WHY PIRATES ARE BACK

LS07CH17-Dawdy ARI 26 September 2011 9:6

Why Pirates Are BackShannon Lee DawdyDepartment of Anthropology, University of Chicago, Chicago, Illinois 60615;email: [email protected]

Annu. Rev. Law Soc. Sci. 2011. 7:361–85

First published online as a Review in Advance onAugust 23, 2011

The Annual Review of Law and Social Science isonline at lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev-lawsocsci-102510-105433

Copyright c© 2011 by Annual Reviews.All rights reserved

1550-3585/11/1201-0361$20.00

Keywords

sea piracy, intellectual piracy, sovereignty, Somalia, South China Sea

Abstract

At the dawn of the twenty-first century, we are witnessing the birthof a new pirate age both in international waters, where fights over oiland fish extraction echo colonial wars over silver and slaves, and in the“high seas” of a global information society. This article reviews thesefast-growing phenomena and shows how they relate to one anotherand to a broader proliferation in types of sovereignty, as well as therebels they engender. Piracy forces open the cracks of legal sovereign-ties, revealing an intensifying contradiction in what ought to be calledneoliberal mercantilism.

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PIRATES SEIZE HEADLINES

In September 2008, a group of Somali pirateshauled in a bounty they had not anticipated.When they entered the hold of their prize, theUkrainian freighter MV Faina, they found 32Soviet tanks, 150 grenade launchers, and 6 anti-aircraft guns. After a months-long standoff withan international flotilla of naval ships and nego-tiations with the ship’s owners, the pirates weresuccessful in winning $3.2 million in ransom.They were less successful in convincing journal-ists or officials of their discovery of paperworkon the ship that showed that, rather than a des-tination of Kenya, as reported, the shipmentwas on its way to southern Sudan with tacitU.S. approval, despite a UN ban on arms ship-ments to that country. In late November 2010,WikiLeaks’s massive disclosure of U.S. StateDepartment cables revealed that the pirates’ in-telligence was reliable (Gettleman & Gordon2010).

During these same months, the nonpareilof contemporary privateers, Blackwater World-wide, was trying to figure out how to make somecash off this pirate business. They retrofitted a183-foot oceanographic research ship dubbedthe McArthur with machine guns and a droneaircraft while CEO Erik Prince arranged fora promotional event in Djibouti (formerlyFrench colonial Somaliland) to drum up busi-ness as pirate hunters. The Blackwater endeavordid not get very far, in part due to the lack ofinterest of the new Obama administration, butalso due to a near mutiny on the privateer shiptriggered by the abuses of the captain (as re-vealed by several ensuing lawsuits). In its com-munications with government officials, Black-water was essentially looking for a license tooperate, although executives admitted to U.S.embassy officials that there was “no precedentfor a paramilitary operation in a purely com-mercial environment,” nor was it clear what le-gal jurisdiction would apply to captives. Theirsolution was simple: “Blackwater does not in-tend to take any pirates into custody, but willuse lethal force against pirates if necessary”(Mazzetti 2010). Although Blackwater’s entree

into the antipiracy sector had been reportedpreviously, Blackwater executives’ understand-ing of the legal and economic context andtheir candid dialogue with U.S. officials werenot known publicly until the November 2010WikiLeaks exposure.

Julian Assange, the founder and public badboy of WikiLeaks, has been held up as the pre-mier latter-day intellectual pirate by those whoadmire him and by those who would like tocriminalize him, whether on international se-curity grounds or because of alleged sex crimes.His counterpart, Peter Sunde (himself undersiege by legal attacks), figurehead of the con-troversial BitTorrent download site known asThe Pirate Bay, has identified WikiLeaks asone of the most important efforts in a growingworldwide political movement to create a freeinformation society (Daily Mail 2010, Michaels2010).

These connections between the simulta-neous rise in contemporary sea piracy andintellectual piracy—as well as the increasinglymilitant suppressions of both through inter-national cooperation—are not coincidental.There are cogent parallels between the twotypes of piracy and the conditions, both historicand recent, of their seemingly explosive growthin the first decade of the twenty-first century.The dramatic rise in both types of piracy hasleft not only governments and policy makersscrambling to figure out a response, but alsosocial scientists. Although historical studiesof classic Caribbean piracy have matured anddeepened over the past 20 years and interestin intellectual piracy has burgeoned in severaldisciplines, relatively little attention has beenpaid to late modern and contemporary seapiracy. We are especially impoverished inclose-up qualitative studies of societies wherepiracy is flourishing, whether in fishing villagesor in online communities.

As a result, this article must perforce be asmuch an overview of the phenomena as of theliterature. Sources range from journalism, tolegal and policy papers, to economics, ethnog-raphy, and history. Once placed in the sameconstellation, these materials begin to sketch

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some important patterns that show piracy to bea site not only of heightened activity, but also ofheightened fantasy and anxiety. Piracy is botha reality and a metaphor for the neoliberal,postnational age. Like piracy of yore, its moralstatus is ambiguous, and it is unclear whetherpirates represent a dominant, neoliberalGemeinschaft that is exaggerated to monstrousproportions—an ethos of take what youcan—or whether they represent a free-culturerevolution that may spell the end of millennialcapitalism (Comaroff & Comaroff 2001). In thetheater of law and politics, I argue that piracyrobs the emperor of his clothes—exposingcontradictions within neoliberal capitalism andtensions over sovereignty stretching acrossseveral domains: national, international, andinformal (for more on pirate economies, seeDawdy & Bonni 2012). These undercurrentsare not unfamiliar to students of the buccaneersand brethren of the Caribbean. In a cross-temporal comparison, issues of sovereignty andof the twinned circulation of goods and ideas,which both excited and worried people duringthe early modern Atlantic period, echo withuncanny familiarity today. Three centuriesago, the crises and protests of pirates andsmugglers were major forces that precipitatedthe Age of Revolution (Lane 1998, Linebaugh& Rediker 2000). The agitations of today’spirate battles are worth attending to, despitethe temptation to trivialize the self-fashioningof pirates in consumer culture as a romanticlabel for solipsistic appetites. The pirate labelas used by The Pirate Bay and other intellectualpirates has a strong and steady history reachingback to the time of Sir Francis Drake, oftensymbolizing an ideology that is both antistateand anticapital ( Johns 2010). Piracy today isrising across three fields simultaneously: seapiracy, intellectual piracy, and representationsin popular culture. Because of space constraintsand a goal of filling what is the largest gap, Ifocus primarily on the first, while showing howit is related to the second and third fields.

In the following three sections, I firstprovide an overview of the facts on the groundregarding contemporary sea piracy. The second

section briefly draws on historical comparisonsto classic Caribbean and colonial piracy in theSouth China Sea. In the third section, I expandthe comparison to intellectual piracy to elicitthe ways in which both types of piracy appearto be accelerating crises in sovereignty andrevealing precipitous contradictions withinneoliberalism. I conclude by looping back torecent studies of sovereignty in the social sci-ences, which suggest that piracy may representa more steady state than sovereignty.

THE NEW SEA BANDITS

The most detailed and timely source forstatistics on reported piracy is the InternationalChamber of Commerce’s Commercial CrimeServices wing, which hosts a Web site where theinterested viewer can open a live map of currentpirate attacks around the globe or comparemaps of pirate attacks for successive years since2005 [one can even request continuous updatesof pirate attacks via Twitter (Int. Chamb.Commerce 2011)]. The Chamber is fed datafrom the International Maritime Bureau(IMB), which maintains a 24-hour PiracyReporting Centre in Kuala Lumpur, Malaysia.Because reports are voluntary, they likelyrepresent only incidents involving large shipsor those for which insurance claims were made.Nevertheless, the statistics indicate that seapiracy has seen a rapid rise since the early1990s when the IMB first began tracking, withsome year-to-year fluctuations in hotspotsattributable to local political, economic, andecological conditions.

One would have to be a castaway on adesert island to be ignorant of the recent surgein piracy off of the coast of Somalia, whichgrew 200% between 2007 and 2009 and spikedfurther between 2008 and 2010. Nevertheless,reported sea piracy occurs across the globe andis growing in frequency, particularly in narrowshipping lanes and ports newly bustling withglobalized trade. In 2007, the highest numberof reported attacks occurred in Indonesianwaters, but in the first quarter of 2008,Nigeria took the lead until it was edged out

www.annualreviews.org • Why Pirates Are Back 363

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by Somalia (Passman 2008). In Asia, the IMBconsiders high-risk areas to be Bangladesh(Chittagong), Indonesia (particularly theAnambas, Natuna, and Mangkai islands), theStrait of Malacca, Malaysia (particularly PulauAur and Tioman), the Singapore Strait, andVietnam (especially near Vung Tau). Overall,the entire South China Sea is seen as a futuregrowth area for piracy by what the IMBcalls, not quite euphemistically, Pirate ActionGroups (Int. Chamb. Commerce 2011).

In Africa, beyond the well-known hotspotsof the Gulf of Aden and the Red Sea, Nigeriahas seen attacks that target vessels involvedin rapidly expanding oil exploration. Conakryin Guinea and Douala in Cameroon havealso witnessed recent attacks. In East Africa,attacks have spread up and down the coast andwell into the Indian Ocean, touching Kenya,Tanzania, Oman, Yemen, the Seychelles,and Madagascar. Pirates of presumed Somaliorigins have also been reported as far eastwardas coastal India and the Maldives. AlthoughNorth America and the Caribbean were oncehavens for pirates, today their waters remainrelatively quiet.1 In South America, rashes ofpiracy in recent decades have occurred in ornear the ports of Santos, Brazil, and Callao,Peru (Int. Chamb. Commerce 2011). Piracycases are rarely reported in Europe, althougha recent exception in the Baltic may have beeninspired by Somali examples (Belton 2009).

