>> Sunday, December 06, 2009
Daniel Heller-Roazen's The Enemy of All studies the genealogy of the term "pirate," and the impact that the term has had on the development of Western international law and the laws of war. Beginning with Cicero, he focuses on the way in which legal theorists have excluded the category "pirate" from the benefits and obligations of law, while including other superficially similar groups such as "bandit," "rebel," or "thief." While Heller-Roazen may have taken inspiration from the recent increase in piratical activity in Southeast Asia and off the coast of Somalia, the book isn't about pirates as much as it is about the development of Western law.
The definition of piracy has shifted over time, but certain themes recur. Pirates are treated as lawless men, both individually and collectively. This is true even when it is acknowledged that certain nations of peoples regularly engage in the practice of piracy. Pirates act predominantly for private gain, although the distinction between pirate and privateer didn't develop until the second half of the second millennium CE. Indeed, I suspect that the concept of privateer is a response to the development of formal naval organizations, the existence of which forced the creation of a separate category for the private actors who had traditionally engaged in state-sponsored maritime warfare. Although Heller-Roazen doesn't dwell on the point, I think a closer examination of the development of the privateer distinction in this direction would be productive; lest we forget, one of the most important parts of Jack Aubrey's job was to attack and seize enemy commerce, for which he was able to keep a substantial portion of the proceeds.
The other major requirement is the medium in which pirates operate. The term pirate suggests an implicit distinction between those who rob at sea and those who rob on land. Cicero made this more explicit by indicating that robbers on land remain part of the web of obligations, while no obligation is owed to pirates. Heller-Roazen argues that the key distinction is that pirates are lawless men who operate in a lawless space. In Western conceptions of law, from the Romans forward, the sea has stood as a legally exceptional zone. Those who rob within this exceptional zone (assuming they don't work for a state, in uniform or no) are a special class of villain, to whom no mercy or legal obligation is owed. Heller-Roazen further argues that Western legal thought has periodically become preoccupied with the question of what differentiates legitimate and illegitimate combatants. Indeed, he argues that the most of what we regard as the laws of war depend to some extent on such a distinction. He quotes Cicero extensively on the topic, as well as Grotius, Kant, and Carl Schmitt. For the latter, one of the contexts concerns the question of whether submarine warfare should be understood as piracy or as a legitimate warfare. Interestingly enough, Schmitt further argued that a "war on pirates" is a contradiction in terms; war is political, while belligerency against pirates constitutes a non-political act.
Heller-Roazen doesn't touch on the topic, but I'll confess that I'm quite curious regarding how the term pirate came to be associated with violations of intellectual property law. Why are people who steal music "pirates," rather than "thieves?" I'm not a pirate when I steal a DVD from Wal*Mart, but I am when I download the same movie from the internet. I suspect that the answer is relatively straightforward; the internet resembles, in its lawless nature, the sea. Thieves operates in a space where law exists and can (at least theoretically) be enforced, while pirates operate outside the law. As this book is really more about how piracy has been conceived in relation to the law than it is about, you know, pirates, I think it would have been productive for Heller-Roazen to track down the origins of the application of the term piracy to IP violators. Of course, no one has ever suggested that IP pirates stand outside the web of legal obligation, even as some argue that Somali pirates represent the enemy of all and should be executed on the spot. [See here for more info on the apparently long history of IP "piracy".]
The last chapter and the conclusion turn to the question that must have been obvious in the minds of most readers from the start: To what extent can this genealogy of the concept "pirate" shed light on the conceptualization of the other enemy of all, the modern stateless terrorist? The answer, unsurprisingly, is complicated. One problem comes with the opening of a new "lawless" medium, the air. Some air hijackers share some characteristics with pirates, although the concordance is rarely complete. Another problem comes from the question of whether the pursuit of political aims not explicitly framed in terms of the state can be considered political in the sense needed to justify the term "war." Irish or Palestinian terrorists, for example, can legitimately be considered to be waging war on behalf of a (nascent or incomplete) state/national collective. This is less true, however of terrorists acting on behalf of international communism or some nebulous vision of jihad. These terrorists escape or reject territorial authority and consequently act, in some relevant sense, in a lawless space. If this kind of struggle is not political (and it falls outside some definitions of the term), then the phrase "Enemy of All" could be applied to certain terrorists. Heller-Roazen again draws on Schmitt to think about these questions, emphasizing the debate rather than coming to any specific answers about the legitimacy of particular characterizations.
I suspect that legal scholars who wish to treat Al Qaeda terrorists as a separate, distinct, and novel category of combatant would draw a certain degree of comfort from Heller-Roazen's account of the term piracy, for two reasons. The first is that Western law has, in fact, pretty much from its inception agreed that there are certain enemies who do not merit the protection of law, or even contractual reciprocation. While pirates have traditionally occupied this nether region, Heller-Roazen explains that there are plausible ways in which terrorists could be conceptualized as the enemy of all. In fact, he quotes John Yoo making the explicit connection between pirates and terrorists. Second, Heller-Roazen demonstrates, as any genealogy will, the contingency of the legal terms that we deploy to characterize enemies. The terms "criminal," "war criminal," and "POW," aren't as cut and dried as we might want to believe. Thus, the notion that a novel legal category might be developed to describe terrorists is not so far beyond the pale.
None of this is to say that Heller-Roazen condones, or in fact has any normative position at all, regarding the legal categorization of terrorists by the Bush administration. Rather, he implies that the forms of reasoning employed to determine the status of such detainees are not alien to the Western legal tradition, which has always defined some combatants as illegal. In any case, the book is short, densely argued, and worthwhile for those interested in the development of international law.