December 2010

In Search of Intellectual History: Reflections on Law, Empire, Pirates, and Revolutions

Bruce Buchan, Griffith University

David Armitage and Sanjay Subrahmanyam (eds) The Age of Revolutions in Global Context, c. 1760–1840, Houndmills, Palgrave Macmillan UK, 2010 (336 pp). ISBN 9-78023058-047-3 (paperback) RRP $41.00.

Lauren Benton A Search for Sovereignty Law and Geography in European Empires, 1400–1900, Cambridge, Cambridge University Press, 2010 (356 pp). ISBN 9-78052170-743-5 (paperback) RRP $43.95.

Jane Burbank and Frederick Cooper Empires in World History Power and the Politics of Difference, Princeton, Princeton University Press, 2010 (528 pp). ISBN 9-78069112708-8 (hard cover) RRP $55.95.

Paul D. Halliday Habeas Corpus from England to Empire, Cambridge (Mass.) Belknap Press of Harvard University Press, 2010 (512 pp). ISBN 9-78067404-901-7 (hard cover) RRP $65.95.

Daniel Heller-Roazen The Enemy of All: Piracy and the Law of Nations, New York, Zone Books, 2009 (295 pp). ISBN 9-78189095-194-8 (hard cover) RRP $43.95.

Frederick G. Whelan Enlightenment Political Thought and Non-Western Societies: Sultans and Savages, New York, Routledge, 2009 (228 pp). ISBN 9-78041599-928-1 (hard cover) RRP $151.20.

As we await the commencement of the new National Curriculum in Australian schools, it is timely to reflect on one of the key subjects in that curriculum; one that has attracted its fair share of controversy in recent times, namely, history. In my own schooling, history seemed a rather dusty and uncontroversial subject, and of all the sub-fields of history, that dealing with Australia’s past seemed the least inviting, the most uninteresting. In more recent years however, Australian history has undergone a resurgence of public interest, in part at least due to controversies over supposedly ‘black armband’ or ‘whitewash’ accounts of our colonial past. Inevitably, this resurgence has contributed to a renewed focus on what may be termed the intellectual history of colonisation.

The study of the manifold ways in which colonisation was accomplished, not just by guns, germs and steel, as Jared Diamond (1999) has put it, but by the words, concepts and ideas that framed colonial relationships is a familiar theme in research on American, Canadian, and more broadly ‘Atlantic’ colonial histories. It is also gradually gaining greater attention in Australia (for example, Buchan 2008). A key feature of this intellectual history of colonisation is the effort to place Australia’s colonial past in a global perspective, and thus to challenge more insular histories that insist on Australia’s isolation, uniqueness, or exceptionalism. Interestingly, it is an appreciation of the global perspective that stands out as one of the salient aims of the new National Curriculum.

In pursuing this aim, the National Curriculum is laudably prompting Australian teachers and students to catch up with what is a vibrant, challenging and fast growing field of world history. World history of course has many forms and foci, but the books I have chosen here each in different ways contribute to intellectual history, and to the ways this approach can be used to explore world history. Perhaps nowhere is this more apparent than in the history of European empires and the complex pattern of theories and ideas entwined with the rise and reach of those empires. One may take as an illustration the pervasive influence in European thought of schemes of social and historical progress from ‘barbarism’ toward ‘civilisation’, in which Europeans persistently portrayed themselves at the summit of civilised refinement. As Frederick Whelan contends in Enlightenment Political Thought and Non-Western Societies: Sultans and Savages, such schemes had many sources in European thought but they arguably reached their apogee in the ‘conjectural histories’ of ‘stadial’ social development articulated by key thinkers of the Scottish Enlightenment (such as David Hume, Adam Smith, Adam Ferguson, and John Millar). Such was the power of the assumption of social progress, as Whelan (pp. 8–12) points out, that even a more sceptical thinker like Hume could still see in Native American societies a glimpse of ‘primitive’ humanity.

Supposedly less civilised peoples represented potent threats to the civilised world.

