The Enemy of All

Heller-Rozen, Daniel. 2009. The Enemy of All: Piracy and the Law of Nations. Boston: Zone Books.

Daniel Heller-Rozen’s The Enemy of All departs from a deceptively simple question: How is it that the pirate came to be the original enemy of human kind? His genealogy spanning from classical antiquity to the early modern era shows us how the pirate became “an unjust antagonist unworthy of [normally constituted] rights” (10). He finds four main historical threads that form the controversial fabric of the piratical paradigm: a geographical space of exceptional legal rules (e.g. the sea or air space), an open and generalized social antagonism (especially viz. states), a blurring of the criminal and the political, and, finally, a transformation of the concept of war, particularly by blurring internal and external security procedures.

As the book jacket explains, “The pirate furnishes the key to the contemporary paradigm of the universal foe. This is a legal and political person of exception, neither criminal nor enemy, who inhabits an extraterritorial region. Against such a foe, states may wage extraordinary battles, policing politics and justifying military measures in the name of welfare and security.” The vast web of obligations that Cicero believed conjoined people into “a kind of natural fellowship” applied even in war, wherein even enemies were restrained by some degree of mutual obligation. But not with all enemies. Pirates, Cicero argued, were totally beyond the pale and of such “bad faith” they should be irreparably excluded from any mutual obligation (15-17).

Beginning with Cicero, Heller-Rozen wonders:

How, and in what terms, did it become possible to conceive of the deeds of pirates as exceptional with respect to criminal and political categories, as either felonies committed in a space beyond the normal jurisdiction of the law or as belligerent acts carried out by agents lacking any legitimate public title to wage war. (29)

In other words, how are particular people shunted into that gaping legal abyss—void of all legal protections—formed at the interstice of being neither “criminal” nor “enemy.” Pirate, says Heller-Rozen, was the original wedge. It emerged not in a time before the “establishment order on land and sea but to the time that is, instead, strictly simultaneously with it” (38). “Pirate” presupposes some sort of legally established authority, but with some sort of exteriority to the law; and, moreover, an exteriority that takes on a quite physical spatial form: the sea. “There, in a region that remains obscure yet still visibly past the limits of the ancient polity, the pirates may find a home” (38). Sometimes, the very legal designation of an area free of pillage (the sylan, as in “asylum”), implicitly confirmed another area as subject to pillage (46).

The sea and the seashore presented a legal conundrum for early Western jurists (Chapter 6), while the ship itself further exhibited this profound legal confusion (Chapter 7). The sea and the ship as differential legal spaces made them a legal netherworld of exception, where the terrestrial human laws are suspended. The legal machinations increasingly put the pirate beyond the pale to the point that:

The pirate ship is not a place, nor may it be considered from the point of view of the law as if it were within another place. Its legal status can hardly be told apart from that of the exceptional medium in which it moves. Like the high seas over which it sails, the vessel of the universal enemies is nowhere, no one’s, and exposed, therefore, to being legitimately captured by all. (131)

Corsairs and other state-sanctioned privateers may have predominated for a while, but the pirate was always there. Pirates were the shadows of their legal counterparts, a shadow that extended into the books of international law. Pirates were increasingly conceptualized through legal categories of just and unjust enemies—or, correspondingly, public enemies or private enemies. Unjust, private enemies were driven by hatred and greed, while just enemies represented totalities and sovereign powers. As in the sylan, the designation of a legal and just enemy simultaneously cast a “shadow of the unlawful combatant [that] continued to be close at hand” (102). With the increasing consolidation of violence in the hands of the state and the institutionalization of war, “The definition of war as public, official, and armed confrontation of supreme sovereigns evidently leaves little room for bandits, at least as acceptable belligerents” (106).

The introduction of submarines introduced a dimensionality of depth to the spatial implications and allegations of piracy. “The underwater vessel could be, and indeed was, employed against ships of state, it itself resisted, by its form, adherence to the rules established by law” (135). The hijacking of planes was also conceptually cast by some into terms of piracy, raising questions of air space. Horrified, many described such crimes as an indiscriminate attacks against humanity—as an extension of the “enemy of all” such a conclusion was not a difficult leap. Obviously, the universal foe, the enemy of all, continues to echo in today’s forms of global violence.