skip to content
Tuesday, 21 November 2023

Tor Krever joined the University of Cambridge in 2023. He was previously Assistant Professor at the University of Warwick, Visiting Research Fellow at the Centre for Social Studies, University of Coimbra in Portugal and Visiting Fellow at the Universidad Javeriana in Bogotá, Colombia. He was educated in Australia, the US and UK, completing his PhD in Law at the London School of Economics.




Pirates in the Legal Imagination

Pirates have always been ambiguous figures. On stage and screen alike, from Gay’s Polly and Gilbert and Sullivan’s The Pirates of Penzance to Errol Flynn’s Captain Blood and Johnny Depp’s Jack Sparrow, the pirate evokes a figure at once heroic and violent. Yet, while being celebrated by some as rebellious outcasts resisting an exploitative social order, pirates have tended to fare less favourably in legal treatments. 

Legal commentators have long cast the pirate as the archetype of illegitimacy. In 1769, William Blackstone insisted that piracy is ‘an offence against the universal law of society’, the pirate so villainous that ‘all mankind must declare war against him’. Today, this image of the pirate as an international scourge deserving universal reprobation is a staple of international legal discourse. When, a little over a decade ago, piratical depredation along the Somali littoral reached its peak, commentators were quick to cast Somali depredators in a familiar mould. They were, lawyers opined, hostes humani generis, the ‘enemies of all mankind’ and the ‘enemies of civilization itself’. 

This figure, and the discourses about it, are rooted in a tradition of international legal thought that regularly draws on, and reproduces, the pirate as an archetypal figure of enmity, the model for the treatment of other proscribed forms of violence: the slave trader, torturer, war criminal, terrorist, and so on. When, in the wake of the events of 11 September, 2001 the US and its allies announced a ‘war on terror’, the pirate offered a familiar shorthand for illegitimacy and censure and an analogous figure for the treatment of terrorists. ‘On the high seas if you saw a pirate, you sank the bastard. You assault pirates, you don’t arrest [them]’, counselled one US lawyer. 

If the pirate and its role as analogue is familiar to international lawyers, where and when did this figure, with its extreme enmity, first emerge? Contemporary international legal writing tends to reproduce the pirate as a figure of abstract enmity, presenting it as transhistorical and timeless, stretching as far back as Antiquity or beyond. Yet for much of history, the pirate and the maritime depredation with which it was associated remained fundamentally ambiguous. In the medieval Mediterranean, for instance, plunder and trade were intimately related, piratical acts of depredation a common, even accepted, feature of maritime life. The pirate may have been a nuisance, but it was hardly a civilisational threat. Indeed, my own work shows that the pirate’s juridical identity has been marked by fundamental discontinuities and transformations. 

I locate the emergence of a distinctly modern figure of the pirate, the hostis humani generis with its universal enmity and existential danger, in the long 16th century. Its enmity in fact, I suggest, had its roots, at least initially, in Christian theological traditions. Long associated with the devil as a universal enemy of Christianity, the hostis humani generis came to be associated with pirates in the context of the threat posed to Christian Europe by an expanding Ottoman empire. The universal enemy of medieval Christian theology came to be embodied in the Christian European imagination by the Ottoman empire and its western Mediterranean vanguard, the pirates of the Barbary coast. At once figures of religious enmity and piratical plunder, the Muslim pirates of northern Africa were assimilated to other demonic foes of Christendom, an ideological association encouraged by a Habsburg state eager to rally the faithful against the heretical threat to the east.

The universal enmity of the pirate was soon projected into an Atlantic marked by inter-imperial rivalry between the Habsburg empire, with its claimed monopoly on the Americas rooted in papal donation, and a nascent English imperial formation seeking to challenge Habsburg power and establish a maritime empire. For the Spanish, the colonisation of the New World, and the spiritual salvation of its native population, was a mission in the service of a universal Christendom, yet one increasingly challenged by Protestant interlopers epitomised by Drake’s plunder along the Spanish Main. Protestant piracy was easily assimilated in the Spanish imperial imagination with Islamic piracy in the Mediterranean: both were heretical foes who interfered with Spain’s Providential mission. 

Of course, for British publicists, Drake was not pirate but hero. Elizabethan England was in the early grip of a new commercial disposition, with British merchants eager to extend English maritime power. National perceptions of Drake’s depredations were shaped by outrage at England’s exclusion from profitable trade in Americas: his violence was perceived as a legitimate response. Such a view could also be found in the work of Hugo Grotius and his attempts to justify Dutch maritime violence in the face of an Iberian monopoly on trade with the East Indies. In Grotius’s De iure praedae, one finds a novel grounding of the legitimacy of Dutch commercial violence in a theory of natural rights including a right to commerce. It was not the Dutch who, in attacking Portuguese shipping, should be considered pirates, but rather the Iberians who, in restricting access to the Indies, did violence to Dutch rights. The pirate’s illegitimacy, on Grotius’s telling, rested not on a heretical challenge to a universalising Christianity but to a universal right of trade. The figure of the pirate with which Grotius leaves us is the enemy of a humanity synonymous with commercial society and capital accumulation.

It is this new secular figure of enmity, I suggest, that is produced and reproduced in modern legal thought. Piratical depredation increasingly posed an impediment to the smooth flow of commerce, wreaking havoc on trade and disrupting imperialism’s maritime zones of capital accumulation. By the time Blackstone urged a universal war against the pirate, its status as the enemy of humanity was intimately tied to the commercial imperatives of capitalist development. ‘Suffer pirates, and the commerce of the world must cease’, warned the Admiralty judge Sir Charles Hedges in 1696. ‘So destructive of all trade and commerce’ was the pirate, the Vice-Admiralty judge Nicholas Trott remarked soon after, that they ‘are called enemies to mankind’.

With its gradual shift from religious enmity to commercial enmity, the origins of the figure of the pirate in international legal thought might then be understood as of a piece with the juridification of the oceans in the service of capital. The construction and suppression of the pirate as hostis humani generis, as Foucault once remarked, was concomitant with the juridical constitution of the world market and securitisation of the sea as a space safe for commercial circulation.  But like a palimpsest, the figure’s older theological meaning continued to lurk beneath the new. Pirates would continue to be held up, Markus Rediker has observed, ‘as the antithesis of the Christian way of life’. And in the Somali pirate of today’s international legal discourse one finds a supposed heinousness rooted at once in a racialised and confessional othering and in their threat to the flow of commodities and commerce through one of the world’s busiest pelagic highways. 

This article first appeared in Lauterpacht Centre News (LCN) - November 2023

Blog tags: