The nineteenth-century American writer Herman Melville explicitly mentions the Byzantine Emperor Justinian twice in his epic novel Moby-Dick.
First, in Chapter 45, â€?The Affidavit’, the narrator Ishmael files a report on the history of angry and vengeful sperm whales, noting the case of Porphyrio, a large whale that was said to have attacked merchant ships in the eastern Mediterranean, and which eventually beached itself after decades of the Emperor’s failed orÂders to have the whale killed.[880] One of the possible sources for this history is the eighteenth-century historian Edward Gibbon’s own reliance on the sixthÂcentury Christian historian Procopius, allowing Melville to consider the limits of human power and authority at sea.
The second reference to Justinian comes in Chapter 89, â€?Fast-Fish and Loose-Fish’ where Ishmael reports that the cusÂtomary law alleged to have been developed by whalers to resolve disputes over possession of harpooned whales at sea was not only sufficient, but impressive enough to withstand comparison with â€?Justinian’s Pandects’.[881]Melville picks up two purportedly opposing currents in the history of legal and political thought, that of imperial or sovereign prerogative on the one hand and that of democratic lawmaking on the other, and he insists that they are not so separable as the reigning ideologies of his own imperial republic might imÂagine. Somewhat in the spirit of a kind of experiment in the boundaries of hisÂtory’s domain in legal and political theory, this chapter risks taking Melville seriously not only as a theorist but a historian - or at least a narrator - of law and empire, particularly although not exclusively in their maritime environÂments. Literature here is not just a primary but more usefully and importantly a secondary source for thinking anew about histories of oceans, laws, and empires.
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Certainly, Melville was not alone, nor was he particularly outlandish in reÂstaging law's relation to the ocean.
We might well remember the story of King Cnut, an eleventh-century Scandinavian ruler of England and Scotland. His dominion extended over the isle and much of the land touching the western North Sea, and he decided to perform a public trial of sorts, testing whether that dominion went so far as to cover the sea itself. Cnut famously placed a chair on the English shoreline, sat in it, and commanded that the sea not rise or dare to wet his boots. The tide rose, he got wet, and according to the legend he understood the message, recognising God as the one true king fit to rule the heavens, the earth, and with it the ocean. Indeed, he was said to never wear the crown again, and was remembered as a great and humble ruler. His humiliaÂtion by the tide becomes part of the legitimating narrative of his rule. CentuÂries later, in William Shakespeare's majestic telling of sovereignties, dukedoms, and island possessions denied, forgotten, and finally restored, The Tempest, the boatswain of the ship purportedly wrecked in the play's first scene retorts to Gonzalo, counsellor to the King, that â€?if you can command these elements to silence, and work the peace of the present, we will not hand a rope more, use your authority. If not, give thanks that you have lived so long, and make yourÂself ready in your cabin for the mischance of the hour'.[882] Gonzalo can only reÂspond with a declaration of his confidence in the boatswain's competence, and with a prayer.There is a lot going in these admittedly disparate passages, including mediaÂtions on the relationship between natural law and political rule, the geographiÂcal boundaries of lawful authority, and the dependence of the exercise and extension of imperial rule on the labour and knowledge of other people, parÂticularly on ships and the people with the skill to sail them. In both of these incidents there is a clear and particular recognition of the ocean as a legal enÂtity, a jurisdictional space and indeed a jurisdiction in its own right, and so - and this is absolutely crucial - not one solely subject to the authority of huÂman law or command.
Looking back from what we call the Anthropocene with its scepticism of prototypical Romantic images of nature as purely lawÂless and free, Shakespeare's implicit suggestion of an enchanted ocean, the ocean that might have laws that human beings did not write but were comÂpelled to acknowledge nevertheless, must strike the contemporary student of maritime and international law as fantastical, and not simply because of modÂern secularism. Up until the age of early modern Atlantic empires, a good deal of European thinking about human law and empire pertaining to maritime environments was concerned carefully to calibratejust such a balance: beÂtween the ocean as ungovernable on the one hand and the ocean as consisting of a different jurisdictional regime or regimes on the other, an intractable realÂity in a seascape of elemental relations of law.That calibration was challenged and largely forgotten in the formal history of legal and political thought as the overseas claims of empires and debates about the legal mechanisms of commerce and conquest helped drive the EngÂlish state and its Atlantic empire in particular toward a conflict between its settler colonialist and prerogative constitutional elements. The writing and publication of Thomas Hobbes' Leviathan, or the Matter, Form, and Power of a Commonwealth in 1651 came in the wake of decades of that conflict, and the publication of Herman Melville's Moby-Dick or, The Whale in 1851 came in the wake of the widely announced triumph of the former over the latter. It is in literature, then, that this chapter finds careful and important reflection on the historiography of oceans, laws, and empires. Reading literature as historiograÂphy, as critical if often playful and creative reflection to the narratives that shape legal and political imagination, can be an important part of the history and historiography of law and empire. In this case, literature challenges the conventional authority of a specifically disciplined contextualist mode of writÂing that history, inviting us to think once again about the ocean as a historical and legal force, or series of forces, in its own right, to let our own categories of lawful and ordered time and space get wet, and to recover the possibility of recognizing landscapes and seascapes as lawscapes, enchanted histories and environments through which we continue to voyage.