In 2010, there were reports of 445 attacksand attempts. Thirty-one of these attemptswere in the South China Sea, a nearly threefoldincrease over the previous year. Piracy alsorose dramatically in 2010 in Indonesia. Still,nearly half of attacks in 2010 (221) wereattributed to Somali pirates, whose tacticsdistinctively and ambitiously involve seizingentire ships for ransom. Increasingly, they areholding crewmembers hostage as well. Duringthis period, 1,181 hostages were seized and 8

1When drug smuggling turns violent, the line may be hard todraw. A recent, unusual exception, which involved the murderof an American man on a jet ski in the Falcon Lake reservoirbordering the United States and Mexico, was referred to aspiracy in news reports ( Jonsson 2010).

crewmembers were killed, but until a recentescalation between Somalis and U.S. navalforces, contemporary sea piracy has rarelyinvolved homicide (Int. Chamb. Commerce2011, MacAskill & Rice 2011).

Although comprising several distinct groupsthat continue to change in composition, organi-zation, and affiliation, as a whole Somali piratesare undoubtedly the most visible and perhapsbest organized sea pirate culture today. Despiteseveral high-profile incidents and an interna-tional crack down that began in 2008, Somalipiracy has not significantly diminished. Instead,pirates are simply moving further into interna-tional waters, where detection and tracking aremore difficult. Although the definition of piracycan include almost any organized propertycrime committed at sea (theft of cargo, of crew’seffects, of the ship itself )—and does take thesevaried forms across the globe—the predomi-nant Somali tactic is to capture a ship and holdit, its cargo, and/or its crew for a large ransom.Once they have captured a ship, the piratesbring the vessel to the Somali coast and waitout the often long negotiation process, usuallysuccessfully. In March 2011, the time of thiswriting, Somali pirates were thought to be hold-ing 28 vessels and 587 hostages (Cowell 2010,Gettleman 2010b, Int. Chamb. Commerce2011).

Although pirate attacks covered by theIMB’s statistics include seizures of the occa-sional small fishing or recreational vessel, mostof the tracked attacks along the east coast ofAfrica are of large cargo ships or tankers heldfor ransoms typically in the $1–2 million range.Piracy pays well, and revenues are rising. In2008, Somali pirates are estimated to havemade more than $100 million collectively and,in 2009, possibly as much as $300 million. Theyear 2010 saw what is believed to be the highestransom so far—$10 million for a South Koreansupertanker (Gettleman 2010a,b). Piratecrewmembers have reported netting anywherefrom $20,000 to $150,000 per expedition, mak-ing economic motivations understandable inan area where, until the dawn of this new pirateage, international trade had been cut off due

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to civil war and where food shortages were aconstant struggle due to both ecological andpolitical conditions.

Putting Somalia in Historicand Ethnographic Context

Although it is impossible to do justice to thedaedal politics of Somali history in a brief re-view, some background is warranted to con-textualize sea piracy and the timely questionsof sovereignty it poses. The land now calledSomalia has been an important nexus of tradefor centuries; lying along one of the main ap-proaches of the Silk Route, it was a supplierof gold, frankincense, and myrrh in the MiddleAges. This cultural area served as a bridge be-tween Muslims on the Arabian peninsula andthose of sub-Saharan Africa. Somaliland as anethnic homeland roughly corresponds to Is-lamic speakers of the Cushitic Somali languagewho also claim ancestral kinship. This popula-tion has never been united under a single po-litical tent, although those with imperial ambi-tions, such as Ahmad ibn Ibrihim al-Ghazi ofthe sixteenth-century Adal Sultanate and, morerecently, military dictator Mohamed Siad Barre(ruled 1969–1991), have tried.

In East Africa, self-identified ethnicSomalis are found in Djibouti, Kenya, Ethiopia,Yemen, and the state formerly known as So-malia (terminology akin to that used for theformer Yugoslavia is entirely apt to the currentsituation, although it has not been widelyadopted). Although the French succeeded inestablishing the curiously quiet trading colonyof Djibouti (also known as French Somaliland,ca. 1894–1977), which Somalis share withthe Afar ethnic group, the rest of the Somalihomeland was a battleground for competingEuropean powers from the late nineteenthcentury through decolonization in the 1960s[primarily between the British and the Italians,although the Germans and Ottomans also tookan interest (Hess 1964, Lewis 2003)]. Throughtreaties involving these European powers andtheir chess games throughout the continent,the political boundaries of East African states

frequently shifted in the twentieth century,such as when Britain ceded a large part ofSomaliland to Ethiopia in the 1940s as a payofffor military assistance in earlier contests.

The people of Somalia are known forfiercely resisting European colonization, par-ticularly through the leadership of Sufi leaderMohammed Abdullah Hassan, credited withestablishing the Dervish State in the early twen-tieth century. In 1920, the British won a short-lived victory and stitched together a new colo-nial state out of distinct regions ruled by localkings, but they lost southern Somalia to the fas-cist Italian government between 1927 and 1941.After the war, the British responded to inter-national pressure to decolonize by incorporat-ing Somalia into the Commonwealth; duringthe same period, Italy continued to oversee thesouth through a less direct form of rule called atrusteeship (Hess 1964, Lewis 2003). The twoareas were united in 1960 with independence,but experiments in democracy were cut shortby a military coup in 1969. Somalia was ruledby a military dictatorship from 1969 to 1991,backed first by the Soviet Union and then by theUnited States. Since its postcolonial creation,Somalia has been involved in border disputesand wars with neighboring Ethiopia and Kenya.The fall of dictator Siad Barre came at the handsof several rival groups variously identified byclan affiliation, ethnicity, religion, and/or po-litical ideology (Besteman 1997, 1999; Massey1994).

The short-lived former state of Somaliais now divided into four political zones,three of which have proclaimed independentsovereignty and the fourth of which is stillembroiled in civil war, split up among a dizzy-ing number of local players. The Republic ofSomaliland in the northwest along the Gulfof Aden seceded from the rest of Somalia in1991 and has remained relatively stable, butit has not yet been diplomatically recognizedby the international community. It disputes aborder with neighboring Puntland, at the tip ofthe horn, which operates semi-independentlywhile holding out for the possibility of a secularSomali federation (a hope fed by international


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assistance and the promise of one of therichest untapped oil reserves in Africa), asdoes neighboring Galmudug. Leaders in thesetwo regions are active in cooperating withthe Transitional Federal Government (TFG),which is the only state-like entity having inter-national legal recognition, being a creation ofthe United Nations and the African Union withstrong U.S. backing. The region that continuesto be rocked by civil war is the far south, hometo Somaliland’s historic capital and main port,Mogadishu, where UN peacekeepers haveattempted to extend the TFG. The coast ofsouthern Somalia is distinct for its greater eth-nic and religious diversity among the region’ssailors, fisherman, and traders, including theBenadiri, Bravanese, Bantu, and Bajuni, as wellas descendents of Persian and Indian tradersand European colonists. Some Bantu speakers,forcibly relocated to the area because of slaveryin the nineteenth century, continue to practicenontext polytheism. Although the region asa whole remains predominantly Muslim, ithas become a contested terrain for competingIslamic groups, with splits among fundamen-talists, moderates, Sunni, Shi’a, and Sufi. UNpeacekeepers have periodically attempted tostabilize relations among warring factions,particularly in and around the capital ofMogadishu (including the famous and bloodyBlack Hawk Down incident of 1993), but manyactors do not recognize the legitimacy of theforeign-backed TGF, which contributes toresistance fighting (Lewis 2010, Walls 2009).

Anglophone knowledge of Somali colonialhistory and ethnography comes from a handfulof scholars. One of the most influential figuresis I.M. Lewis, a British social anthropologistwhose long career has been devoted to studyingthe nomadic pastoralists of northern Somalia.2

In A Pastoral Democracy, Lewis (1961) arguedthat segmentary clans comprised the majororganizational structure of Somali social andpolitical life, with groups feuding and rallying

2Lewis’s (2003) A Modern History of the Somali has gonethrough four editions and remains the thickest historicaloverview of the region prior to the dictatorship.

together without great regard for territory orwritten law (although a set of indigenous cus-tomary laws called Xeer provided a strong basisfor adjudicating conflicts, and Shari’a was alsoinvoked, particularly in urban communities).In his view, Somali culture is predisposed tounderstand, but reject as illegitimate, state-likeinstitutions and formal law. Such politicalforms are seen as foreign attempts to usurplocal customs and authorities rooted in kinshipand Islam.

Lewis continues to pull this last thread inhis latest work (Lewis 2010), a collection of es-says that follows Somali politics since decolo-nization. He argues that “[t]raditionally, Somalisociety is extremely uncentralized and individu-alistic to a point verging on anarchy” (p. xix) andthat “Somalis have an unusually wide-rangingtolerance of the absence of centralized govern-ment. From a traditional perspective indeed,they could be said to need states less than statesneed them!” (p. xx). He shows how Somalia asa whole can be seen as the paragon of a failedor lapsed state but also explains how this is notthe same condition as an absence of politicalsovereignty or power. He notes that soon afterthe dissolution of the dictatorship, a quite ef-fective and stable grassroots government arosein the north—the Republic of Somaliland—butironically, due to the lack of international in-volvement or oversight, this indigenous state isstill unrecognized on the global stage. In thesouth, Lewis writes, the peace process has beencomplicated rather than aided by internationalassistance when agencies and actors deploy tac-tics that go against the grain of local culture.Another source of international meddling isthe arrival of Saudi fundamentalist and jihadistmovements (including some with credible al-Qaeda ties), which have created profound splitswithin Somali communities, many of whichcontinue to adhere to Sufism.

In the 1990s, Lewis (1998) engaged inan acrid debate with Besteman (1996, 1997,1998), who is among a younger generationof East African ethnographers attemptingto account for Somalia’s failed state. Lewisand Besteman agreed about the territorial

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dissonance created by colonial interventionsthat made the emergence of a fully nationalSomali state in the twentieth century difficult.However, in these articles and a 1999 book,Besteman takes Lewis and others (e.g., Laitan& Samatar 1987) to task for essentializingSomali clan schizmogenesis. In her eyes, thischaracterization naturalizes the post-1991dissolution of Somalia as inevitable whileglossing over other kinds of segmentations,which are historically embedded within Somalisociety—especially class, race, and regionaldivisions—that have added fuel to sectarianviolence. She emphasizes global economicand political forces—especially capitalism andthe Cold War—over what she sees as Lewis’sinternal “primordialist” explanations (Beste-man 1998). Although she points to colonialinterventions and exacerbations of the Barreregime for stirring class resentments, she tracesracial divides thinly masked as clan and castedistinctions to a regional history of slavery.

