picture was far messier and earlier conceptions less inclusive of extra-European polities than Alexandrowicz supposed.
Pitts begins with eighteenth-century attitudes towards the Ottoman Empire and its place within the nascent system of international law. Christian thinkers had traditionally rejected the permissibility of treaties with infidels, yet by the eighteenth century many had begun to question this. Advocates of Ottoman inclusion in the European legal order could point to a dense history of diplomatic and treaty relations: France in particular had had treaty alliances with the Sultan against the Habsburgs since 1536, and England had followed suit with commercial and diplomatic agreements. Others, though, drew on a new discourse of ‘oriental despotism’—Pierre Bayle’s essay ‘Despotisme’ (1704) is credited with coining the d-word—to insist that the Ottomans were ‘irreducibly alien in religious belief, constitutional principles and norms of interstate relations’ and thus undeserving of membership in the European legal community. At the centre of this new discourse Pitts locates Montesquieu, whose De l’esprit des Lois (1748) offered a picture of the Ottomans, and Asian polities more generally, as existing squarely outside European legal norms.
Montesquieu drew on the work of Paul Rycaut, secretary to the English ambassador in Constantinople from 1660–66, who described in great detail the diplomatic and legal practices of the Ottomans. Rycaut, the London-born son of Dutch Huguenots, who was also serving the Levant Company, had sought to correct an image of Ottoman ‘barbarity’ in the European imagination—‘Men of the same composition with us’ who ‘cannot be so savage and rude as they are generally described’—while at the same time drawing some pointed lessons for Restoration England: ‘Reason stands in no competition with the Pride and Lust of an unreasonable Minister.’ Montesquieu famously depicted his three regimes of government—republic, monarchy, despotism—as distinct in nature and motive principles. While systems of civil and religious law operated within the Ottoman empire, the Sultan was not bound by them. Unlike the compact European states, whose proximity helped to develop the capacity for diplomacy and negotiation, despotism preferred to be ‘surrounded by deserts and separated from the peoples it calls barbarians’. Montesquieu’s approach, Pitts argues, left an imprint on subsequent debates.
Voltaire was not the only critic of De l’esprit des Lois. French scholars and diplomats also pushed back, alive to the complex network of trade relations at stake. The French Orientalist Abraham Anquetil-Duperron insisted in his 1778 Législation orientale not only on the law-governed nature of the Ottoman, Persian and Mughal Empires but on their specific respect for the law of nations and their legal obligations toward subjects and foreigners alike. Where Montesquieu depicted a rigid separation of distinct ideal types, Anquetil-Duperron saw ‘variations on a universal type sharing the basic structures of law and order that exist in all societies, and that in all societies are sometimes defied, abused and neglected by the powerful’. He described an Ottoman legal system in which it was clear that ‘the law of nations, the law of war, public faith, the security of property, that of commerce, in sum that the laws of humanity and of reason are respected by the Ottoman Monarchs as well as by their representatives’. For Anquetil-Duperron, it followed, they deserved inclusion in a law of nations community.
If Anquetil-Duperron offered, in Pitts’s somewhat anachronizing gloss, a ‘profound critique of European provincialism and racism and their connection to abuses of power’, it was one that left little mark on subsequent European thinkers. While the language of ‘oriental despotism’ soon fell into disuse, the debate contributed to a growing consensus that non-European empires existed in a different legal universe. But in the eighteenth century such a view was not yet cast in stone, as was evident in the work of the influential Swiss jurist, Emer de Vattel. In his Droit des gens (1758), Vattel painted a picture of an international legal community of states premised on sovereign equality and independence. Nations were the sole judges of their own conduct, each possessing ‘the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties’. This account, Pitts observes, was marked by a ‘resolutely universal’ language of inclusion—repeated references to l’amour universel du genre-humain—with the law of nations applying to the ‘universal society of nations’ of which non-European states, too, were presumptive participants. The ‘American nations’ were explicitly included amongst those nations ‘absolutely free and independent’, with Vattel condemning those ‘ambitious Europeans’ who ‘subjected them to their greedy dominion’, having ‘grounded themselves on a pretext equally unjust and ridiculous’.