The Atlantic Inheritance of the Mediterranean World
To speak of the law of the sea in broad terms across centuries of Christian Mediterranean and Atlantic history is to risk oversimplifying a great deal, and here the risk needs to be ventured.
Not only have historians and theorists of international relations worked to problematise triumphalist and developmenÂtal narratives of their subject, but they have also questioned its coherence as a historical concept in the first place. If such is the case for the law of nations, it is even more the case for the law of the sea, which appropriately stands in as one of the more slippery subjects in histories of law and empire. Before the 1982 United Nations Convention on the Law of the Sea, it is often unclear what to make of the term â€?law of the sea’. Its application to historical settings can be anachronistic and potentially misleading. So, why use it here? Because what concerns me here is the idea that there could be such a thing as law or laws covering oceanic spaces, and so the challenge that such spaces posed to the development of the legal and political theory of early modern empire. In takÂing into account the conjoined histories of human law and the world ocean, for a start one must include the law of merchants, contracts, access to fisheries, naval command, captains and commanders, slavery, slaves, the lives and legal status of sailors, what would come to be called admiralty jurisdiction, piracy and the laws of property seizure, police, the laws of war, laws of conquest and settlement, natural law or the law of peoples, acknowledged, partially acÂknowledged, and unacknowledged shipping routes and state control over them, citizenship, nationality, and the legal status of travellers and refugees, impressment, insurance, currency, wreckage and property loss, identification of tidal range and the defining of shorelines, wrongful death, various forms of fraud, the civil and customary laws of littoral and voyaging populations, what knowledge might be had of other forms of life in or on the sea, and finally, the gods, or God. If one can speak of the law of the sea before the decades leading up to the United Nations Convention, it is not a settled body of legal principles or precedents but a global patchwork of imperial legal and political contestaÂtion. If you are talking about the law of the sea, you are talking about very little specifically beyond the idea of the law of the sea. That should not stop us from thinking and talking about that idea.The question, then, is to what extent the idea of extending or recognizing law at sea is a useful analytical tool for getting at the imposing and incomplete list above. This chapter argues that it has been and continues to be just that. Lauren Benton and Lisa Ford have argued persuasively concerning early nineÂteenth century British imperial administration that a rhetoric of system and a â€?rage for order’ should not be confused with the actual existence of a uniform and ordered system, and that warning can usefully be extended to other con- texts.[886] Still, that should not stop us from thinking broadly across those distincÂtive contexts. The law of the sea has been less a body of law than a materially geographic and substantively philosophical problem for legal and political thought, and it has been so from its beginning in the west. The ways in which it has been so have changed, and the history of those changes can be placed at the centre of the wider history of law and empire. This is not a then so much a history of social or legal constructions of the ocean as of law's changing recogÂnitions of oceans, seas, and shores. Socio-legal scholar Renisa Mawani has arÂgued that the ocean, in its perpetual movement and resistance to complete classification and codification, suggests itself as a method for legal studies of human empire and migration.[887] But if the ocean has been and continued to be a critical testing ground for the limits of law and empire, how might begin to put legal study in conversation with the study of the ocean itself? What have natural law and natural history had to do with one another? Melville hints that the answer is: quite a lot, and I think he is right.