As I show below, this basic divide in ex-plaining the collapse of the Somali state, hererepresented by two anthropologists, is echoedin the literature on contemporary sea piracy.The piracy literature broadly cleaves along dis-ciplinary ranks, with public policy analysts,economists, legal scholars, and security expertsespousing internalist explanations in termsof dysfunctional, provincial responses and asmaller number of anthropologists, historians,and environmental scientists pointing to largelyexternal conditions imposed by bungled decol-onization, globalization, and neoliberalism. Ina strange flip, the analysts who usually favorbroad systematic explanations blame local pe-culiarities for piracy, whereas those who usu-ally champion the local and particular blamelarge impersonal forces. I argue that this ideo-logical divide in the literature comes down toa fundamental disagreement about the legiti-macy of international forms of sovereignty andthe costs/benefits of neoliberal capitalism.

Upon closer examination, the relativityof political legitimacy and the porosity ofsovereignty, as seen from both within andwithout Somalia, hang like clouds over the

status of so-called pirates. Some groups accusedof piracy prefer titles such as Somali CoastGuard, the National Volunteer Coast Guard,the Central Region Coast Guard, Ocean Salva-tion Corps, or the Somali Marines (Cox 2009).In Puntland, some Somali soldiers participatein what looks to the international communityas piratical acts. Since the collapse of the Barreregime, the lack of a central Somali militarycontrolled by a central authority has meantthat those who see themselves as legitimatelydefending Somali territory and resources areoperating without international recognition.Thus, their claims to legitimate statehood, as inthe Republic of Somaliland, may be internallyvalid but internationally unsanctioned. In sucha situation, the line between pirate and coastguard is defined by long-distance juridicalperception that is informed more by thesecurity interests of the UN Security Counciland the appeals of multinational corporationsthan by local political realities.

Few ethnographers have returned toSomalia since the fall of the dictatorship in1991 and its ensuing crises. To my knowledge,none have worked among the coastal villagesknown to be pirate havens. Information on theorganization and self-understanding of Somalipirates comes largely from journalists and ahandful of NGO representatives. We do knowthat the Somali language includes a word forpirate, burcad badeed, which translates as seabandit (Cox 2009, Lehr & Lehmann 2007, Silva2010). We also know that self-identified piratesconcentrate in Puntland, taking advantage ofthe narrow pass known as Bab el Mandeb thatconnects the Gulf of Aden to the Arabian Sea;heavily laden ships pass through this vulnerablearea from the port of Jeddah in Saudi Arabia orthe Suez Canal in Egypt. But piracy is not solelya factor of geography. Other known piratehavens exist in fishing villages that dot the entirelength of the southern coast. Many of the pi-rates interviewed by reporters are non-Muslimminorities who are not tightly integrated intothe Somali so-called warlord system (Cox2009). One observer identifies seven distinctpirate clans in Somalia (Shaun 2009).


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Opportunistic temptation is certainlypresented by the expansion of oil distributionand its related consumer wealth in nearby Arabnations (Cox 2009, Lehr & Lehmann 2007). InNovember 2008, Somali pirates seized the MVSirius Star, a Saudi-owned megacrude tankercarrying two million barrels of Saudi oil, rep-resenting one-quarter of that country’s dailyoutput and a market price of $100 million. Fromthe Somali pirate/coast guard perspective, the$3 million ransom was a more than reasonable“tax” for passing through Somali waters(Gettleman 2008, 2010a). Exactly the sameself-understanding and tactics were used by theBarbary pirates tapping the concentration ofwealth that flowed between the greater Atlanticand the Mediterranean during the early modernage of colonization (Blondy 2002, Wolf 1979).

In interviews with journalists, several Somalipirates have said that their activities began asa counteroffensive against commercial fishingvessels that were taking advantage of Somalia’spolitical disarray to poach territorial waters, tothe detriment of local fisherman. Sugule Ali, aspokesman for a group calling itself the CentralRegion Coast Guard, which hijacked the MVFaina, is quoted as saying: “We don’t considerourselves sea bandits [burcad badeed]. Weconsider sea bandits those who illegally fish inour seas and dump waste in our seas and carryweapons in our seas. We are simply patrollingour seas. Think of us like a coast guard” (Get-tleman 2008). He explained that the MV Fainawas detained and “fined” because it was sailingthrough “our waters carrying all these weaponswithout permission” (Gettleman 2008). Healso references accounts by Somalis and envi-ronmental groups that opportunistic dumpingof toxic and medical waste off of Somalia’s coast(largely by Italian firms) has added to localmiseries in the civil war period (Waldo 2009).

According to Andrew Mwangura, who runsthe Kenyan-based Seafarers’ Assistance Pro-gram, and Mohamed Abshir Waldo, an analystfor the international NGO Ecoterra Interna-tional, the rise in Somali sea piracy is largelydue to fish poaching (or what analysts call IUUfishing—illegal, unreported, and unregulated)

that has escalated in the past 15 years owingto opportunity and demand. Somalia possessesthe longest coast on the African continent andis counted among the five richest fishing areasof the world. Meanwhile, EU fisheries haveimposed a moratoria to allow fish stocks torecover, while Asian commercial fishing hascapitalized at an exponential rate, respondingnot only to increased Asian market demand, butalso to worldwide appetites for tuna, shrimp,and other fish [especially those purveyed in theform of sushi (Lehr & Lehmann 2007, Mwan-gura 2010, Waldo 2009)].3 With the collapse ofthe Barre government and dissolution of the na-tional coast guard, Somalia presents a temptingand vulnerable area. In the early 1990s, severalviolent confrontations between foreign fishingcrews and Somali fisherman were the spur toa cycle of defense, predation, and revenge of anow quite wider and intensified circuit.

The stakes are high. The tuna businessalone in the Indian Ocean is estimated to beworth $6 billion annually. According to theHigh Seas Task Force, an international con-servation group that tracks illegal fishing, in2005 800 IUU fishing vessels were active inSomali territorial waters, representing morethan $450 million (Mwangura 2010), whereasLehr & Lehmann (2007) put the average an-nual figure of European and Asian poachingat $300 million. Trawlers identified either byNGOs or by pirate captures have come primar-ily from the EU and Asia, with repeat offend-ers from Italy, France, Spain, Greece, Russia,Britain, Ukraine, Japan, South Korea, China,Taiwan, and India, as well as Yemen, Egypt,Mozambique, and Kenya. With some justifica-tion, Mwangura (2010) counters by labeling thisforeign activity within what should be Somalia’sprotected 200-mile Economic Exclusive Zone(EEZ) as fishing piracy, a form of biopiracy.Waldo (2009) adds that even though some in-dustrial fishing operations pursue paperwork

3Tuna is the main catch, but industrial fishing also targetslocal mackerel, swordfish, grouper, emperor, snapper, shark,rock lobster, shrimp, dolphins, sea turtles, and sea cucumbers(Waldo 2009).

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(referred to as licenses) from local officials,these companies are mafia-like in their interna-tional reach, intimidation tactics, and secrecy.Furthermore, they seek licenses from warlordsor municipal figureheads with limited or ques-tionable legitimacy. In short, the licenses mightas well be regarded as frauds or counterfeits.4

As should be clear from these allegations andcounter allegations, the legal waters of Somalipiracy are murky, and there are high-placed in-terests profiting from the suspension of Somalistatehood. Failed states are the ultimate freemarket, as international entrepreneurs havediscovered.

One prominent, young economist has madethis correlation an article of new faith. In a pa-per entitled, “Better Off Stateless: Somalia Be-fore and After Government Collapse,” Leeson(2007) argues that “statelessness has substan-tially improved Somali development. I find thaton nearly all indicators Somalia is doing signif-icantly better under anarchy than it was undergovernment. This improvement has been madepossible by renewed vibrancy in key sectors ofthe economy and public goods in the absenceof state predation” (p. 692).5 Leeson continuallyuses the term anarchy (57 times) to describe thestate of Somali political affairs since the collapseof the Barre government. Although he does not

4Waldo (2009) specifically names the UK- and Italy-based African and Middle East Trading Co. (AFMET),PALMERA, and UAE-based SAMICO as having cut dealswith warlords General Mohamed Farrah Aidid, GeneralMohammed Said Hersi Morgan, Osman Ali Atto, and ex-President Ali Mahdi Muhammad. Each of these shady com-panies are middlemen for licenses that they then turn overto better known companies such as Spanish Pesca Nova,which received licenses for 43 seiners in a four-month pe-riod alone at the price of $30,000, and the French-ownedCobracaf group, which had SAMICO obtain a rate of $15,000per season per vessel. A similar arrangement allegedly existsbetween the Omani-based PIDC and the UK’s Hart GroupInternational.5Within Leeson’s own disciplinary paradigm, the article isstrange—11 of his 18 “social welfare” indicators are measuresof improvement in health and sanitation that most plausiblycould be attributed not to the absence of government but toits insertion in the form of UN assistance. Also peculiar foran economic argument, his own data show a significant dropin per capita GDP, and he declines to provide data on theother major economic indicator—average per capita income.

define the term, he does idolize it as a perfectstate for economic affairs. He paints a surpris-ingly rosy picture of Somali society, suggest-ing that health, life expectancy, and freedomof speech have all improved significantly in the2000s. Anarchy for him, though, appears not tomean an absence of rule: “Because of the state’scollapse, private providers of law and order havebeen freed to step in” (Leeson 2007, p. 705), afrighteningly flat-footed assertion of the waysin which neoliberalism has privatized power(Comaroff & Comaroff 2009).

Other Hotspots

According to policy analyst J.N. Mak (2007),as in Somalia, fishing and ecology are majorfactors contributing to piracy in the Straitof Malacca, which divides the Malaysianpeninsula from Indonesia’s island of Sumatraand is the hottest spot of the South ChinaSea. Mak claims that pirates have kept theMalaysian fish and shrimp populations fromthe collapses seen elsewhere, although thereis still a black trade in sea cucumbers, tuna,and shark fin for nearby Asian medicinaland culinary markets. Ethnohistorian JamesWarren (2003, p. 15; 2008) corroborates thatillegal industrial fishing operations (includingfish bombing and cyanide poisoning) havetriggered piratical responses from Indonesianfishing communities in an area that has a cyclichistory of piracy as a response to predatory eco-nomic practices, particularly involving forcedlabor and/or extraction of exotic luxuries.

In a salient parallel with the Gulf of Aden,a stunning one-quarter of all the world’s tradepasses through the Strait of Malacca—most ofit oil. The Malacca region today is also seen as amajor corridor for human smuggling, particu-larly feeding the Asian sex trade in women andchildren (Warren 2008). The area has seen anupsurge in piracy and human trafficking sincethe 1970s. Malacca pirate attacks on fisher-men and traders have been reported since the1980s. With the Asian financial crisis that be-gan in 1997, pirates turned to larger interna-tional ships and started demanding ransoms for


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ships and their crews and/or for protected pas-sage money. The new wave of piracy in Asiahas a clear and present connection to neoliberalderegulation and the intensification of two ex-tractive sectors in the past two decades—oil andfishing—as well as a connection to the precipi-tous busts neoliberalism risks (the Asian slumpis seen by many economists as a precursor ofthe credit bubble crisis of 2008 and its ensuingglobal recession).

The northern tip of Sumatra is occupied bythe territory of Aceh, home to the most activepirates in the region. Like Somalis, residentsof Aceh (which include ethnic Acehnese, Alas,and Tamiang, among others) historically putup a fierce resistance to European colonialcontrol. Since the 1970s, Aceh has attemptedto proclaim sovereign independence fromIndonesia. Similar to Somalia, Aceh indentifiesas an old hearth of Islam (claiming to be thesite of its introduction to Southeast Asia)and is now characterized as one of the mostconservatively Muslim areas of Indonesia. Theterritory is rich in oil and natural gas, whichis one reason why the Indonesian governmentis loathe to let it secede. After the fall ofSuharto (whose long authoritarian rule from1967 to 1998 echoes aspects of Siad Barre’s),separatists in Aceh reactivated their pursuit ofindependence. Many locals do not recognizethe legitimacy of the Indonesian state in Acehprovince (Mak 2007, Warren 2003).

Malaysia and Indonesia have been engagedin a boundary dispute over rights to thenorthern reaches of the Strait of Malacca thatexacerbates the pirate problem. Malaysia haslegal rights to the seabed, but not the watercolumn, although it has been attempting toassert economic sovereignty over the fish thatpass through. Political and legal ambiguitiesrun throughout the global fishing industry,especially in this region. Local commercial op-erations are quite international, with Chineseinvestors and boat owners, Malay or Indonesiancaptains, and mostly Thai or Burmese low-paidcrew members (Mak 2007). For the right price,some fishermen have flashed official-looking“fishing certificates” in the name of the Aceh

Sumatra National Liberation Front, a sepa-ratist group, bringing up the question of whohas legitimacy and sovereignty in this area.From the international observers’ viewpoint,this connection between fishing and separatismthreatens to cross the line between piracy andterrorism. But from the local participants’ view-point, these actions may not represent piracyat all, but rather the enactment of regionalsovereignty with the political right to levy tollsand issue licenses and the economic right toharvest local resources—something that inmost cases they had been doing for generationsbefore foreign poachers appeared on the scene.

Pirates in the South China Sea (whichgeographically encompasses other currenthotspots such as the Singapore Strait, the SuluSea, and the Sabah Sea), originate from threesectors of the regional population: a smallnumber of hereditary or traditional pirates whooften reside on smaller islands or more isolatedcoastlines; fishermen or local traders who haveturned to piracy because of recent economicextremities; and military or government offi-cials who have turned rogue or who, at the veryleast, exploit their position to extort bribes,extend their jurisdiction, and impose question-able taxes and tolls. In addition, pirates varyconsiderably in their specialization and level oforganization. Some are fisherman who engagein small-scale sea robbery and territorial protec-tion in their local area; some are part-timers di-versifying their activities out of involvement ininternational smuggling and human traffickingover a wider area; and others (particularly thoseinvolved in high-ransom ship jacking) appearto belong to highly centralized and capitalizedorganized crime syndicates, which are directedfrom major urban centers in Hong Kong,Singapore, and Taiwan (Mak 2007, Warren2008).

As legitimate business operations expand inthe globalizing economy, informal and criminalbusinesses are globalizing in tandem and takingadvantage of the same porous state boundaries,loosened regulations, weakened states, and im-proved technologies such as container ship-ping, radar, cell phones, and computer tracking,

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to streamline their operations. Global smug-glers interviewed by anthropologist CarolynNordstrom (2004, 2007) say that crime itselfis undergoing a process of globalization andthat a megamerger is occurring between cul-turally dispersed crime syndicates from Asia toAfrica, to Latin America, and back to Europe.The cultural and economic distance betweenthe Russian mafia, the Bangkok brothel, andthe Las Vegas strip is fast closing. Nordstrom’sobservations are corroborated by eyewitnessesin East Africa and the South China Sea whonote the penetration of globally organized com-merce and multinational crime. The remain-ing major distinction between the two (bothof which may operate with fishy “licenses”) isthe presence or absence of the use of force—although in Blackwater’s case, that distinctioncollapses entirely in the privatization of stateviolence.

HISTORY LESSONS

Anthropologist Christopher Healey (1985)makes the argument that, historically, someisland and coastal communities in the SouthChina Sea were prone to piracy for ecologi-cal, economic, and ideological reasons. In theearly modern and colonial periods, piracy be-came a way of life in coastal Borneo becausethe island neither produced enough food to sus-tain the population nor was well positioned toparticipate directly in international trade routesand peaceful commerce. Small island states de-pended on interior tribes for agricultural pro-duce and tropical forest materials such as cam-phor, gums, aromatic woods, rattans, and ediblebird nests valued in Asian trade. Healey docu-ments the instability of a system in which somestate power brokers try to impose trade monop-olies while others try to penetrate the monopolythrough piracy, echoing the dynamics of theearly modern Atlantic. And in parallel with to-day’s Somalia, a constant fissioning and recon-solidation of economic and political controloccurred among the Borneo coastal polities,as none of them could exert their hegemonyover the interior tribal groups. Warren (2008)

makes a similar argument for the connec-tion between colonial economic exploitationthat caused piracy to spike in the nineteenthcentury and what is occurring today. WhileEuropean colonizing powers criminalized po-litical and commercial activities in SoutheastAsia that indigenous maritime populations sim-ply considered the normal way of doing busi-ness, they also created unsustainable redistribu-tions of resources and labor.

Leeson does not refer to Somali piracyin his 2007 article, which predated the phe-nomenon’s publicized upswing in 2008–2010.However, the coupling of anarchic piratefantasies with radical free marketeerism wasalready anticipated. Somali pirates presagedLeeson’s (2009) concurrent book project, TheInvisible Hook: The Hidden Economics of Pirates,as Somali and other contemporary sea ban-dits appear only in Leeson’s postscript. TheInvisible Hook is a populist Freakonomics take onclassic Caribbean sea piracy circa 1670–1730.Leeson is forthright about not offering new data(the book is curiously void of the economist’sfavored tables or other quantitative evidence);instead, he gaily plunders the archival work ofhistorians such as Rediker (1987, 2004) into areworked interpretative frame that shows pi-rates to be self-interested, rational actors whorespond to incentives. Although he admits that“greater liberty, power sharing, and unity didprevail aboard pirate ships,” his main point isthat “most sailors who became pirates did so fora more familiar reason: money” (Leeson 2009,p. 11). For Leeson, pirates present a case forthe possibility of a “privately created law andorder.” Although he admits that Rediker is per-suasive in arguing that “in part, pirates actedas social revolutionaries in rebellion againstthe authoritative, exploitative, and rigidlyhierarchical organization” of early moderncapitalism—the problem for him was that thishierarchy emerged under a regime of state cap-italism, or mercantilism (Leeson 2009, p. 11).

Rediker (2004, p. 16) describes classicCaribbean pirates as an “alternative social or-der” that attempts but fails to create a kind ofutopian, nonstate society. For him, pirates are


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communitarian anarchists and proto-socialists,not the Adam Smith individual automatonsof Leeson’s fantasy. To his credit, however,Rediker has devoted much of his distinguishedcareer as a serious historian in the archives, un-covering more primary evidence of mariner lifein the early Atlantic than perhaps anyone elsein the field. Although he may take the argu-ment to idealist extremes, pirate literature andthe testimony of some self-proclaimed piratesdo reveal a self-conscious political and ideolog-ical revolt against the coercive tactics of bothgovernment (especially British naval impress-ment and enclosure) and capitalism (in its rapiddisplacement of populations and monopolisticseizure over the means of subsistence—manypirates in the early eighteenth century targetedthe British East India Company as their arch en-emy). The rapid globalizing spread and coercedpopulation movements of merchant capitalismbear many similarities to today’s forces of ne-oliberal globalization. Leeson (2009) imaginesa contrast between a historic case of bungling,government-run companies and a contempo-rary case of privately run companies thrivingon unfettered competition. However, upon ex-amination of the structural underpinnings oftransnational corporations and their legal pene-tration into national and international practice,one could argue that what is actually happen-ing today is that monopolistic corporations arerunning states [an overgrowth of Leeson’s pri-vate ideal (Comaroff & Comaroff 2009, Foster& McChesney 2009)]. And it would have beenequally difficult to say who was on top in theseventeenth and early eighteenth centuries—the French West Indies Company and BritishEast India Company or their heavily investedmonarchies. Piracy reveals the supposed con-trast between mercantilism and neoliberalismto be less meaningful on the ground than it hasbeen in rhetoric.

