EP Thompson on (forest) law in history

Kurt Newman at US Intellectual History Blog had an interesting post the other day on the place of legal history in the thought of Marxist historian EP Thompson. The post includes a long quote from Thompson's Whigs and Hunters (1975), arguing that law (here, specifically the early eighteenth century English law against commoners' traditional uses of the forests) functioned as more than just a mystifying tool of (upper-)class power. Some selections:

To be sure, I have tried to show, in the evolution of the Black Act, an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status; this oligarchy employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to do. But this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none.

What was often at issue was not property, supported by law, against no-property; It was alternative definitions of property-rights: for the landowner, enclosure; for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters, the right to take turfs. For as long as it remained possible, the ruled––if they could find a purse and a lawyer––would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case.

When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means. Moreover, if we look closely into such an agrarian context, the distinction between law, on the one hand, conceived of as an element of ‘superstructure,’ and the actualities of productive forces and relations on the other hand, becomes more and more untenable.

For law was often a definition of actual agrarian practice, as it had been pursued ‘time out of mind.’ How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law…

...people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig.

Yellow fever control in colonial Senegal

The latest issue of the Journal of Colonialism and Colonial History has an article by Christian Strother, "'A Danger Which More or Less Threatens Us All': Yellow fever and the politics of disease control in Senegal 1890–1914". The abstract:

Prior to 1900, the colony of Senegal had suffered from periodic epidemics of yellow fever. In an attempt to combat the disease, the government of Senegal began to enact new legislation to prevent the spread of epidemics. The government hoped that these new laws would allow them to control yellow fever epidemics without hurting the economic viability of the colony, but they found that the new laws created new challenges. Within the first decade of the passage of the new legislation a series of formal complaints and court cases would challenge sanitation laws and test the limits of government authority.

School of Medicine and Chemistry inaugurated in Dakar in 1918 (ASNOM)

Environmental law and policy in Brazil (1930-1945)

[Today we have a guest post from Frederico Freitas, a Ph.D. Candidate in Latin American History at Stanford, who recently presented a paper at the World Congress of Environmental History on environmental law during the Vargas regime:]

Ranger of the newly created Forest Service, c. 1944
(O Serviço Florestal no Biênio 1943-1944
(Rio de Janeiro: Ministry of Agriculture, 1945))

Brazil during the first Getúlio Vargas regime (1930-1945) produced a boom in conservationist legislation that included a forest code, a new water law, the creation of the country's first national parks, and the establishment of a forest agency and a national institute of forestry. The move by the Vargas regime to implement a conservationist agenda was unprecedented—apart from the establishment of botanical gardens and a few protected semi-urban forests around Rio de Janeiro, previous governments had never acted to establish a conservation program. The change brought by Vargas had its root in a new phenomenon—the appearance on the Brazilian national stage of a cadre of conservationists who were able to align US- and Europe-born ideas of conservation of nature with a nationalist discourse akin to the one put forward by Vargas’s ideologues.

Yet, all the energy invested in environmental legislation failed to change the previous pattern of lack of state commitment to environmental issues. In fact, the new legislation concealed a reality of chronic lack of federal control over both public and private land. Brazil had a long tradition of what historian José Drummond called a “weak hand in controlling the use of associated resources and features, such as soils, ores, water, coasts, flora, and fauna.” After the fall of the Brazilian monarchy and the promulgation of the Republican constitution of 1891, all public land, which had been in control of the Brazilian state in the nineteenth century, was then turned to the hand of state governments. In the Vargas years the Brazilian federal government had almost no public land left to manage besides a handful of federal and military properties and the land alongside railroads. 

In the 1930s the federal government not only did not control most of Brazil’s public land but also had no legal instrument to expropriate private land. It was only in 1941 that the central government issued a decree-law granting itself the powers to expropriate land for public interest. This new legislation allowed the federal government to expropriate both private land and public land owned by state or municipal governments. However, it failed to trigger an era of federal intervention in land issues. The regime of Getúlio Vargas, despite being turned into a fascist-leaning dictatorship after 1937, lacked the power to curb the interest of the local agrarian elites.

The Versailles Conference: upcoming deadlines

The deadline for the American Society for Environmental History 2015 conference in Washington DC (March 2015) has been extended till July 31. The theme, "Turning Protest Into Policy: Environmental Values and Governance in Changing Societies", seems particularly appropriate for legal-themed papers and panels.

