New institutional approaches to the commons have seen a proliferation of work in recent years that has overturned stereotypes of ‘tragedy’ and mismanagement. Much of this work remains centred, however, on the fortunes of individual commons and relates changes in management to local challenges and experiences. This article uses a large sample of by-laws from commons in south-western Germany to show how regulation has emerged as a complex historical process of imposition of rules by lordship, emulation of neighbours and response to crisis; it demonstrates that relying on the internal evidence of individual by-laws can be quite misleading about the circumstances of their creation. The article argues that a major stimulus to by-law recording was intra-communal conflict, and, as the results of negotiated resolution of these disputes, we should be cautious of reading by-laws as records of ecological optimisation rather than attempts to resolve conflicts over the allocation of resources.In addition to his interesting exploration of the material (focusing on wood) and an argument about the impulse behind these commons by-laws (about which see below), Warde provides a sensitive and valuable methodological discussion, valuable for environmental historians using legal texts as sources. For instance:
State regulation at a higher level created different contexts for regulation, commanding village communes to introduce new types of regulation, or subsuming old customary practices to new territorywide statutes, especially in the eighteenth century. If a matter is legislated for at district or state levels, then villagers may have no reason or right to pass by-laws on the issue themselves. Thus the absence or disappearance of an issue from village by-laws may not necessarily reflect what was of importance to the villagers.He also has an interesting discussion of who was behind the enactment of the ordinances, pointing out that the veracity of preambles attributing authorship of the laws to local communes is called into question by the identical texts of several of these laws, which he argues must have been largely dictated by the lords.
As to why these commons by-laws were enacted, Warde argues that the impulse was less ensuring the sustainability of resource use than regulating interpersonal conflicts over allocation. As a lawyer this seems obvious to me, since law is almost always about social relations, and sustainability is generally a function of the relationships between users, but maybe the point could be put a little differently: It seems the by-laws were interested less in maximizing aggregate benefit from the resource than in the question of how those benefits would be distributed between people. (This just happens to mesh with the argument in my book on the history of water law in the western US.)