Rediker (2004) makes many political pointsin his detailed account of classic Caribbeanpiracy that can be read as critiques of con-temporary conditions. His portrayal of pi-rates as anarchic revolutionaries has been takenup by latter-day anarchists of otherwise quite

opposed persuasions—from radical neoliberalPeter Leeson to anticorporate digerati such asPeter Sunde. Rediker depicts the escalation ofpiracy and antipiracy in the early eighteenthcentury as a case of bilateral terrorism: “Intruth, the keepers of the state in this era werethemselves terrorists of a sort, decades beforethe word terrorist would acquire its modernmeaning” (Rediker 2004, p. 5). He also arguesthat pirates in the Golden Age were quite con-sciously both antistate and anticapitalist andthought of themselves “as a people without a na-tion” who on shipboard created a temporary ho-mosocial society whose “core values were col-lectivism, antiauthoritarianism, and egalitarian-ism” (pp. 8, 26). They strategized not only toplunder for their own short-term pleasure andexpression of outrage and revenge but also tointentionally disrupt trade in areas of concen-trated flow. Although more attuned to the so-cial and political currents of piracy than Leeson,Rediker does not shy away from an economicexplanation. He says that beyond the classicCaribbean example, “The most essential pre-condition through the ages has been the exis-tence of trade, in which valuable commoditiesare transported by sea through remote, poorlydefended regions populated by poor people”(p. 28). If true, then oil and fish are today’s silverand slaves.

An important case study regarding the fineline between piracy and privateering and thefragile legitimacy of state and merchant inter-ests they bring to the fore is that of CaptainKidd (ca. 1645–1701). Historians have inter-preted his case as either a birth or a death inthe history of piracy (Ritchie 1986). In 1695,Kidd was recruited by the governor of NewYork and several wealthy British lords to go onan antipirate and anti-French privateering ex-pedition during the Nine Years’ War. Throughmany twists of fate and later legal turns of cine-matic quality, Kidd was convicted of piracy andhis body left to rot in a gibbet over the RiverThames. His execution coincides with the take-off of the most active and anarchic phase of clas-sic piracy in the first quarter of the eighteenthcentury. Kidd was popularly regarded as a

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martyr who came to his death through an effortby merchants to defend their own questionablelegitimacy. To sailors and the “hewers of woodand drawers of water” (Rediker 2004), his ex-ecution in 1701 signaled that no merchant ormaritime authority could ever be trusted; eventhose of your own nation could turn against you.One way of reading the gruesome outcome isthat the always nebulous legality of privateer-ing had become too clouded; its ambiguity nolonger worked in favor of the pirate and priva-teer but would be more forcefully controlled inthe interest of the state and of capitalists. An-other reading is that the failure of Kidd’s puni-tive expedition, when seen as the mercenariesturning pirate, meant that the breach of con-tract was on the part of the privateers and thatthe time had come when pirates and privateershad outlived their usefulness navigating the fis-sures of the imperial and trading rivalries of theearly modern period.

From that point onward, pirates ceased tobe a national asset and became an internationalthreat. Britain, France, and even MughalIndia united over what had become “a commonenemy of mankind,” to paraphrase Cicero’sfamous definition—the nationless pirate. Thewar against piracy began with Kidd’s death. Theend of piracy began with an intense escalationof both state and individual terrorism before fi-nally the last of the die-hards had been stampedout around 1725. Kidd was one of the last ofthe well-known pirates to go to his death pro-claiming his innocence. After him, most piratesinstead proclaimed their scorn for the law andthe illegitimacy of the system that prosecutedthem.

Political scientist Janice Thomson (1994)argues that although classic piracy posed athreat to states and property, a reliance onprivateers helped to legitimize nonstate vio-lence. But by weakening this other kind ofmonopoly—the Weberian monopoly over le-gitimate violence—the early modern states un-dermined their own authority, especially overthe colonies where their own police and militarypresence was light. Thus, although the trademonopolies of mercantilist capitalism undoubt-

edly contributed to the Boston Tea Party andthe American Revolution, another conditionthat contributed to the rejection of metropoli-tan authority was privateering and its slipperyslope into piracy. The authority of the statewas hard to respect when it licensed out itsmonopoly of violence to uncontrollable privateagents.

PIRATES, LAW, ANDSOVEREIGNTY: FROM THEHIGH SEAS TO THE INTERNET

In the early modern period, there was littlesense that national sovereignty extended overwater. Thus, the “high seas” automaticallyreferenced a lawless space, not simply as ametaphorical gesture but in a literal legal sense.The idea of national and international watersonly developed much later, in the nineteenthcentury, and continues to be one of the vaguestand/or most contentious areas of internationallaw in which it is hard to forge a consensus onlegal limits and legitimate authority.

As in the post-Kidd era, today the escalationin sea piracy is closely followed by an interna-tional collaboration and crackdown, althoughproblems in enforcement threaten to uncloaklegal ambiguities of competing jurisdictionsand wide gaps in the late modern bounds ofsovereignty. This worrisome feature of whatmight otherwise be considered a simple crimewave is attested by the fact that the most pro-lific area of writing on contemporary sea piracyis in a branch of international relations calledsecurity studies. This is a lamentable state ofaffairs for those interested in relations betweenlaw and society, as the vast majority of the worksin this field are poorly informed on both (see,for example, Burnett 2002, Luft & Korin 2004,Naim 2005). Most analysts of this ilk begin withthe presumption that pirates are arch crimi-nals, foreclosing historical and social analysiswith a flat-footed vilification of those commit-ting piratical acts—a sort of reverse of Arendt’s(1963) analysis of the Nazi’s “banality of evil,”which made the Holocaust possible. In the caseof pirates, it is their extraordinary, inexplicable


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villainy that justifies a sort of international“state of exception” (Agamben 2005) in an-tipiracy tactics. One could argue that a main aimof security studies is to whip up a sense of emer-gency or crisis so that extralegal sovereignty canbe extended, as it has been in the post-9/11treatment of terrorist subjects at Guantanamoand elsewhere. The problem is, because piratesare international criminals, the logical exten-sion of the state of exception in this case wouldbe toward an international rule of law, whichfrom a modern state’s perspective means the ca-pitulation of national sovereignty. Even if somesecurity analysts are reticent to invoke universaljurisdiction, their primary rhetorical aim seemsto be to group pirates with terrorists and otherenemies of mankind to justify the extrajuridicaluse of force in nonsovereign spaces—in casessuch as Blackwater, the argument is made forthe legitimate use of private force. One won-ders what Weber would say about this neolib-eral inversion of state and commercial power.

In the first century BCE, the Roman juristCicero is credited with coining the term hostishumani generis, or enemy of mankind, to de-scribe pirates. It is a legal term that has stuck,and it became embedded in European admi-ralty law during the Renaissance (Benton 2005):“[P]irates are the archetype of a nonstate warmaker” (Passman 2008, p. 18). Because sea pi-rates commit illegal acts on the high seas, orwhat are now called international waters, therehas always been a problem in applying nationallaws outside territorial jurisdiction. When pi-rates are defined as enemies of mankind ratherthan criminals within a sovereign nation, thena state of perpetual war against such enemiesby any and all cooperating states is justified—atleast if they can agree that a particular raideris acting as a pirate and not a privateer, navalforce, coastal guard, or tax collector.

In contemporary terms, the jurisdictionproblem is summarized by legal scholarMichael Passman (2008): “Piracy is uniquelysituated in international law: pirates are cap-tured on the high seas outside the territory ofevery state but are punished under the munici-pal laws of any state instead of an international

court.” Article 101 of the UN Convention onthe Law of the Sea (UNCLOS), an agreementbrokered to adjudicate competing sovereigntyclaims in ocean waters largely precipitated bypost–World War II oil exploration, includes amultipart definition of piracy that retains thespirit of hostis humani generis:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention,or any act of depredation, committed forprivate ends by the crew or the passengersof a private ship or a private aircraft, anddirected:

(i) on the high seas, against anothership or aircraft, or against personsor property on board such ship oraircraft;

(ii) against a ship, aircraft, persons orproperty in a place outside the juris-diction of any State;

(b) any act of voluntary participation in theoperation of a ship or of an aircraft withknowledge of facts making it a pirate shipor aircraft;

(c) any act of inciting or of intentionally facil-itating an act described in subparagraph(a) or (b). (p. xx)

Per definitions provided by UNCLOSas well as the Geneva Conventions, piratesare “nonstate actors,” an antiseptic synonymfor Rediker’s self-identified nationless rebels.Furthermore, per UNCLOS (and perhaps tothe delight of Leeson), pirates by definitionact for private ends and act outside sovereignterritories. According to the same set of laws,waterborn attacks with political motives arenot piracy—they are instead acts of terrorism.Clearly, Rediker and some anarchists wouldprotest that public and private piracy cannot beso easily separated. Despite UNCLOS’s clearattempt to separate pirates from terrorists orwar combatants, ironically the hostis humanigeneris principle is also invoked by legal scholarsstruggling to come up with grounds for what istermed universal jurisdiction against terrorists,

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torturers, and war criminals (Roach 2010,Thedwall 2010, Burgess 2005, Kontorovich &Art 2010, Silva 2010, Taussig-Rubbo 2011).However, as Passman (2008) notes, this isa very unsettled legal question, even amongAmerican jurors, which begs the question ofan international court—the same jurisdictionaltension that runs through human rights cases[thus some commentators go so far as tosay that piracy is not a crime (see Passman2008, p. 11 n. 71; Kontorovich & Art 2010for reviews of the legal debate)]. It is thissame hesitancy to yield national sovereignty touniversal jurisdiction that has contributed toU.S. refusal to sign or ratify UNCLOS.