One of the consequences of such schemes was that supposedly less civilised peoples, whether ‘savage’ Americans or ‘barbarous Turks’, represented potent threats to the civilised world; a potential source of invasion and tyranny. Whelan (pp. 15–21, 100) argues that such a fear also lay behind the wildly exaggerated image of ‘oriental despotism’ that Hume and many among his contemporaries (with some notable exceptions such as Anquetil and Burke), pictured as endemic to the east. So potent were these fears that Hume, so regularly seen as the kindly face of the Enlightenment, could recommend the suspension of the ‘laws of war’ against ‘barbarians’ (p. 45). Such sentiments, as I have argued elsewhere (Buchan 2009), were hardly unique to Hume because they rested in large part on a pervasive and seductive image in European thought of these threatening ‘barbarous’ and ‘savage’ others. It was an image that could be used to buttress arguments for European superiority, or even for empire, colonisation, and war. At its base however, it remained an image. As Whelan (pp. 59–60) points out, the Scots’ own view of ‘savage’ life was more often ‘conjecture’ than ‘history’, as their variance with more sympathetic direct observers of native Americans, French Jesuits Francois-Xavier Charlevoix and Joseph-François Lafitau, illustrates.

We would do a disservice to the Enlightened Scots, however, to restrict our attention to their images of barbarism and savagery. The history of European image-making of threatening others is long and rich. In one of the more interesting recent contributions, Daniel Heller-Roazen’s The Enemy of All: Piracy and the Law of Nations, explores the image of the pirate as the hostis humani generis, the enemy of all humankind. The book is primarily a study of a centuries-old tradition in European thought, dating back to the age of classical Greece, that Heller-Roazen explores by means of close analysis of the legal texts and of the words and phrases that defined ‘the pirate’ as the enemy of all humankind. Heller-Roazen’s is not a book about piracy as such, but about the incredibly influential figure of the pirate, the sea-rover, maritime plunderer, or corsair, who keeps no faith, and with whom no faith is to be kept. The remarkable longevity of this image is partly explained by the fact that the pirate is ‘a creature of legal authority’, a necessary enemy ‘against which the civil order must variously strive’ (p. 38). That striving has been marked by the persistence of the view, especially following the work of enlightened international lawyers such as Wolff and Vattel, that pirates are outside the laws of war, and may therefore be hunted down by any person and by any means (pp. 99–117). In practical terms of course, the story is a lot less clear as various states at various times have nurtured, collaborated with, turned a blind eye to, profited from and so made deals with supposedly ‘faithless’ pirates.

Heller-Roazen’s reading of the conceptual history of the pirate is compelling precisely because it helps to explain why the figure of the pirate has been, and continues to be so important in Western thought and jurisprudence. The figure of the pirate serves as a necessary fiction, in a similar way to the figure of the terrorist today. The pirate is not only a marker of law and legality by signifying that which is beyond the law, but is also a symbol of the juristic significance of the term ‘humanity’. The figure of the pirate is both a marker of the supposed boundary between humanity and inhumanity, but is also a troubling illustration ‘of humanity irreconcilably at odds with itself’; a manifestation of Immanuel Kant’s ‘unjust enemy’ with whom no peace is possible and against whom civilised ‘humanity’ must wage incessant war (pp. 161, 188–89). Piracy, war and law seem inextricably bound.

The figure of the pirate serves as a necessary fiction.

