Sunday, April 4, 2021

Roman roots of modern approaches to water law

Ella Hermon recently posted "Perspectives on the history of water management: ancient roots of modern approaches". It's a very short piece but filled with references to her publications in French on Roman law issues such as flooding, integrated management, riparian ecosystems, and more, for instance her article "La culture juridique romaine de gestion résiliente du risque d’inondation", published in Index in 2020.

Thursday, March 25, 2021

Ecological consequences of Spanish colonialism

Last year's The Americas published an article by Christopher Woolley, "'The Forests Cannot be Commons': Spanish Law, Environmental Change, and New Spain's Council on Forests". The abstract:

This article examines the sylvan political ecology of late colonial New Spain and the colonial government's attempt to address deforestation through the Council on Forests, the first body in the kingdom's history dedicated to the conservation of natural resources. Drawing primarily from the corpus of documents produced by and remitted to the council, this article gives a trans-regional perspective on colonial forest use and argues that the Spanish crown's usurpation of indigenous communities' eminent domain over forests was the first step in a process that over centuries progressively severed the cultural ties that bound communities and forests by converting common-pool resources into open-access commons. The catastrophic mortality of the Spanish invasion was the second step, which rendered conservation measures seemingly unnecessary among both woodcutters and officials. But it was during the eighteenth century that older Habsburg notions of protectionism intersected with economic and political changes associated with Bourbon rule to further compel this cultural severance. While previous works have studied the ecological impacts of mining, ranching, and flood control, this article moves beyond the study of a single industry to suggest some of the larger ecological consequences of Spanish colonialism.

Forest in the Sierra Juarez, Oaxaca, Mexico (credit: Prsjl)

Thursday, March 18, 2021

Soviet water law

"And Defeat Drought", by Viktor Govorkov (1949)
Both Central Asian and Soviet water law are underexplored in the English-language literature, so I was excited when a friend recently pointed me to an article by Beatrice Penati in the Journal of the Economic and Social History of the Orient, "Continuities and Novelties in Early Soviet Law-Making about Central Asian Water". The article uncovers not only generally unknown histories of water law, but new jurisprudential angles as well. Instead of the abstract, here's an excerpt from the introduction (notes omitted):

The present essay explores the definition of the water rights and water-related obligations of the peasants vis-à-vis the Soviet State. On one level, this study highlights the very high degree of continuity in both personnel and goals between pre- and post-revolutionary “lawfare” in the field of Central Asian water rights and water usage. It also shows how, although Bolshevism offered a solid ideological justification for the supremacy of State rights, it was not easy for this personnel to codify the State-centric approach to water governance in the new Soviet context. As the reader will discover, this is more the story of attempts to regulate, than of effective regulation.

The close observation of these attempts reveals how, in the field of water rights, one could find examples of two opposing situations: a stratification of formal regulations none of which was considered as ultimately binding, and texts that bound even in the absence of a formal sanction. This begs a few further reflections: first, one can ask whether this disorder was deliberately used as a tool of Soviet power, as argued recently by Christian Teichmann, also writing about Soviet irrigation in Central Asia. Second, one must reconsider what made a law in the light of socialist legal theory, thereby nuancing the notion that socio-economic change (here, in the field of water rights) originated from State decisions.

By analysing systematically what inspired and stymied these attempts at the regulation of water, this essay contends that early Soviet “lawfare” about Central Asian water—especially efforts at systematic codification premised on the supremacy of State rights—was constrained by two factors. The first, in continuity with the colonial period, was the persistent idea that indigenous water systems were ultimately impenetrable to outside observers: due to their supposed “irrationality” and “primitiveness”, these systems had been (and still were) regarded as both economically inefficient and impossible to reform, to the point that concessions to “custom” had to be made even after the consolidation of Soviet rule. The second, new factor was the early Soviet de-colonisation imperative, understood here (following Georgii Safarov) as both liberation from the relics of settler colonialism and from those “exploitative elements” which Russian imperialism had supposedly nurtured. This ideological option marked a profound discontinuity with the Tsarist regime in Central Asia, by defining the perimeter of the experts’ legislative initiative. That this factor was ultimately decisive is shown, by contrast, by the fact that socio-economic realities in the field of water and land rights were reshaped more by revolutionary initiatives, than by systematic efforts to change water laws. Despite (or because of) the proliferation of texts, drafts, and commissions, effective transformation did not require more (or more careful) law-writing, but for the Soviets and Party to invest other power resources (e.g. propaganda, coercion, financial means) to achieve a degree of social mobilisation in favour of radical reforms.