Thus, the U.S. military action againstSomali pirates holding the American-ownedMV Maersk Alabama in April 2009, whichresulted in three Somali pirates being killed bynavy snipers, did not occur under any obviousprovision of international law. Rather, the(contradictory) U.S. position is that UNCLOSsimply codifies customary international law,which justified the action 240 nautical miles offof Somalia’s coast. Per the territorial compro-mises worked out by UNCLOS, the high seasare precisely defined as water not within thesovereign control of a state, meaning that theyare “not included in the exclusive economiczone [200 nautical miles], in the territorial sea[12 nautical miles] or in the internal watersof a State, or in the archipelagic waters of anarchipelagic State” (United Nations 1994).

The rapid and aggressive U.S. action againstSomali pirates has been followed by greaterinternational cooperation in preventing andcombating piracy off East Africa, establishinga narrow transit corridor guarded by shipsfrom NATO, the United States, Japan, China,Russia, India, and others (IMB 2010, Gettle-man 2010b, Int. Chamb. Commerce 2011,Assoc. Press 2010a). By the end of 2010, thisstrategy had succeeded in reducing the numberof attacks within and near the EEZ of Somalia,but pirates have changed tactics and are nowventuring much farther out into the IndianOcean, where long stretches of unmannedwater make policing difficult. A recent decline

in Southeast Asian piracy has been attributedto a concerted crackdown by the Malaysiangovernment, backed with donations fromGreek shippers (Passman 2008, Mak 2007).Indonesia, Singapore, and Bangladesh alsostepped up enforcement in the 2000s. In acase of bilateral terrorism, China executed 13pirates who had clubbed 23 blindfolded sailorsto death following a hijacking in 1998 (Passman2008, p. 8; BBC News 2000). More recently,in May 2010, a Yemeni court sentenced sixSomali pirates to death for hijacking a Yemenioil tanker that left one crew member dead andanother missing (Reuters 2010).

But as Kontorovich & Art (2010) note, pros-ecutions for international piracy are extremelyrare, and convictions even rarer. In their reviewof 754 potential cases worldwide between 1998and 2007, less than 1% resulted in prosecution(0.53% by their calculation). Even in the case ofthe two years of heightened international atten-tion to Somali activity from 2008 to 2009, only2.5% of cases were prosecuted. These numbersare mostly accounted for by some troubledcases that were pushed onto Kenya by U.S. andEU authorities with the trade-off of handsomefinancial assistance to upgrade Kenyan courts(Taussig-Rubbo 2011), an outsourcing ofjustice not unrelated to the tactics used tooutsource torture and imprisonment of allegedterrorists. Even in the noncompliant UnitedStates, the piracy charges per the U.S. domesticantipiracy statute (which dates to the Barbaryperiod of 1819) against the lone survivor of theMV Maersk Alabama counterattack, AbduwaliAbdukhadir Muse, were dropped, althoughconspiracy and kidnapping charges, as of De-cember 2011, remain (Rivera 2010). Accordingto Kontorovich & Art (2010), a major problemin these cases is lack of evidence, but theproblems of sovereignty and jurisdiction loommuch larger. As Taussig-Rubbo (2011, p. 51)writes, “[T]he pirate acts in a zone beyondsovereignty—the high seas—and acts not ona sovereign’s behalf.” As a result of the Somalisurge, there has been some discussion at theUnited Nations of extending the InternationalCriminal Court’s purview to piracy cases, given


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most nations’ hesitancy to prosecute. But sofar, this has not occurred. Instead, enforcementhas been following a catch-and-release patternthat aims to deter pirates but not to punishthem. The British Royal Navy recently issuedorders to release all captured pirates out of fearthat the United Kingdom would run afoul ofhuman rights concerns given the sensitive legalstatus of nonstate actors under the GenevaConventions. Thus, according to internationallaw, for so-called nonwar combatants to beconsidered pirates, they must first be outlaws ofa recognized nation-state and be perpetratingtheir acts on the high seas, outside of sovereignwaters. Neither of these legal technicalitiesapplies to the decentralized, so-called failedstate of Somalia and its maritime people.

It can be difficult to ascertain the nation-ality not only of a pirate (from a failed stateor not), but also of the attacked commercialships, which are of an equally nebulous status:Ships are owned by a company in one coun-try, registered under another country’s flag ofconvenience, operate with a multinational crewor one picked up in another port, and quitelikely carry the commissioned cargo belong-ing to another national (or international) cor-poration. The nationality of the perpetrators isunclear, and the nationality of the victims maybe even hazier, unless the victims are general-ized as the worldwide economic order. Taussig-Rubbo (2011) makes two critical points: thatpiracy reveals the ambiguities and vulnerabili-ties of national sovereignty, and that this is partof a struggle to redefine the relationship be-tween legitimacy and the private and public useof force. This crisis is rooted in postcolonialand Cold War political histories that have es-sentially redefined vast territories as piratical inthe eyes of the West: “[E]choing older Euro-pean notions of precolonial polities, there is alsoa process of what we might call the ‘oceanifica-tion’ of land, whereby many postcolonial statesare treated as sovereignty-less, ‘ungoverned ter-ritories,’ in language adopted by the U.S. De-partment of Defense” (p. 53).

Or like the Internet, a vast, ungoverned ter-ritory. I began this review by laying out the

not-so-uncanny connections between Somalisea piracy and the recent WikiLeaks expose,a bete noire of intellectual piracy that seemsto be growing to colossal proportions, threat-ening/promising to remake the world order.Demonstrations and a political coup in Tunisiaagainst the reputedly corrupt and repressiveregime of long-term president Ben Ali havebeen credited as the first “WikiLeaks Revolu-tion” (Daily Mail 2011), now followed by theeven more dramatic revolution in Egypt andcivil war in Libya, as well as protests in Algeria,Syria, Bahrain, Yemen, and elsewhere. Theseare wars of free information versus secret in-telligence. Julian Assange of WikiLeaks is cur-rently being held by UK authorities trying toextradite him to Sweden to face sexual molesta-tion charges that Assange counters amount tolittle more than a smear campaign and a round-about attempt to facilitate extradition to theUnited States for his WikiLeaks activities. Thedifficulties of his prosecutors are compoundedby the same problems encountered with seapiracy: Assange as a person and WikiLeaks as anentity are of uncertain nationality. Although anative of Australia, Assange does not maintain apermanent address in any country, although hehas moved between Tanzania, Kenya, Sweden,the United Kingdom, and Iceland. An interna-tional nonprofit, WikiLeaks operates globallythrough a decentralized network of employeesand volunteers. Although financial support forits political activities has been hampered by U.S.pressure on credit agencies such as PayPal andVisa to deny their services to WikiLeaks, PeterSunde of The Pirate Bay has already stepped into assist with his new online microdonation sys-tem called Flattr (Daily Mail 2010, 2011; Jeter2010; Michaels 2010; Assoc. Press 2010b). U.S.reaction underscores the deep kinship betweensea piracy and intellectual piracy in today’sworld of new technologies, liquid sovereign-ties, and states of exception. Both DemocraticVice President Joseph Biden and RepublicanSenator Mitch McConnell have called Assangea terrorist (Grier 2010). The State Depart-ment considers WikiLeaks a foreign combat-ant against which cyberattacks may be justified,

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but “[e]xperts say the government is strugglingwith developing rules that will govern such war-fare, particularly when fighting unconventionalenemies. Launching a cyberattack could raisesovereignty issues if, for example, servers werelocated in a friendly country. ‘Every time onequestion is answered, more questions pop up,’says Army Lt. Col. Robert Fanelli” (Michaels2010).

As a decentralized, postnational, and anti-state protest movement, WikiLeaks may comecloser to Rediker’s utopian antecedents thanany other contemporary pirates. However,collecting confidential government documentsand disclosing them online and throughmainstream media is not the type of activitythat usually comes to mind when one thinks ofintellectual piracy, an area of constant anxietyand organized growth in the twentieth centurythat has seen an exponential increase in thepast 20 years. The self-proclaimed principlesof WikiLeaks are simply an extension of a typeof free culture ethos that has been promoted bysome advocates since the invention of the print-ing press, as documented in a recent magisterialbook by Johns (2010) that covers intellectualpiracy from the Renaissance to Microsoft.

As any red-blooded media user knows, whatis meant by intellectual piracy is some form ofunauthorized appropriation of legally protectedideas or of the media used to convey ideas: copy-right or patent infringement, counterfeiting,plagiarism, brandjacking, bootlegging, or thecontraband distribution and/or consumption ofbooks, recordings, images, broadcasts, artwork,inventions, designs, pharmaceuticals, recipes,and now biological material. Johns (2010, p. 6)makes the important point that “[p]iracy is notpeculiar to the digital revolution.” Rather, it hasa long history dating back to at least the earlyseventeenth century involving another kind ofbattle of the books in which players made bothprofits and political careers off of discontinu-ities in different national publishing culturesand their attendant sovereignties (e.g., betweenIreland and England, Switzerland and France).This is a history not only of practices and le-gal evolution but also of ideas, in which some

advocated for the regulation and ownershipof ideas while others, such as Enlightenmentphilosophers and profiteering copycats, advo-cated for a literal free market of ideas. Withperiodic setbacks, the regulators have gradu-ally been winning the battle to define and en-force piracy through the invention and increas-ing articulation of copyright and patent law thatconnects the history of colonial land patents tothe history of pharmaceuticals, scientific instru-ments, and even the kaleidoscope.