That binding should not blind us, however, to the many complex ways in which laws, such as the English laws in Paul Halliday’s Habeas Corpus: From England to Empire, operate through the sometimes surprising and unpredictable agency of judicial decision. At first sight, this does not seem like intellectual history, but Halliday’s study reminds us of the centrality and the effects of debate over and interpretation of ideas and concepts in history. He warns us not to see the great institution of habeas corpus (the legal writ to ‘produce the body’; a demand to present a prisoner, their circumstances and the charges on which they are held (or the ‘return’) for judicial decision) simply as a product of English liberty. Rather, habeas corpus appears as a preeminent royal prerogative; an institution that grew out of the development of English state sovereignty rather than English liberty (pp. 7–9). A number of interesting consequences flowed from this seemingly inauspicious beginning. One was the assumption by justices of the King’s Bench from the 17th century onward of a superintending agency over places of private and public imprisonment and over lesser courts. Another consequence was the implied passivity of the ‘body’ produced before the court (p. 58). And yet, that passivity was underpinned by uses of the writ to decide on cases of imprisonment of British subjects. Subjects were of course nominally passive before sovereign authority, but uses of the writ illustrate in Halliday’s (pp. 70–71) view that both subjects and sovereigns were in fact bound together, tied in a reciprocal relationship of allegiance and protection. And here the writ of habeas corpus, Halliday (pp. 174–176) tells us, took on an unexpected role without precedent. The application of habeus corpus in a variety of cases across Britain’s Empire, bestowed legally enforceable rights on and thus ‘made’ a variety of new subjects from former slaves or beaten wives.

Halliday’s study asks us to think of legal history in terms of arguments made in courts determined by the need to win cases, and not necessarily as defences of principle. He speaks of ‘vernacular liberty’ as the substance of these arguments. Rather than the liberty of ‘great political thought’, vernacular liberty consisted in more humble claims to a rightful sphere of activity depending on one’s behaviour, social status, and reciprocal obligations consistent with ‘commonsense norms and English law’ (pp. 178–179). Liberty, in Halliday’s (p. 201) memorable phrase, ‘remained law’s subject.’ Though it sounds humble, Halliday argues that just this kind of ‘vernacular’ and ‘commonsense’ argument enabled the application of habeas corpus in a string of cases that ‘marked out an astonishingly vast subjecthood’ throughout the Empire (p. 179). But the path of law’s reach was not smooth or certain. The writ remained focused on the actions of gaolers rather than the rights of prisoners. It thus allowed for a differentiated subjecthood, in which British laws applied inconsistently to subjects (in India for example) who were not also Britons by birth or descent (pp. 286–288).

This uneven, inconsistent, and unpredictable spread of law (and of the sovereignty on which it hinges) is the very subject of Lauren Benton’s A Search for Sovereignty. Benton’s claim is that the common image of the monolithic extension of territorial sovereignty by European powers in the age of empire is an artificial one that bears little resemblance to the Early Modern maritime empires of Portugal, Spain, Britain, or France (p. 30). Benton argues for a less linear notion of imperial sovereignty; a sovereignty that spread along winding river corridors, relied on fragile ‘islands of law’ on ships that plied notionally sovereignless seas, and created a patchwork of enclaves of more or less sovereign spaces on land and sea in a variety of colonial settings (p. 235).

Empires are surprisingly flexible institutions.

This approach complements the analysis of Jane Burbank and Frederick Cooper, in their Empires in World History: Power and the Politics of Difference, who begin their comparative analysis of empires by reflecting on ‘imperial repertoires’ of rule which not only incorporated a reliance on past practice and precedent, but also a pragmatic willingness to improvise and invent as circumstances required (p. 3). For Benton, and for Burbank and Cooper, empires appear as dynamic entities; certainly not the monolithic and immobile presences of popular imagination. Imperial sovereignty appears more often in Benton’s study as provisional and tentative, or ‘uncertain and uneven’ in Burbank and Cooper’s words (Burbank and Cooper, p. 306). Empires should thus be understood in light of Benton’s, Burbank and Cooper’s research as surprisingly flexible institutions, active employers of cultural and other differences, and generators of a surprising range of imagined ideals and communities within them (Burbank & Cooper, pp. 11–17). In this sense, Benton, and Burbank and Cooper, each contribute to a deeper understanding of empires not simply as political institutions, but as complex entities resting on and generating a range of concepts, ideas and assumptions about the nature of sovereignty, the right of conquest, and the nature of subjection. Each, then, makes a valuable contribution to the intellectual history of empires and imperial sovereignty, broadly conceived.