The British Legal History Conference 2015 (Reading, July 2015) has a call for papers out; the themes is "Law: Challenges to Authority and the Recognition of Rights". Paper proposals are due September 30.

The European Society for Environmental History's biennial conference will be held in Versailles in June-July 2015. This conference, too, seems particularly welcoming for law-related work, as the call for proposals says, "Through an emphasis on disciplines, methods, and questions, we hope to encourage dialogue with all types of history, other humanities and social sciences, and the natural sciences." Submissions are due by October 1.

Feel free to use the Environment, Law, and History listserve to find potential panelists with similar interests!

Attendees at an earlier conference at Versailles

Evolution and environmental law

Jotwell recently posted "A Legal Beagle's Voyage", Steve Gold's review of Nicholas A. Robinson, "Evolved Norms: A Canon for the Anthropocene", in Rule of Law for Nature (Christina Voigt ed., Cambridge UP, 2013). Robinson, Gold tells us, observes that "the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law."

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.

Gold is somewhat skeptical:

Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.

Wilderness management agencies

Two articles from Environmental Law's latest issue each compare the performance of two US federal agencies tasked with protecting wilderness, examining, among other factors, the legal and institutional history of the agencies.

Robert Glicksman's "Wilderness Management by the Multiple Use Agencies: What Makes the Forest Service and the Bureau of Land Management Different?" explains (461, notes omitted):

a commitment to preservation of wild lands is deeply rooted in the Forest Service’s history. The utilitarian philosophy to which Gifford Pinchot, the first Chief of the Forest Service, was committed “was basically antithetical to the views of John Muir and other wilderness advocates.” Soon after Pinchot’s departure in 1910, however, interest within the agency in preserving national forest lands surfaced, and agency scientists in the ensuing two decades criticized the significant expansion of the national forest road system, calling for permanent protection of wilderness regions of the forests. In 1919, Arthur Carhart, a landscape architect employed by the Forest Service, persuaded the agency’s office in Denver to halt development that threatened the scenic beauty of Trapper Lake in the White River National Forest. During the 1920s, Carhart and another Forest Service employee, Aldo Leopold, began pressing for the creation of national forest wilderness areas. In 1924, the Forest Service established the Gila Primitive Area, “the first formally protected wilderness in the United States, perhaps in the world,” and the establishment of five more such areas followed shortly thereafter.

Regulations in the 1920s and '30s led to the designation of over 9 million acres of wilderness by the forest service before the adoption of the Wilderness Act in 1964. The BLM, on the other hand, followed a different path (462):

Until Congress enacted the BLM’s organic act, FLPMA, in 1976, the agency’s traditional mission involved transferring land to private interests and facilitating resource extraction. As Michael Blumm explained, “Congress considered BLM lands temporary public lands—soon to be sold or granted to private owners. Thus, designating wilderness on BLM lands made little sense until the federal policy of disposition changed.” It was not until FLPMA’s adoption that Congress settled on a policy that “the public lands be retained in Federal ownership” and that those lands “be managed in a manner that will protect the quality of scenic, scientific, historical, ecological, [and] environmental . . . values,” and “that, where appropriate will preserve and protect certain public lands in their natural condition. . . .”

Sandy Zellmer's "Wilderness Management in National Parks and Wildlife Refuges" deals with National Park Service (NPS) and Fish and Wildlife Service (FWS), neither of which have been particularly supportive of wilderness protection (508-9):

More on early modern water law treatises

In response to my desire to hear more about the water law treatises described in Mark Weiner's video, "Water, Paper, Law", Yale Law's Rare Book Librarian Mike Widener (featured in the video) has posted information on the books featured in the video. These include a treatise by the great medieval jurist Bartolus and other works on Italian, German, and Dutch water law.

The page below is taken from a 4-volume Italian treatise on Roman water law, published originally 1670-86. Stay tuned for more on Mike's work on these interesting books.

from Francesco Maria Pecchio, Tractatus de aquaeductu (2nd ed., Ticini Regii, [1700?]-1713)
Rare Book Collection, Lillian Goldman Law Library, Yale Law School

Planning for public lands

Robin Kundis Craig has posted "An Historical Look at Planning for the Federal Public Lands: Adding Marine Spatial Planning Offshore". Though the article's focus is on marine spatial planning (the marine equivalent of land-use planning) in the present, it opens with a historical survey of US law dealing with planning on federal lands: the Classification and Multiple Use Act (1964) and Federal Land Policy and Management Act of 1976 for Bureau of Land Management lands; and the Multiple Use Sustained Yield Act of 1960, the Forest and Rangeland Renewable Resources Planning Act of 1974, and the National Forest Management Act of 1976 for National Forests.