But how did the term long used for sea ban-ditry get applied to violations of ill-defined in-tellectual property? At first consideration, thereis little more than pejorative force connectinga phenomenon with a criminal profile closerto counterfeiting than violent robbery. Therhetorical expansion of the term to cover in-tellectual banditry corresponded to the sametime period, in the late seventeenth century,when Caribbean and South Seas piracy was infull swing and was fueling the public imagina-tion through images both romantic and hor-rific in publications such as Exquemelin’s Buc-caneer’s of America and Captain Charles John-son’s General History of the Pyrates (Exquemelin& Ringrose 1967, Johnson & Cordingly 1998).Representations and news reports of pirateswere in the cultural ether and circulating inthe coffeehouses in postrevolutionary London.To call someone a pirate was a general invec-tive that probably got sloppily applied to otherminor miscreants in popular terrestrial culture,but the usage did not stick quite as well as itcould when deployed by those who controlledthe means of verbal distribution: printers andpublishers. Although Johns declines to makemuch of a comparison between sea piracy andintellectual piracy, three major arguments in hisbook suggest strong parallels that explain whyfree culture advocates from the eighteenth cen-tury to the present have periodically adoptedpirate monikers and symbols—from the self-proclaimed literary privateer Mathew Carey (anIrish immigrant printer active in the AmericanRevolution) to jazz pirates of the early twen-tieth century ( Johns 2010, pp. 185–88, 436–41), and from Radio Caroline of the 1960s


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(a radio station that today continues to broad-cast from a ship off the coast of southernEngland, thus circumventing BBC and recordcompany controls) to The Pirate Bay BitTor-rent file-sharing Web site. These argumentsare (a) that intellectual piracy debates oftenpit monopolistic practices against free marketideals, underscoring one of the major contra-dictions between the accumulating structureof capitalism and its ideology; (b) that accu-sations of intellectual piracy were often madeacross national borders, with the accused refus-ing the label and counterclaiming incursions onsovereignty; and (c) that legal solutions, such ascopyright and patent law, have always laggedbehind pirate practice. Elsewhere (Dawdy &Bonni 2012) I develop more fully the anti-monopoly politics of piracy (both historic andmodern, sea banditry, and intellectual piracy),but suffice it to say that some Somali pirates seetheir acts as a protest against the monopoliza-tion of their fishing waters by industrial cap-ital and that software pirates who circumventMicrosoft’s proprietary designs likewise seethemselves as resisting an unfair monopoly.Parallels in contemporary sea piracy to Johns’sother two points—on the clash of nationalsovereignties and the reactionary legal lag—should be clear from the foregoing discussionof problems in universal jurisdiction.

Johns’s already hefty book (over 600 pages)ends with a quick summation of recent contro-versies over the Google Books scanning projectand Microsoft’s antipiracy strategies, stoppingjust short of The Pirate Bay and WikiLeaksscandals, which were emerging phenomena atthe time of his manuscript’s completion. ButJohns concludes that we are entering a newera that will require a radical redefinition—if not dissolution—of the idea of intellectualproperty. The Pirate Bay and WikiLeaks arethe advance guard of this legal and ideologicalmovement. Adherents consciously deploy theantimonopolist ethos of the Caribbean piratesas symbolized through The Pirate Bay’s shiplogo. They trace the free culture movement toroots in Diderot’s Enlightenment, and more re-cently among the phone phreakers of the 1960s,

the hackers of the 1980s, and the free culturemovement of the 1990s ( Johns 2010, chapters16, 17). This is a quite organized political con-sciousness, as expressed in the establishment ofthe Pirate Party International (established in2010), which has won seats in the Swedish par-liament and the EU and had a prominent mem-ber nominated to a post in the new Tunisiangovernment (Wikipedia 2011b).

The academic literature and blogosphereon intellectual property and free culture aremany times thicker than those on sea piracy,with founding figures such as Lawrence Lessigand Hakim Bey leading the most radicalwing (Bey 1991, Lessig 2004, Ludlow 2001).Bey deliberately invokes classic early modernpiracy as an inspiration through the heterotopiaof Libertalia, the fabled seventeenth-centuryisland off the coast of Madagascar establishedby Ranter pirates, where neither private prop-erty nor the state constrained the pleasures oflife. Bey (1991) is an anarchist who, like Leeson,dreams of a pirate utopia today, but one with adistinctly different relationship to money andthings and a deeply different understanding ofhuman nature.

Although space constraints and the limita-tions of my own expertise (I am more comfort-able with oceans and things than streams andbits) prevent me from offering a balanced re-view of the literature on intellectual property,this is an area of fast-growing interest acrossseveral fields, from history to economics, soci-ology, anthropology, and law itself. The num-ber of law schools and law firms that now of-fer specialization in intellectual property lawhas grown rapidly over the past 10–15 years,with no signs of slowing down. One reasonis the expansion of patentable property, fromDNA sequences to pharmaceuticals, plants, andmedical procedures, as well as digital media.Such intangible property challenges the basisof sovereign ownership in ways that even theplagiarism cases of the early modern era couldnot have anticipated. Although Johns (2010)is right that intellectual piracy did not beginwith the digital age, the high seas of file shar-ing are now not simply unchartable; they are

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mathematically infinite in capacity, and there isnothing physical to be impounded, destroyed,or restituted. Because contraband is now intan-gible, the stakes of knowledge/power are nowmore starkly revealed—the politics of control-ling the free flow of ideas runs up against thepolitics of the free flow of goods. The logic ofwhy one should be secretly policed while theother should be allowed to flow unimpeded isbeginning to sound like ideological dissonanceamong consumer-voters, which is why JulianAssange’s popularity has transcended the do-main of Internet activists and made him thereaders’ choice for Time’s Person of the Yearin 2010 (the editors instead chose Facebook’smore corporate-friendly Mark Zuckerberg).

Another factor pushing the growth of intel-lectual property law is a surge in antipiracy leg-islation and prosecution, both within and acrossnational boundaries. The most extreme (anduncannily predictable) expression of the pirate-hunting privateer mentality, which is emergingin support of neoliberal media mercantilism, isa report by the Rand Corporation, the title ofwhich is sufficient to convey the policing hyste-ria currently escalating in gibbet fashion: “FilmPiracy, Organized Crime, and Terrorism”(Treverton et al. 2009). The report summarizesinternal production of the security industryand is long on rhetoric and short on first-orderdata.

In some ways, not much has changedsince the confused crazy quilt of intellectualsovereignties that Johns (2010) depicts for theeighteenth and nineteenth centuries. Today,intellectual property law varies considerablyfrom country to country, and little interna-tional consensus has yet emerged on the princi-ples and limits to property control. Sovereigntyfights over intellectual property are becom-ing increasingly common on the world stage.As early as 1967, the United Nations formedthe World Intellectual Property Organization(WIPO) to monitor and mediate such disputes.WIPO’s activities and responsibilities have ex-panded rapidly in recent years as more coun-tries come into conflict over counterfeit CDsand DVDs, as well as counterfeit software and

generic drugs. Most contributors to a newstudy published by the Social Science ResearchCouncil find no fault with the ever-refininglegal efforts to define and police intellectualproperty; instead, they locate the problem inthe market, with international media suppliersbeing insufficiently competitive and responsiveto local conditions—or not neoliberal enough(Karaganis 2011).

Several anthropologists have contributedstudies on media piracy across the globe, notingthat sovereignty is both relative and unequalacross global ecumenes. Larkin (2004, 2008)notes that in Nigeria, video piracy is a result oflocal infrastructure and global media culture.As part of a significant black market thatsuffuses Nigeria (estimated at 70% of GDP), itproduces revenue only for individuals, not forcorporations or the state. As a result, he saysthat piracy is part of “a larger movement inwhich the shadow economy has reconfiguredthe state itself” (Larkin 2004, p. 297). A similarinformal economy operates in India (Sundaram2009), creating what Sundaram calls a “piratemodernity” that (unlike classic Caribbeanpiracy or the WikiLeaks/Pirate Bay frontline)is neither organized nor ideological. Thesemodels of media piracy, as a corrosive informaleconomy, are distinct for resisting both theanticapitalist fantasy of ideological free culturepirates and the free market, antistate advocacyof neoliberalism. But as Dent (2011) and otherspoint out, the moral status of piracy hangs ona delicate hook in today’s globalized economyof cosmopolitan demand and unequal supply.The pirate label is “indiscriminately andpejoratively applied by those seeking to regaincontrol of a given circulatory process, most fre-quently large companies, and the public sectorand nongovernmental apparatus that supportsthem. The label is frequently grounded inthe belief that pirates parasitically appropriatevalue they did not create” (Dent 2011, p. 3).In defiant response to what is seen as unfair re-strictions, those on the ground who knowinglyproduce, distribute, or purchase counterfeitgoods such as knock-off designer jeans, purses,or electronics “often proudly appropriate the


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skull and crossbones” (p. 3). Consumer piracythus represents one of the sharpest ironies ofneoliberal capitalism: On the one hand, unfet-tered access to global markets and labor createsnew consumer frontiers for multinationalcorporations, but on the other hand, it just asrapidly contributes to conditions that make itpossible for local producers of imitations tosatisfy the new demands of globalized desire.

CONCLUSION

Recently, a graduate student asked me witha nervous twinkle in his eye, “What wouldbe your reaction—hypothetically—if you foundout that your entire book had been pirated?”When I demanded clarification, it turned out—not so hypothetically—that he had found thefull color text of Building the Devil’s Em-pire (Dawdy 2008), which ironically deals withLouisiana’s piratical founding, on a pirate ser-vice called Library.nu, an academic’s versionof The Pirate Bay. I admitted to being a bitdisheartened because the author’s royalties arepromised to a nonprofit in New Orleans. Itbothered me less (though intrigued me) that thecopy appeared to be not just a quick PDF scanbut a high-quality print-ready file that musthave come from a leak in the publishing stream.I also had to admit that my vanity was indulgedby global readership. The country domain forLibrary.nu locates it in the South Pacific islandof Niue, which is a predominantly Polynesiannation of 1,400 people that Captain James Cookdubbed Savage Island after being sent packingby the locals in 1774. Currently, Niue lacksfull sovereignty from New Zealand, although amajority of residents voted for self-governancein 1974. According to its Wikipedia entry, “In2003, Niue became the world’s first ‘WiFi na-tion,’ in which free wireless Internet access isprovided throughout the country” (Wikipedia2011a), thus providing a new kind of piratehaven along its rocky coast.

Whether the hijacked material is Saudicrude or an intercepted academic monograph,the criminalization of acts called piracy de-pends on the actor’s point of view and, of

course, on the invocation of a particular formof sovereignty and its legal apparatus. WhetherNiue would respect U.S. copyright law is aquestionable question.

