Examining Heller-Roazen’s new book on piracy

Daniel Heller-Roazen The Enemy of All: Piracy and The Law of Nations. (New York: Zone Books, 2009), 274 pp.

Perhaps the most misleading platitude that one hears all too often in discussions of the contemporary rise of piracy off the Horn of Africa is that piracy has been around since the beginning of recorded history. On the surface, the statement is of course true. But this truth comes at the tremendous price of conceptually flattening differences between diverse social and historical situations into a one dimensional legal category, thereby obfuscating the genealogy of a concept and a figure that has been formative to the history of nations. It is precisely this complex genealogy that professor Heller-Roazen assails and reconstructs with tremendous acumen and subtlety in his latest work The Enemy of All: Piracy and the Law of Nations.

The argument that threads the sixteen chapters together is deceptively simple: namely, that the figure of the pirate, as the original enemy of all in Roman jurisprudence, is genealogically and structurally paramount to humanist thinking; moreover, that the figures and concepts which define much of the current ethico-political paradigm (the terrorist, the insurgent, crimes against humanity), owe much to the legal history of concept of piracy. In support of this argument the author musters an impressive arsenal of texts and authorities from Roman legal codices, Homeric epics, and the emergence of the law of nations, to German idealist philosophy, and the modern history of warfare. In place of the uniform notion of piracy as a self-same practice of maritime predation extending back into the recesses of time, we are confronted with the variety of polities for which the notion of piracy was historically instrumental for various political and economic reasons. As each discursive shift is contextualized in an historical moment of political and military struggle (e.g. Minos’ conquests, the Barbary wars between Christian Europe and Muslim North Africa, or the charge of piracy in the crepuscule of the Atlantic slave trade), what emerges is a chronicle of the vicissitudes of the discourse of piracy in its relation to the historical evolution of  polities and state structures.

The strongest parts of the work are clearly the chapters that weave detailed commentary on the writings of Roman and early modern jurists with theoretical interventions on the nature of and evolution of political order. In this respect The Enemy of All has much original material to offer students of state theory. Parting ways with the dominant trends of neo-Weberian and neo-Marxian theories of the state, Heller-Roazen nonetheless retains the term rather than following the Foucaultian trend of collapsing the history of the state into an historical binary of sovereignty and governmentality. By focusing on “the relations that obtain between pillage and polity,” the author is able to open for view a whole history of struggles over the rights to and legitimate uses of violence (rather than, say, merely declaring the monopoly on this legitimacy to be the essential trait of statehood), tracing the titles and institutions that alternatively authorized and condemned the material social practice of pillage. The moral economy at the foundation of this discourse is laid bare. For the ancient Greeks using the term meant little more than the moral condemnation of acts of plunder when conducted at one’s expense, and their celebration when one profited; Roman times produced the first properly legal definition of piracy as illicit plunder and, when in 67AD the Roman Assembly granted Gnaeus Pompey exceptional powers to combat the practice in the Mediterranean, piracy and its suppression, Roazen argues, became a paramount factor leading to the collapse of the Republic and the inception of the Roman Empire; the politics of legitimacy come to the fore powerfully in the early modern period, as such titles as ‘corsair’ and ‘privateer’ came to embody state sanctioned maritime predation and were alternatively granted or withheld depending on the current state of war or peace obtaining between the European powers.

Heller-Roazen is indeed at his best in his philological and genealogical work on the typology of Others against which political order must necessarily define itself. Here the legal figure of the pirate emerges in Roman law along side two other figures: the external legitimate enemy (hostes) and the criminal internal to the political order (inimici). While behavior towards the latter two is regulated by conventions of war and the rule of law within the polity, the pirate is precisely the figure with whom political, ethical, and military interaction has been historically problematic to codify. Incidentally, that this is still very much true of our contemporary world is clearly attested to by the sheer volume of international Resolutions, Declarations, Agreements and “exchanges of letters” that have gone into creating a viable legal framework in which to try Somali pirates in Kenya and the Seychelles.[1] Heller-Roazen gives us the tools with which to understand—in all their historically situated complexity—the contemporary appeals to “universal jurisdiction” and “extraterritorial jurisdiction,” as well as the categories of “private” and “political” as they pertain to piracy.

The major shortfall of the book is that it fails to complete the gesture of the demonstrating its ultimate thesis. It is only in the last twenty pages of the book that we finally encounter our current epoch and the connection between the legal paradigm of piracy and that of terrorism is left as a mere suggestion. One comes away with a wealth of empirical material, but with feeling that a great theoretical break through has been lost. One wonders why the author did not trim back the (admittedly interesting) seventy-five pages of notes, and allow himself more space in which to follow through with the argument. A lesser complaint might be raised that strictly political-economic elements of the analysis are lacking, that in his accounts of the historical evolution of piracy they are touched upon only tangentially, often subsumed into purely political and military struggle. Also, a few chapters of the text are fully dedicated to chronicling of the figure of the pirate in literary works. While these are pleasant to read and impressive for the sheer breath of knowledge and linguistic versatility of the author (equally at ease with Latin, Greek, German, Italian, French, and English sources), they seem to add little to the theoretical force of the book.

These latter complaints aside, the book is well worth the read for anyone interested in piracy, the state, border issues, the politics of legitimation, maritime commerce or the legal history of warfare. The book will also prove especially insightful for anyone seeking to understand the contemporary rise of piracy and the ideological framework in which it is being handled by the “international community.” During the course of my own research on the piracy trials in the law courts of Mombasa I have found myself turning back to the text frequently. It must be recognized that Heller-Roazen has produced the first serious genealogy of the concept of piracy, which in itself is a great achievement.

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[1] In addition to the United Nations Convention on Laws of the Sea, there have been six Security Council Resolutions (Nos. 1814, 1816, 1838, 1846, 1851, 1897), several European Union Council Decisions, Resolutions by the International Maritime Organization, and host of other formal and informal regional agreements including the Djibouti Code of Conduct and diplomatic “exchanges of letters” between the Republic of Kenya, the EU, Britain, and the United States. For an insightful summary of some of these documents see: Guilfoyle, Douglas “Counter-Piracy Law enforcement and Human Rights” International and Comparative Law Quarterly, 59 (2010): 141-169.

 

(This review will be published in the forthcoming issue of the Central European University Political Science Journal, April 2011)