For earlier Imperial Russian water law in Central Asia, see here

Sunday, March 14, 2021

Sustainability and the history of knowledge

The Journal for the History of Knowledge recently published an article by Sebastian Felten, "Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines". The abstract:

A late-eighteenth-century encounter between Dutch merchants and cameralist Saxon officials is used to argue two related points. First, the history of knowledge can help us rethink hierarchical power structures like the Saxon mining bureaucracy. Mine owners had a right to information and could not be forced to pay contributions, which meant that mining officials were solicitous in sharing knowledge, fretted about investors’ favor, and took their desire for revenue into consideration. These observations directly challenge the traditional absolutist image of the Saxon mining bureaucracy. Second, the history of knowledge can help explain how certain rationalities (that is, combinations of means, ends, and values) came into being. Saxon officials sought to situate short-term income and expense in a success story that spanned decades and centuries. Informed by the concept of Nachhalt (sustainability), Saxon officials saw profit even in mines that lost money. This kind of sustainability thinking is best explained via the archival practices of the mining bureaucracy: officials collected information from yield sheets and local lore in order to calculate long-term outputs, to speculate about untapped deposits, and to disburse as little profit as possible. When the Dutch eventually understood this rationality, they withdrew. Saxony’s early modern mining bureaucracy was dismantled by liberal reforms in 1850s, but its peculiar brand of sustainability, aiming to extract resources at almost all costs, likely survived the dawn of industrial capitalism as young engineers and administrators became versed in it at the Freiberg Mining Academy.

For a different take on the origins of German sustainability thought, see Peter Sand's post here

Star vaulting on the ground floor of the Saxon Mining Office, Freiberg
(photo: Norbert Kaiser)

Friday, March 12, 2021

The inevitable empire of nature?

The new journal LawArt. Rivista di Diritto, Arte, Storia / Journal of Law, Art and History just posted its first issue (as an aside, we've now counted 63 active legal history journals!), including an article by Nader Hakim, the English title of which is "A Legal Picture of Nature: Legal Discourse or the Aesthetics of Truth. An Example from the Heart of 19th Century France" (the article is in French). The crux of the article (with help from Google Translate, notes omitted):

Sculpture of Charles Demolombe,
Caen, c. 1910
Charles Demolombe (1804-1887), famous professor of civil law in Caen, Normandy, lets us see a picture in which nature holds a place that is significant and quite symptomatic of the legal discourse of his time. From the outset, in fact, the reader encounters nature very frequently when reading the famous Cours de Code Napoléon. Nature seems made up of "all that exists, not only the objects which can become the property of man, but even all that, in nature, escapes this exclusive appropriation." Nature is thus opposed to human activity, it forms the backdrop for actions or the landscape within which law is played out.

However, far from being an objective reference to the physical-chemical world alone, nature is mobilized to integrate into the discourse not only biological life or physical forces but also essences and values. It is then natural what the author, in this case Charles Demolombe in our example, declares as such. One might think that nature is this thing external to the human will and which is imposed on everyone, objectively, but it is not.

Of course, we meet this mysterious and irresistible force, this force majeure considered an "inevitable empire"* of nature. Of course, tangible or immovable property or even men and women have undeniable physical properties. Things and people, the objects of the jurist's discourse, indeed exist. In reality, we can easily see that the law and jurists choose from what is objectively “natural” or physical-chemical, that which they will qualify as “nature”. In a way, the law has the last word because it chooses among the constraints of nature those that it wants to admit and if necessary extend, and those that it simply ignores.

