The Enemy of All: Piracy and the Law of Nations, and: The Invisible Hook: The Hidden Economics of Pirates (review)

Pirates have traditionally been seen as brutal villains or dashing rogues. Modern historians, however, have recast pirates as radical social innovators whose most important transgressions were in the area of sexual and social norms.¹ Two recent books find yet new meaning in the history of maritime bandits. Heller-Roazen’s The Enemy of All sees piracy as the paradigmatic meme for international outlaws, a conceptual prototype for today’s terrorists. Leeson’s The Invisible Hook sees the motley crews as miniature libertarian societies, in which welfare-maximizing rules emerge in the complete absence of governmental regulation.

An Enemy of All offers an intellectual history of piracy. The approach is literary and philosophical, tracking the genealogy of the concept hostis humani generis (enemy of all mankind), which for centuries, and perhaps millennia, has been associated with piracy. Heller-Roazen traces piracy through the writings of philosophers from Cicero to Carl Schmitt. His central inquiry concerns how pirates were conceptualized as literal outlaws in legal and political thought. Because they stand ready to attack the shipping of all nations and are backed by none, pirates exist outside any legal structures. Anything may be done to them by anyone.

After establishing piracy’s conceptual genealogy, Heller-Roazen attempts to identity its progeny. Today, he claims, the concept of piracy has expanded to land. The category of enemy of all mankind has been extended to the perpetrator of “crimes against humanity,” as well as the partisan and the terrorist. Just as pirates were neither criminals nor military foes, terrorists captured by the United States under the Bush Administration were given the status of “illegal combatants,” a paradigm neither fully legal nor military.

The literary approach of The Enemy of All falters when it attempts to connect the historical concept of piracy to current events. Law is not simply conceptual; it is eminently practical. One cannot understand it simply by looking to legal labels, which are often acknowledged fictions. The very notion of the pirate as an “enemy of all mankind” describes a legal conclusion—that any nation can prosecute him—rather than the underlying reality.²

Much conduct has been grouped under the label piracy that has little connection to maritime robbery. Heller-Roazen offers the name of a French anti-terrorism program to support his contention that the piracy paradigm has been extended beyond the seas. The name of the program, Le Plan Vigipirate, is an “obscure allusion to the mast up which seafarers of another epoch climbed to look out for the ships of illegal plunderers” (177–178). Perhaps. But law is not allusive. To make the connection between modern international criminals and pirates requires more than the occasional use of similar vocabulary. Indeed, piracy has a broader connotation of predation and illegality without any international or extralegal connotations—software “piracy,” for example. Even centuries ago, treatise writers bemoaned the fact that unbridled use of the term piracy led to intellectual confusion.

Heller-Roazen offers little additional support for his surprising conclusion that terrorists are modern pirates (in the sense that they do not receive protection from civil or military law) aside from a stray quotation of John Yoo, which likens terrorists to pirates.³ This casual remark hardly establishes the proposition. Indeed, today’s international terrorists are, unlike sea pirates, not the enemies of all; they are in sympathy with, and often armed or controlled by, particular nations. Moreover, in the United States and elsewhere, courts have repeatedly ruled that such individuals do fall within the protection of the law, though the law might punish their conduct. In fact, international law does not even recognize a crime of terrorism—because one man’s terrorist is, far from the enemy of all, another man’s freedom fighter.

Leeson...