Benton’s book is not just a global history of European imperial sovereignty, but of the pairing (indeed the interdependence) of European sovereignty with European geographic knowledge. In this investigation into the origins of imperial sovereignty, travel literature rates alongside legal discourse, while pirates and penal settlers become the often very willing accomplices of the spread of sovereignty. In this confusing and confounding milieu, imperial sovereignty could be thought of in many ways. As a claim to control certainly; as an entitlement to ownership too; but also as a useful tool in ‘legal posturing’ designed to exonerate, excuse, or to justify the actions of adventurers in far distant places. Above all, imperial sovereignty was less an ediface than a threshold, less an ‘absolute title to territory’ than a ‘flexible’ claim of ‘rights to possession superior to that which other contenders could muster’ and resting on a variety of ‘legal proofs’ (p. 56). In this way, early European imperial sovereignty adapted itself to diverse circumstances in surprising ways: at times by tolerating piracy as a mode of imperial expansion, at other times suppressing it; at times absorbing Indigenous peoples under its sway, at other times recognising Indigenous polities and adjusting to pre-existing Indigenous legal arrangements (pp. 144, 149). Once again the question of subjection and subjecthood raises its head here. How could European sovereigns gain or keep control over such far-flung empires and such diverse subjects? One way was by the threat of treason, a charge that could dash any colonial adventurer’s hopes of legitimacy, and a potent sign of the universal sway of the sovereign’s law. And yet, when applied in the colonies, and especially in cases of Indigenous resistance and conflict, even the law of treason could make subjects; for treason can only ever be a crime of subjects and hence a consequence of sovereignty (pp. 94–95).

These books invite us to look at how words shape our understanding of world history.

In their various, insightful and often surprising ways, each of these books invites us to look more closely at how words have shaped and continue to shape our understanding of world history. For Benton the key word is sovereignty, and her book is a salutary corrective to the assumption that European empires claimed, much less contained solid territorial sovereignty. Most often, sovereignty ‘followed corridors of control’ up rivers and across seas, creating ‘differentiated intra-imperial zones and, within them, anomalous enclaves’ of more or less direct control (p. 103). For Burbank and Cooper, empire is the focus, and their work points to the great diversity of imperial strategies of rule. Importantly, that diversity could usher in similar consequences, as in the different paths taken by the Spanish maritime and Ottoman territorial empires toward the incorporation of a wide range of new subjects within and under imperial rule in the Early Modern period (pp. 117–148). Despite, or perhaps because of their ubiquity, arguments for empire continued to invite criticism and debate, especially within European thought, as Burbank and Cooper point out (pp. 168–169). The idea of a ‘will to empire’ in Western history thus appears unlikely. For Whelan in particular, the association of the European Enlightenment and empire is clear enough, but in his view the Enlightenment was not itself a definable ‘project’, much less a project of empire. The European Enlightenment, he suggests, was more an intellectual orientation, an attitude of mind often at variance with and critical of other strands of Europe’s Enlightened endeavours, including empire (pp. 169–174).