People using the languages of natural law and the law of nations within and across the boundaries of European early modern states and empires were usÂing conceptual tools inherited from Roman legal thinking. The authorities of Justinian's respective codifications recognised a complex web of legal relationÂships within and beyond the authority of Roman law; and indeed, in texts that are famous for their ambition and their central place in the legal and intellecÂtual history of empire, the maritime sections of both the Institutes and the DiÂgest are quite explicit about the limits of the respective laws and claims of specific jurisdictional authorities. The sea, of course, along with the shore, is the penultimate example of that which cannot be owned:
The things which are naturally everybody's are: air, flowing water, the sea, and the sea-shore. So nobody can be stopped from going on to the seaÂshore... The law of all peoples gives the public a similar right to use the sea-shore, and the sea itself. Anyone is free to put up a hut there to shelter himself. He can dry his nets, or beach his boat. The right view is that ownÂership of these shores is vested in no one at all. Their legal position is the same as that of the sea and the land or sand under the sea.[888]
In time, both rights to trade, take possession, and the establishment of soverÂeignty itself would come to be understood in explicitly contradictory terms. Whole coasts were taken charge of, controlled, and policed in the history of European exploration and empire. It is also the foundation of a fraught legal history of the coast that continues, paradoxically, with concentrated state efÂforts to police the efforts of North African refugees in the Mediterranean to reach shores of the former empire, or disputes over privatisation on the comÂmon beaches of California. The sea in its life as a Roman legal idea is an open space governed by the law of all peoples and by the developing customs of litÂtoral communities in their theoretically peaceful and sociable communicative and economic relationships that crossed the jurisdictional boundaries of reÂspective peoples and empires.
The sea-shore is the opening out of civil law onto this space, and law beyond that point is situational and negotiated. The Digest of Roman Law in the sixth century makes this clear in its reconstruction of and reliance on Rhodian maritime law, a loosely defined set of rules said to originate in the mercantile customs of the Mediterranean traders in the Greek islands several centuries before the common era. In point of fact, the Rhodian code that would come to play such an influential role in the construction of medieval maritime legal frameworks was not collected and published until the eighth century, centuries after the work of the jurists collected in the Digest in the middle of the sixth century under Justinian (indeed, it is very likely that the Digest shaped what came to be reconstructed as Rhodian maritime law more than the other way around).[889]Four our purposes, there are three things that stand out in the Digest that have a long life in the history of European law. First, maritime affairs are a matÂter of praetorian jurisdiction, which is to say judgment followed from a general consideration of balancing principles of equity in natural law with regional custom and the facts of a specific case. There is a preliminary tension here that will play out in different forms over the course of European and American hisÂtory between the powerful conciliar and discretionary juridical authority asÂsigned to equity and admiralty on the one hand and the geographic and geopoÂlitical realities of the limits of the reach of any legal authority at sea. Respecting the frequency of loss and damage at sea, and balancing the need to provide a legal framework to facilitate Mediterranean commerce and travel that would nevertheless avoid condemning shore-based investors and owners to perpetuÂal liability, there are broad limits placed on what constitutes right of action, and sailors, captains, and ship owners are liable for loss only in very specific circumstances.
The ship is acknowledged as a legal venture in which risk is shared and profit far from secure. Proportional loss of property in the event of necessary jettison is guaranteed: â€?the sacrifice for the common good must be made good by common contribution', although in the case of bargaining for ransom with pirates on the open sea, responsibility rests solely with the party that possessed the goods in question and decided to give up that property for safe passage.[890] [891]This brings us to the second thing we ought to pay attention to here: for all of the imperious jurisdictional authority and magisterial power we associate with Roman law writ large, the maritime aspects of it are striking for their acÂknowledgment of a world beyond municipal control at sea. Far from being the terrifying personification of pure lawlessness and exception, pirates like storms are taken to be part of the risks one takes in maritime transport. The value of slaves is not compensated in the event of loss of life or escape, and if slaves do escape over sea and to their homeland they are acknowledged in the Institutes to have regained their freedom. Finally, and perhaps most importantly, while the sea is a place of strained and negotiated legal authority, it is far from lawÂless and even further from empty. Indeed, for a petition of one Eudaimon of Nicomedia to the Emperor Antonius that told of being robbed after shipwreck in the Cyclades Islands, the Emperor is quoted in the Digest to have responded that â€?I am, indeed, the Lord of the World, but the Law is the Lord of the sea, and this affair must be decided by the Rhodian law adopted with reference to mariÂtime questions, provided no enactment of ours is opposed to it'd2 Long before Cnut, even the ultimate temporal power was constructed by its defenders as an office that treaded carefully around water.
This truth of jurisprudence had wide backing in the world of ancient and imperial thalassography that informed it.
