When William Shakespeare penned The Tempest in 1611, the English state was undergoing a radical geopolitical transformation. The wreck of the Sea Venture in Bermuda two years prior had captured the public imagination, but more importantly, it had crystallised the legal anxieties of a nascent empire.
While traditional literary criticism often reduces the play to an allegorical farewell to the stage or a meditation on magic and forgiveness, a rigorous doctrinal reading reveals something far more structural. The Tempest is an early modern jurisprudential text; a profound exploration of the legal fictions that would eventually form the bedrock of Public International Law (PIL).
At the dark heart of the play lies a crisis of sovereignty and property: the expropriation of an island. Through the character of Prospero, the deposed Duke of Milan, Shakespeare provides a meticulous blueprint for how European powers weaponised legal doctrine to justify colonial expansion, relying heavily on the proto-doctrines of terra nullius and the Doctrine of Discovery.
To understand Prospero’s claim to the island, one must analyse the legal architecture of 15th- and 16th-century European expansion. The Doctrine of Discovery, formally articulated in Papal Bulls such as Inter Caetera (1493), established that Christian nations could claim imperium (sovereignty) and dominium (property) over lands populated by non-Christians.
The legal justification was predicated on a void, a deliberate erasure of indigenous legal ontology. If a land was not governed by a recognisable, "civilised" sovereign, it was legally deemed terra nullius; nobody's land.
Prospero does not arrive on the island as a conqueror leading an armada; he arrives as an exile. Yet, he immediately institutes a unilateral regime change. His legal justification for ruling over the island's native inhabitant, Caliban, perfectly mirrors the arguments deployed by early international law scholars like Alberico Gentili and later, Hugo Grotius. Prospero constructs a legal vacuum.
He delegitimises the prior sovereign, the Algerian witch Sycorax, casting her as a dark, unnatural force. By stripping Sycorax of legitimate sovereign status, Prospero retroactively renders the island terra nullius at the moment of his arrival.
However, Caliban presents a formidable doctrinal challenge. He is not a silent victim; he is a litigant articulating a clear claim of hereditary sovereignty. In Act 1, Scene 2, Caliban delivers the defining anti-colonial petition of early modern literature: “This island's mine, by Sycorax my mother, / Which thou takest from me.”
By reading The Tempest doctrinally, we are forced to confront the uncomfortable reality that modern international law was forged in the crucible of colonial expropriation—a system designed not to prevent the theft of the world, but to legalise it
Caliban’s argument is rooted in jus sanguinis (right of blood) and prior occupation. How, then, does Prospero legally circumvent this prior claim? He employs the “civilising mission”, a core tenet of imperial law that justified dispossession through the purported uplift of the “savage”.
As the Spanish jurist Francisco de Vitoria argued in De Indis (1532), indigenous populations possessed natural rights, but if they violated universal norms (such as the laws of hospitality) or were deemed incapable of rational self-governance, intervention—and ultimately subjugation—was legally permissible under the laws of war.
Prospero and his daughter Miranda validate their expropriation of Caliban’s land by citing their imposition of language and education. Miranda tells Caliban: “I pitied thee, / Took pains to make thee speak... But thy vile race, / Though thou didst learn, had that in't which good natures / Could not abide to be with.”
Thus, it is precisely here that the pedagogical becomes the juridical. The failure of the native to successfully assimilate into the European standard of “good nature” becomes the precise legal mechanism by which Caliban is stripped of his property rights and reduced to a state of enslavement.
Because Caliban attempts to assault Miranda—a violation of the laws of nature and hospitality in the European legal framework—Prospero is “justified” in declaring a state of exception, stripping Caliban of his native sovereignty and reducing him to the legal status of chattel.
The legal dynamic between Prospero and Ariel, the island's indigenous spirit, represents a different modality of international legal coercion: the unequal treaty. Ariel is bound to Prospero not by raw physical force, but by an indentured servitude justified by a prior “rescue” from Sycorax.
Prospero acts as a geopolitical saviour who exacts perpetual labour as the price of liberation. When Ariel demands his promised liberty, Prospero threatens to return him to his former torment, violently enforcing compliance. This reflects the coercive diplomacy often used to secure treaties from weaker indigenous polities, anticipating the strictures of unequal treaties that would later characterise the 19th-century colonial order.
Analysing The Tempest strictly through a doctrinal lens strips away the veneer of theatrical magic, exposing the brutal legal mechanics of empire. Shakespeare recognised that territorial expansion required not just gunpowder, but jurisprudence. Dispossession is not merely an act of violence; it must be transformed into an act of law.
The relevance of Prospero’s claim extends far beyond the early modern period. The fictions of terra nullius and the Doctrine of Discovery did not die with the British Empire. They formed the basis of domestic and international law regarding indigenous peoples for centuries.
It was not until 1975, in the Western Sahara Advisory Opinion, that the International Court of Justice formally repudiated terra nullius as a valid legal concept for populated lands. Similarly, it took the Australian High Court until 1992, in the landmark Mabo v Queensland (No 2) decision, to overturn the legal fiction that Australia was terra nullius before British settlement.
Today, as international lawyers debate the rights of indigenous populations under frameworks like the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Caliban’s claim remains a haunting indictment of international law’s foundational origins. The architecture of modern global governance was built on the precedent of Prospero's island.
By reading The Tempest doctrinally, we are forced to confront the uncomfortable reality that modern international law was forged in the crucible of colonial expropriation—a system designed not to prevent the theft of the world, but to legalise it.