Read in the context of the challenge that the ocean posed to the construcÂtion of jurisdictional authority not only in legal theory but in the broader hisÂtory of political thought, the works of both of these authors intervene in their respective eras to insist that the modern accommodation of commonwealth to empire, the settler banishment of prerogative, the rule of law and not men, has hardly succeeded in banishing the raw and often arbitrary reality of discretion within and across what is revealed to be a much denser plurality of legal enviÂronments.
To understand the intellectual and political pressures on law and legal theory in early modern empire, we need to cast a wider net to include politics, political theory, and literature's examination of questions of law and sovereignty. In disentangling ourselves from historical and contemporary obÂsessions with the strictly formal and abstract nature of the concept of soverÂeignty, we can recover a much more nuanced study of the fraught and anxious plurality of times and places of practicing, wielding, and being subject to disÂcretionary judgment in political communities. In putting the ocean at the cenÂtre of our study of law and empire, and in putting nature at the centre of the history of natural jurisprudence, we can deepen our understanding of the hisÂtories of law and empire, and of our places in those histories.The focus here is on the legal and political literature of the Anglophone AtÂlantic world, in large part because the contest described above and its supÂposed resolution in the modern democratic republicanism of one of the settler societies it created would prove to be such an important part of how that sociÂety would come to understand itself historically. Blindness to mastery and domination has not ceased to be a problem for anyone. This is hardly a story that can be isolated to reified ideological frameworks of an Anglosphere, and certainly not to withering narratives of American exceptionalism. As Lauren Benton has shown, most notably in the Digest of Justinian and the early modÂern theories of Alberico Gentili and Hugo Grotius, previously articulated conÂceptualisations of the law of the sea from within the tradition of natural jurisÂprudence and the law of peoples had maintained a varied insistence on the sea as naturally free to navigation, subject to distinctive jurisdictions or even spheres of influence, but never closed off by legitimate claims to legally acÂknowledged and definable, enforceable possession.[883] There was more continuÂity than might be assumed at first glance between the res nullius and the mare nostrum of the Roman world and the mare liberum of early modern Dutch commercial navigation of the Atlantic and Indian oceans.
And as scholars of law, empire, literature, art, and cartography have demonstrated, a good deal of this awareness of other powers at sea would fade over the course of the early modern period as the ocean was increasingly depicted as flat, open, and empty, a mere fluid medium for the extension of empire through navigation and commerce.[884]Significant figures in more modern legal and political thought would go on to fall witlessly into this depiction of the ocean. There have been other ways of thinking about these things, however. Leviathan, for example, conjures the aweÂsome power of the beast of the depths described in the Book of Job (reserving his comments upon the one consistently obedient servant of God in the Book of Jonah, the whale, for obvious reasons). For Carl Schmitt, the distinction beÂtween Behemoth and Leviathan metaphorically conveys the distinction territoÂrial and maritime powers, and therefore contains a powerful criticism of impeÂrialism in his time. Global fantasies of exercising power and achieving supremacy without sovereignty were achieved through the unstable control of commerce and naval power at sea.[885] On the level of theory, many attempts to get critical distance on the conjoined history of liberalism with overseas emÂpire and control of maritime routes and resources remain indebted to the metÂaphysics of the state and sovereign exception Schmitt developed. But that tenÂdency leaves us with an incomplete, inaccurate, and most importantly impoverished set of narratives about law and empire over the course of the early modern period. Historians, political theorists, and other scholars have poked holes in the myths of sovereignty. This chapter is an experiment in the recovery and articulation of other myths with which to navigate.
The earth is not flat, and neither is the ocean, even at its surface, and even on a calm day. There exists material in the history of thinking about law, emÂpire, and the ocean in Europe and the Americas that can allow us to rethink our inherited understanding of the ocean as a legal dead zone, subject to nothÂing but the ability to claim what law there might be if any at all.
That history is one of human constructions and representations of the ocean, but only up to a point. What follows in this chapter then is less a historical critique of the constitutive myth of modern sovereignty than an attempt to imagine a historiÂcally constructed alternative, to take a cue from Melville and re-enchant the histories of law and the ocean. This essay will consist of an admittedly selective overview of the history of the law of the sea in early modern political thought, focusing on what I will call changes in the legal recognition of the ocean over time. It will end with a historical and jurisprudential appreciation of Melville’s use of Hobbes and an advancement of my own use of Melville to carry on the humanist study of power and the nature of legal pluralism beyond the soverÂeignty of the state, beyond the limits of the land, and beyond the horizon of the human.1