Law was as much an instrument of empire for the Greeks and Romans as it would be for early modern Spanish, French, and British projects in the Americas, or for Britain and the United States in the projection of modern maritime power. That the polities which would become classified as European and western were lawful and their rivals were not was an elemental part of Greek and Roman self-understanding, in much the same way that British projectors of Protestant empire would depict their differences from the slavish â€?black legend' of Catholic Spain's conquests across the Atlantic Ocean. Homer's Odyssey depicted an ancient eastern MediÂterranean world that was characterized by a dense plurality of distinctive laws and orders, and as Emily Wilson points out in the introduction to her new translation, a good deal of the story is driven by the consequences of respecÂtive failures to abide by largely unwritten rules and customs of hospitality and refuge. The titular hero negotiates these distinctive spaces and regimes, of which Poseidon’s rule over the sea is only the most powerful of several, and no mortal party is spared loss of life when they or their leader overstep or abuse acknowledged rights of maritime travellers, like taking refuge on the shore.[892] [893] [894] [895] Herodotus depicts a similar world of astonishing plurality and the Greeks as a group who, in contrast to Xerxes and the Persians, study and appreciate that plurality and the power of the sea that surrounds them?4 Aristotle, Strabo, and Ptolemy knew the waters beyond the Strait of Gibraltar as the great river okeanos, Latinized as oceanus: a formidable current that surrounded the known world of human habitation. And even if he travelled in a somewhat less enÂchanted world, very little of this awareness of the undomesticated nature of the sea and the ocean beyond it had changed by the time Virgil’s Aeneas enÂtered the history of law, literature, and empire?5The natural histories of Pliny the Elder in the first century depict the sea as a space of strange, mysterious, and even dangerous forms of life, taking note of the size and power of whales, the unsettling intelligence of the octopus, the threat of sharks to divers, the futility and costs to government of attempts to engineer tidal zones to human needs, and the physical and moral risks of conÂsuming shellfish. This could not only make one sick, but was thought to be one of the leading causes of a decline in morals and the adoption of a luxurious, effeminate, and virtue-sapping lifestyle?6 Early Christian thought would conÂfirm an ancient understanding of the ocean in particular as an unpassable body of water and the sea as largely inhospitable to human life and flourishing. Only shortly after Justinian, in On the Nature of Things Bishop Isidore of Seville would cite classical and early church authorities on the ocean as a kind of livÂing creature, driven in perpetual motion by the â€?nostrils of the world’ that must exist in its unexplored depths, its size beyond compare, and the worlds beyond it unreachable.[896] In his Etymologies, Isidore provided a history of the knowlÂedge that the water of the sea and the ocean was bitter and undrinkable, conÂsuming the fresh water that flowed into itd[897] Life in the sea was equally mysteriÂous. Whales the size of mountains throw waves like no other living thing can. Isidore quotes the Psalmist of the Vulgate: â€?The sea is great and spacious; there are creeping things without number'd[898]
Undoubtedly, there is a certain romance of the sea detectable in these acÂcounts that surprises no student or wielder of modern maritime imaginaries. What needs to be appreciated here is the simultaneous recognition of the sea in jurisprudence and natural history. This allowed the sea - even more so, the ocean - to become recognised as a space of jurisdictional, cultural, and bioÂlogical plurality, a dense terrain that human law and activity traversed always incompletely, at great risk, and with the awareness that boundaries were being crossed, and that in return events would arise and judgments would be made beyond the authority of the laws of human polities on the land. In this ancient maritime prudence, it was in the face of the ocean itself and not pirates or Persians or fleeing prophets and prisoners that law confronted its starkest limÂits. Nicholas Purcell has recently warned that scholars turning to oceanic studÂies and history are in danger of uncritically accepting a kind of new romance of the ocean as sublimely ahistorical, and there is wisdom in that cautionary note, but it was precisely an understanding of the ocean as having laws and histories of its own that would need to be overcome for the settler colonial imagination of empire to make sense as a - perhaps the - fundamental basis of the globalized world that emerged from early modern legal and political theoÂries of European empires.[899]
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