* In a note here Hakim cites from Demolombe (vol. X, no. 5) a passage on the law of alluvion that resonates with a recent paper of mine (for a collection edited by Hakim on "Nature as a Norm"...):

As if the rivers and rivers needed the permission of the legislator, to roll their waters according to the mysterious and irresistible movements which carry them along! As if this empire, or as we still say, this absolutism of running waters were not the work of nature itself, an inevitable empire, of which the legislator would seek in vain to dispossess them; whereas its only claim can be to regulate the consequences as equitably as possible. We must therefore recognize that there is a force majeure here, a force often capricious and undoubtedly blind, regarding which the laws cannot always right the wrongs or repair the injustices.

Monday, March 8, 2021

The U.S.–Japan dispute over the whaling moratorium

A recent issue of Diplomatic History published an article by Masaru Nishikawa, "The Origin of the U.S.–Japan Dispute over the Whaling Moratorium". The article begins (footnotes omitted):

On December 26, 2018, the administration of Japanese Prime Minister Shinzo Abe announced it would end its participation in the International Whaling Commission (IWC). While Japanese national parliamentarians who belonged to the pro-whaling caucus welcomed the decision to resume commercial whaling, the decision faced condemnation. For example, the New York Times noted that Japanese authorities ought to reconsider the decision as “[w]ithdrawing from the whaling commission for short-term political gain is a dangerous and foolish move, especially for an advanced country like Japan that has generally supported multilateral efforts on the environment.” Kumao Kaneko, a retired Japanese diplomat who had dealt with the whaling issue as a delegate to the United Nations Conference on the Human Environment (UNCHE) in 1972, regarded the decision with displeasure: “Japan has not learned anything from the shock it experienced at the UNCHE, which I still cannot forget.”


The conference... marked a crucial dividing point in the history of whaling. At the UNCHE, Recommendation 86 was proposed by the secretariat. Recommendation 86 called for all involved governments to strengthen the IWC, to increase international research efforts on whales, and an international agreement under the auspices of the IWC for a 10-year moratorium on commercial whaling. The United States, much to the consternation of Japan, would play a key role in moving Recommendation 86 forward.

Before 1970, whaling moratoria were not a matter of legal or legislative concern for the U.S. government. However, the Nixon administration “initiated and strongly supported” Recommendation 86 against vigorous opposition by whaling nations in 1972. Since then, the United States pursued a whaling moratorium, which aimed to encourage the remaining whaling nations—Norway, Iceland, the Soviet Union, and Japan—to outlaw commercial whaling.

Several policy scholars have argued that nascent environmental NGOs made the campaign against whaling a powerful symbol of modern environmentalism. Those scholars have further argued that the rise of an environmentalist consciousness among the American electorate in general, and the lobbying efforts of environmental NGOs in particular, produced the Nixon administration’s sudden strong support for the 1972 anti-whaling agenda. As the scholar Kurkpatrick Dorsey wrote, “Save the Whales!” became the rallying cry for environmentalists around the world. According to environmentalist rhetoric, whales were essentially humans, only perhaps slightly better. The Nixon administration, these environmental policy scholars argue, came to co-opt this powerful message.

Japanese journalists and pundits see things quite differently. They argue that the Nixon administration changed its policy for a very different reason: they point to a “conspiracy.” For instance, in a book titled (in translation) Whaling and Conspiracy, Yoshito Umezaki insists that Nixon’s dramatic turn toward the moratorium was in fact merely an effort to misdirect attention away from the United States’ own environmental sins—in particular its massive use of defoliants in Vietnam. Umezaki claims that the moratorium was a kind of cover-up that would serve to both keep the international community from pointing a finger at the United States, and its voters from recognizing Nixon’s environmental faults, thus helping Nixon to gain re-election in 1972. Umezaki concludes that Japan was used as a “scapegoat” by the Nixon administration. Japanese government officials, such as Kazuo Shima, an IWC commissioner from Japan, and others also support the conspiracy theory argument. Shima described the U.S. environmental groups as an “ecological cult” and the UNCHE as a well-planned form of “international bullying” of Japan. Shima believed that the United States was motivated by enmity and wariness against Japan when it proposed a moratorium. More directly, Shima argues that the moratorium led by the United States was simply another aspect of its campaign to attack Japan’s growing economic power. However, this author regards the conspiracy theory as basically untenable, as it contains many insufficiently substantiated claims.