Burbank and Cooper present empires as productive of social change, and even revolution, noting that the tensions of imperial rule and networks of imperial trade and communication were inseparable from the American, French and Haitian revolutions of the late 18th century (pp. 219–250). Scholarly opinion on the dynamics of revolutionary change in this classic ‘age of revolutions’, and even on the term itself, is by no means settled. In their challenging collection of essays entitled The Age of Revolutions in Global Context, c. 1760–1840, David Armitage and Sanjay Subrahmanyam contend that the ‘age of revolutions’ should be seen in terms of a global convergence of revolutions understood as seismic upheavals within societies that fundamentally altered their social, cultural and political constitution (pp. xvii–xxiii). The essays in this volume are not all focused on intellectual history but, as Armitage and Subrahmanyam make clear in their introduction, such a volume would be incomplete without reflection on the central concept. Moreover, each essay provides rich material with which to rethink not only the concept but the idea of a ‘revolutionary age’. This ‘revolutionary age’ has long been seen in terms of the American and French revolutions that cemented the model of an industrialising and democratising West as the template for modernity. Regularly overlooked here is the equally radical import of the revolution of former slaves on Haiti and its implications for European thought (Buck-Morss 2009). The essays in Armitage and Subrahmanyam’s book move us toward seeing the late 18th century ‘age of revolutions’ as marking a period of ‘convergent revolutions’ across Europe, Asia, Africa and the Americas, shifting our attention to the divergent but interconnected sources of truly global patterns of radical social change but also of remarkable political stability (pp. xxvi–xxxi). The revolutions examined in the various essays share some obvious features, insistent demands for change, and resultant political turmoil and uncertainty, but they led in quite remarkably different directions. In his contribution to this collection, David Geggus (p. 97) notes the authoritarian quality of the slave uprising on Haiti; in hers, Maya Jasanoff (p. 56) argues that the American Revolution ‘had the effect of fortifying British imperial rule’. In his contribution, Gary Nash explores the connections between the mass consumption of commodities produced in the emergent global market place, and the mass consumption of politics in the French Revolution (pp. 33–34), while Joseph Miller makes a strong case for placing Africa at the heart of Europe’s revolutionary commercial and imperial expansion in the Early-Modern period (pp. 104–106). In these various ways, the collection inspires a reappraisal of the conventional Eurocentrism that has characterised earlier histories of the period, by tracing the global implications of a key concept in those histories, the concept of revolution.

Words and concepts alone do not make history.

Of course, words and concepts alone do not make history, but as Paul Halliday (p. 4) observes, ‘[h]istorical analysis requires a search for the ideas and concerns of others’; a search he conducted by privileging judicial decisions over legal theories. History, however, cannot be known to us only as a record of deeds. Indeed, the past is only ever accessible to us by means of words. Historic deeds can only be explained, described, known, condemned, or justified through words—words recorded on paper, in memory, or on tape. Even historic images must be rendered, evaluated and communicated in words. Words, of course, are never the neutral descriptors that positivists imagine. Words convey ideas and abstract concepts; words encompass assumptions, and point to unstated implications; words rely on nuance, and on the silences that lie beyond the written or spoken word; and words are often opaque, impervious to definite interpretation, resonant because they create a deliberate vagueness of expression. History is, or should be a pre-eminent field for the study of words and their manifold possible meanings. Too often though it is asserted that history is a study only of recorded facts, as if the recording of those facts can leave no room for doubt as to what those facts are, or what they indicate.

There are still many historians of course who will argue that intellectual history is not proper history. History, they will say, is the preserve of facts derived from the records and archives, about which there can be little or no dispute. What lies behind such sentiments is rarely the kind of desiccated empiricism such words imply. Rather, the intent is usually to deny legitimacy to historians who argue that our knowledge of the past derives from more than records in archives. These other historians, among whom I include intellectual historians, are attuned to the traces of the past in memories, in words spoken and written, in locations, in the spaces we inhabit and in the places we don’t. It is to an appreciation for this fuller and richer history; a history encompassing archival rigour as well as an active engagement in conceptual analysis, toward which this recent scholarship in global history insistently points. It is to be hoped that Australia’s new National Curriculum can go some way toward this goal. Whether or not it does, our ability to understand the past, to engage with it, to interpret it and to think in its terms, is well served by a scholarly turn to the conceptual and intellectual dimensions of world history.

REFERENCES

Buchan, B. 2008, The Empire of Political Thought: Indigenous Australians and the Language of Colonial Government, Pickering and Chatto, London.

Buchan, B. 2009 ‘The Subject of War: From Salamanca to Sydney Cove’, Global Change, Peace and Security, vol. 21, no. 1, pp. 53–68.

Buck-Morss, S. 2009, Hegel, Haiti and Universal History, University of Pittsburgh Press, Pittsburgh.

Diamond, J. 1999, Guns, Germs and Steel: The Fates of Human Societies, W.W. Norton, New York.

Bruce Buchan is an Australia Research Council Future Fellow (2009–2013) in the School of Humanities at Griffith University. He is working on a program of research focusing on how ideas of civilised warfare, as an activity pertaining to the subjects of sovereign states, emerged in European political and international thought c.1650–1800.

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