Pirates, Highwaymen, and the Origins of the Criminal in Seventeenth-Century English Thought
Pirates, Highwaymen, and the Origins of the Criminal in Seventeenth-Century English Thought Megan Wachspress* INTRODUCTION This Note outlines a genealogy of the early modem English criminal. I posit an intellectual historical account of the relationship between international law concepts and the figure of the criminal in both canonical liberal social contract thought and the development of criminal enforcement in England. Tracing the figure of the brigand or latro' from international legal texts of the sixteenth century into seventeenth-century English political and literary tracts, I reach the following conclusion: "The criminal," as the figure would come to be understood in nineteenth- century thought, actually pre-dates a body of criminal law as such. Rather than a generalization following from the categorization of a series of offenses as "criminal," "the criminal," in its paradigmatic form of the highwayman, reflects the internalization of international law concepts in the nascent English state. Moreover, political theoretical accounts of criminal punishment in the seventeenth century relied on an "essentialized" understanding of the criminal personified in the international legal figure of the pirate. Besides being of historical interest, * Yale Law School, J.D. expected 2015, University of Berkeley, California, Ph.D. candidate in Jurisprudence and Social Policy. The author would like to thank David Grewal, who served as faculty supervisor for an earlier version of this paper, as well as Wendy Brown, Kinch Hoekstra, and David Lieberman, who continue to support the larger project of which this paper is part. An earlier version of this paper was presented at the 2013 Annual Meeting of the Association for the Study of Law, Culture, and the Humanities, where Keramet Reiter served as a thoughtful discussant.
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