Credit: Jeremy Sutton Hibbert

Friday, March 5, 2021

The polluter pays principle and policy transfer

I missed this one a while back: The European Review of History published Jan-Henrik Meyer's "Who should pay for pollution? The OECD, the European Communities and the emergence of environmental policy in the early 1970s". The abstract:

Environmental policy emerged as a new European and global policy field within a very brief period of time during the early 1970s. Notably in Europe, international organizations played a central role in defining core principles for this new policy domain. This article argues that inter-organizational connections were crucial in this context: the exchange and transfer of policy ideas facilitated the rise of environmental policy across different international organizations. Focusing on the co-evolution of the polluter-pays principle enshrined almost simultaneously both at the OECD and the European Communities, the article assesses the multiple routes along which policy ideas travelled, the role inter-organizational competition played and the selective nature of transfers. While expertise played a key role in determining which policy concepts were selected, institutional conditions and the politics of the recipient institution determined how they were adapted to the respective new context.

Tuesday, March 2, 2021

Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.


The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Sunday, February 28, 2021

Trends in commons scholarship

More on (transatlantic) commons scholarship: The editors of the International Journal of the Commons (Frank van Laerhoven, Michael Schoon, Sergio Villamayor-Tomas) just published an interesting quantitative review of commons scholarship over the last five decades, "Celebrating the 30th Anniversary of Ostrom’s Governing the Commons: Traditions and Trends in the Study of the Commons, Revisited". There are interesting statistics and tables on journals, citations, disciplines, and more. (For a different take on the history of the field, see The Tragedy of the Commons at 50.) Some highlights:

The start of commons scholarship can be understood as growing out of a rejection of Hardin’s prediction of natural resource degradation unless managed by governments or through private property rights (Poteete et al. 2010). Over time, however the approach appears to have been evolving.


Arguably, commons studies grew out of concerns associated with the tragedy of the commons. Accordingly, typical studies of the commons have been associated with local contexts, particularly with common pool resources such as forests, fisheries and irrigation, and an interest in the opportunities and challenges of common property rights and rules....

Hardin (1968) asked us to “picture a pasture, open to all.” Pastures, together with fisheries, forests, irrigation systems, and water management belong to what the authors of the 2007 study referred to as the “Big Five” in the study of the commons. Through 2007 these topics drew most of the combined attention of commons scholars. Overall, we find that this trend continues [unabated]. Over time, we see a relative increase in interest in water and fisheries since 2007.


Where Hardin claimed that only the state or the market could prevent a tragedy of the commons, Ostrom dedicated most of her career to showing how there is a lot of room on the spectrum that ranges between these two extremes (e.g. Ostrom, 1994). Figure 18 presents a crude way to gauge our field’s attention to the market, the state, and self-governance over time.

Tuesday, February 23, 2021

Juergensmeyer and transatlantic commons scholarship

We've written before (here and here) on Julian Juergensmeyer as an early scholar of environmental law in the United States. The Journal of Comparative Urban Law and Policy recently published a Festschrift in his honor, including an article by Becky Jacobs, "Professor Julian Conrad Juergensmeyer's 'Impact': Scholarly, Theoretical, and Practical". Jacobs notes the influence of Juergensmeyer's "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem" (co-authored with James Wadley), published in Natural Resources Journal in 1974. 

There's a deeper "Atlantic crossings" story here, too, one which I have yet to fully explore: The 1974 article was preceded by an earlier one by Juergensmeyer, with overlapping content and a similar title, "The Common Lands Concept in American Jurisprudence", published in a 1973 issue of the Belgian Revue De l'Institut De Sociologie. The special issue on "Les Terres Communes: Eléments d'approche historique et comparative" contained a series of articles by scholars on communal property in various legal systems: Scotch, Soviet, French, Belgian, African, and American. The other authors were all European, mostly from Brussels. 

Yet the origins of the issue were actually American. As Jacques Vanderlinden explained in his introduction (see below), the idea for the collection arose among the editors of the Boston University Law Review in 1970 (presumably when Vanderlinden was visiting BU), but subsequently dropped by the next editorial board. So the project moved to Brussels and took on a more European cast; Juergensmeyer must have been picked while he was studying in Europe in the early 1970s.