Sovereignty has become a major theme inthe social sciences over the past two decadesas observers assess the still-unfolding effects ofdecolonization, new wars, redrawn maps, therise of indigenous nation-states, and post–ColdWar power shifts, as well as the migrations andconsumer spread of globalization. In a reviewof the anthropology of sovereignty, Hansen& Stepputat (2006) assert that classic politicaldefinitions of sovereignty have become inad-equate against the challenges to state powerand the proliferation of “informal sovereign-ties,” be they headed by warlords or corpora-tions, in the recent era. They direct attentionto the critical alternative offered by Agamben(2005) through his framing of homo sacer, or barelife—a focus not on the legalistic, classificatoryschema of state sovereignty (by which somestates can be judged as successful or failed) buton the grounded practices (what actually hap-pens rather than what can be legally justified).This is what they call “de facto sovereignty, i.e.,the ability to kill, punish, and discipline with im-punity” and without legal justification (Hansen& Stepputat 2006, p. 296). In a less lethal realm,I would add that de facto sovereignty also ap-plies to the ability to appropriate, copy, and/ordistribute a vast array of ideas and goods thatneoliberal mercantilism is desperately (and for-mally) trying to protect as intellectual prop-erty. However, the simple duality of de factosovereignty versus formal legal sovereignty isinsufficient in capturing today’s heterogeneouszones of competing, overlapping, and poroussovereignties that split along additional axesof private and public, local and global, verti-cal and horizontal. As Comaroff & Comaroff(2009) observe, this confusing state of affairs ex-cites legal fetishes and extralegal policing. Theinability to effectively prosecute piracy under-scores how law fetishists may be losing the bat-tle against postnational forms of sovereignty.

According to Ong (2002), crony capitalismand neocorporatism contribute to graduated

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sovereignties—a differential geography wherethe state controls some areas (especially brownzones of indigenous populations) more firmlythan before in order to marshal labor and doleout limited favors while it gives up control overother domains (from education to military func-tions) to the market. Although she does not ad-dress piracy, Ong does link shifts in sovereigntyto greater concentrations of capital in the nameof the free market, i.e., the realignment of le-gal and de facto sovereignties under neoliberalmercantilism.

One of the utilities of a cross-temporalcomparison of piracy is that it suggests thatsovereignty is almost always multiscalar anduneven. There may be nothing exceptionalabout a pirate age after all. Even at the heightof the nation-state, researchers can minimallyparse domestic, territorial, and international(or Westphalian) sovereignties (Chalfin 2010).Benton (2010, p. 4) notes that “historianshave recently begun to retell the history ofsovereignty in European nation-states as a con-tingent and stubbornly incomplete process.”Her own account illustrates the in-tandem his-tory of colonial and legal expansions, argu-ing persuasively that sovereignty was always“lumpy,” “worm-holed,” partial, and quali-tatively layered with never-quite-overlappingzones of economic, political, and territorialsovereignty. She uses the example of early mod-ern privateers to show how ships could be “vec-tors of law thrusting into ocean space” (Benton2010, p. 112), whereas pirates were projectilesthat riddled fragile dominions. In showing howgeography and law have rarely mapped neatly toone another, she makes a strong case against themore melodramatic pronouncements about to-day’s sovereignty-in-crisis. Most saliently, shetakes Agamben (2005) to task for being histor-ically naive in equating colonialism with a stateof exception in which the rule of law is routinelysuspended and de facto sovereignty is exertedthrough exceptional violence. Examples fromthe nineteenth-century British Empire demon-strate a remarkably uptight rule of law appliedin colonial fringes and enclaves (Benton 2010,pp. 283–88). Conversely, martial law and excep-

tional violence have been consistently deployedwithin Europe’s centers throughout the mod-ern era. In a similar vein, Sassen (2006) histori-cizes the always-shifting domains of sovereigntybut emphasizes the ways in which our rela-tively new (aka late-nineteenth-century) idealsof national sovereignty are in some ways beingstrengthened, not weakened, by globalizationin an ongoing dialectic of events, although thelegal reins are increasingly being handed to in-dividual actors and supranational organizations.Thus, another way to think about our currentcrisis of sovereignty is as a return to a pirate agethat may be more the rule than the exception inthe long duree of human political history. Thisthought takes us back to antiquity.

Heller-Roazen (2009) offers an intellectualhistory of Cicero’s famous definition of piratesas “the common enemy of all,” moving back-ward to Homer’s observations of the role ofpirates in the even more ancient world, for-ward to Renaissance and Enlightenment rein-terpretations of Roman law (via Grotius andGentili among others), and down to latter-day air piracy and Agamben’s (2005) states ofexception. Paralleling points I have made inthis review, Heller-Roazen (2009, p. 10) arguesthat “piracy involves a region in which excep-tional legal rules apply” and also that piracy“brings about the confusion and, in the most ex-treme cases, the collapse of the distinction be-tween criminal and political categories.” Theexceptional legal status of pirates as nonstatecombatants and enemies of humankind [vari-ants: “criminals against humanity,” “enemiesof the human race,” or “unlawful combatants”(p. 29)] developed and hardened over the cen-turies. More importantly, he argues that theirlegal treatment has been the foundation andprecedent for the juridical category pirates nowshare with terrorists and war criminals. Andin another development that loops us back tothe present, he notes that at the high pointof nation-state sovereignty at the turn of thenineteenth century, privateering was bannedby international treaty (pp. 89–91). It has nowslipped back into practice through neoliberalcontracts.


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What happens when hostis humani generismeets the doctrine of homo sacer or whenSomali pirates and Internet vigilantes open up“worm holes” (Benton 2010) in internationalsovereignties? Two incidents that answerthe first question is Blackwater’s McArthurprivateer, which was emboldened to use lethalforce without legal sanction, and U.S. snipersfiring on a hijacked lifeboat of the MV MaerskAlabama, actions that were not covered byany ratified treaty or international law. Butthese American antipiracy efforts stand out asexceptions within a general hesitation towardpirate prosecution that often grounds on itsown legal reefs. Thus, Hansen & Stepputat’s(2006, p. 297) urging that we view “sovereigntyas a tentative and always emergent form ofauthority grounded in violence that is per-formed and designed to generate loyalty, fear,and legitimacy from the neighborhood to the

summit of the state” is a statement that seemsboth unnecessary and correct. Internationalplayers can read the actions of Somali’s piraticalcoast guard—they are quite successfully andfamiliarly establishing a form of nonstate, defacto sovereignty. To oppose them would beto oppose the ideology of the neoliberal orderthat keeps tuna boats and tankers bangingagainst Somalia’s tattered shore. And to punishWikiLeaks and The Pirate Bay founders tooharshly would be to undercut the overweeningsovereignty of the market (p. 297) and theprivate domain of the individual consumer.Piracy is nonstate neoliberal sovereigntytaken to its extreme. Whether it produces arevolution toward communitarian free cultureor self-interested libertarian anarchy remainsto be seen, but there is no question that weare witnessing the returning dawn of a pirateage.

DISCLOSURE STATEMENT

The author is not aware of any affiliations, memberships, funding, or financial holdings that mightbe perceived as affecting the objectivity of this review.

ACKNOWLEDGMENTS

The author is grateful for the encouragement and key suggestions of Jessica Cattelino, JohnComaroff, Alex Dent, Julian Dibbell, William Mazzarella, Daniel McNaughton, and ConstantineNakassis. She would also like to thank Mateo Taussig-Rubbo and Alex Dent for sharing earlyversions of their work. But most of the heavy lifting was performed by graduate students JoeBonni, Chris Grant, and Brian Wilson, who contributed both materially and intellectually to thiseffort. Any errors or gaffs [sic] remain my own.

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LS07-Frontmatter ARI 26 September 2011 12:41

Annual Review ofLaw and SocialScience

Volume 7, 2011Contents

The Legislative Dismantling of a Colonial and an Apartheid StateSally Falk Moore � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Credible Causal Inference for Empirical Legal StudiesDaniel E. Ho and Donald B. Rubin � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �17

Race and Inequality in the War on DrugsDoris Marie Provine � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �41

Assessing Drug Prohibition and Its Alternatives: A Guide for AgnosticsRobert J. MacCoun and Peter Reuter � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �61

The Triumph and Tragedy of Tobacco Control:A Tale of Nine NationsEric A. Feldman and Ronald Bayer � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �79

Privatization and AccountabilityLaura A. Dickinson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 101

The Conundrum of Financial Regulation: Origins, Controversies,and ProspectsLaureen Snider � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 121

Corporate and Personal Bankruptcy LawMichelle J. White � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 139

Durkheim and Law: Divided Readings over Division of LaborCarol J. Greenhouse � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 165

Law and American Political DevelopmentPamela Brandwein � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 187

The Legal ComplexLucien Karpik and Terence C. Halliday � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 217

U.S. War and Emergency Powers: The Virtuesof Constitutional AmbiguityGordon Silverstein � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 237

The Political Science of FederalismJenna Bednar � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 269

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LS07-Frontmatter ARI 26 September 2011 12:41

The Rights of Noncitizens in the United StatesSusan Bibler Coutin � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 289

Innovations in Policing: Meanings, Structures, and ProcessesJames J. Willis and Stephen D. Mastrofski � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 309

Elaborating the Individual Difference Componentin Deterrence TheoryAlex R. Piquero, Raymond Paternoster, Greg Pogarsky, and Thomas Loughran � � � � � � � 335

Why Pirates Are BackShannon Lee Dawdy � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 361

The Evolving International JudiciaryKaren J. Alter � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 387

The Social Construction of Law: The European Court of Justiceand Its Legal Revolution RevisitedAntonin Cohen and Antoine Vauchez � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 417

Indexes

Cumulative Index of Contributing Authors, Volumes 1–7 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 433

Cumulative Index of Chapter Titles, Volumes 1–7 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 436

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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WHY PIRATES ARE BACK