Legal Challenges and Responses
Edited by Douglas Guilfoyle
Chapter 11: What is a pirate? A common law answer to an age-old question
Everyone has his or her own conception of a pirate. Anyone who has read Treasure Island or The Sea Hawk will have an idealised notion of a pirate. However, it is not as obvious as that. As one judge has said, ‘It is not necessary that the thieves must raise the pirate flag and fire a shot across the victim’s bows before they can be called pirates.’1 One might add that pirates need not have wooden legs and parrots on their shoulder. With such an engrained popular notion of piracy, it is important to distance oneself from such images and focus on the quintessence of piracy. The commercial and civil law requires such definitions, as much as public and international law. Legal rights and obligations, as well as offences and crimes, depend on a stable definition of piracy. It is far from satisfactory to leave such categorisations to impressionistic assessments. Pirates have been an endemic feature of the seas, coasts and islands from the earliest times, recorded from the time of the Sea Peoples in the Mediterranean. Piracy came in different flavours. There was organised piracy conducted as an instrument of state (by privateers) and piracy by rogue elements. Those pirates who were free of the ties of a state are those who seem to have attracted the greatest hostility and yet the distinction was in reality quite thin. In De Civitate Dei, St Augustine refers to a meeting between Alexander the Great and a pirate chief, during which the pirate defended his actions
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