Triggering planned avalanches, Gallatin National Forest, 1970.
(Ross McPherson, Forest Service Photo Collection, National Agricultural Library.
Courtesy Forest History Society)

Borderland smelter pollution

Legal action over transboundary pollution from copper smelters has a long history; think of Georgia v. Tennessee Copper Co. or the Trail Smelter Arbitration. It seems it also has a recent history. Environmental History recently noted a 2013 dissertation by Stephanie Capaldo, "Smoke and Mirrors: Smelter Pollution and the Cultural Construction of Environmental Narratives on the U.S.-Mexico Border, 1970-1988". The abstract:

Working at the nexus of environmental, cultural, and Borderlands history, my research, "Smoke and Mirrors: Smelter Pollution and the Cultural Construction of Environmental Narratives in the U.S.-Mexico Borderlands," follows the evolving late 20th-century debates over transnational smelter pollution in southern Arizona and northern Sonora, Mexico. The region has pivoted around copper mining since the late 19th century and by the mid-1900s, the transnational copper industry, concentrated in Douglas, Arizona, and Cananea and Nacozari, Sonora, coupled with the prevalence of maquiladoras in Agua Prieta, produced a severe air pollution problem. In reaction to environmental damage and public health problems, concerned citizens on both sides of the border organized to legally enforce existing environmental regulations and improve local conditions. The ensuing struggle over local air quality in the small towns of Douglas, Cananea, and Nacozari--coined the "Gray Triangle"--quickly escalated to national environmental and economic conversations, and resulted in international cooperation and legislation.

courtesy Pomona Public Library - The Frasher Foto Postcard Collection

Revisionist English nuisance law history: Part 2

[by Ben Pontin]

As explained in Part One, interpretations of English nuisance law’s contribution to environmental protection during the industrial revolution are changing. That is to say, increasing attention is being given to those instances where victims of industrial nuisance obtained remedies from the courts. Previously, emphasis had been placed on the doctrinal (notably in Joel Brenner’s account) and institutional limitations (in John McLaren’s) of victims of industrial nuisance obtaining a remedy. One of the turning points has been the close study of Adderley’s action against Birmingham Corporation in 1858 (the ‘Great Birmingham Sewage Case’), discussed in my book Nuisance Law and Environmental Protection.

In order to make sense of Adderley’s (and nuisance law’s) achievements – and why they do not fit within the traditional account of nuisance law failure – it is necessary to embrace a level of complexity in the social and economic backdrop of nineteenth century nuisance law that is lacking in the earliest leading studies of this subject. Thus, whereas Victorian Britain in Brenner’s account is characterised as dominated by urban and manufacturing interests in the face of which the courts daren’t say ‘no’ (McLaren is more nuanced), Adderley’s case suggests a power structure far more sympathetic to the plaintiff than hitherto contemplated by historians in this field. A power structure, that is, in which the landed aristocracy spun a persuasive enough (at the time) narrative of noble, honourable and authoritative resistance to the materialist excesses of industrialisation.

Revisionist English nuisance law history: Part 1

[The first in a series of posts by Ben Pontin:]

English nuisance law is a tort to land that has attracted considerable – some would say disproportionate - interest within circles of environmental law history. In Coventry v Lawrence [2014] UKSC 13 (at [176]), Lord Carnwath commented on part of my contribution to the field as follows:

Ben Pontin in his valuable recent book Nuisance Law and Environmental Protection (2013) shows how since the middle of the 19th Century common law nuisance has played an important complementary role to regulatory controls, on the one hand stimulating industry to find better technical solutions to environmental problems, and, on the other, stimulating the legislature to fill gaps in the regulatory system. He sees the present appeal as an important opportunity for the Supreme Court to review the proper role of this part of the law of nuisance in the modern world. (p 184)

Coventry concerned the relationship between nuisance law and regulation, which is a topic that has been central to nuisance law history since the pioneering studies of Joel Brenner and John McLaren in the 1970s and 80s.

Brenner and McLaren argue in different ways to the conclusion that effective legal remedies for revolutionary pollution awaited statutory regulation later in the nineteenth century. Prior reliance on nuisance law, as it had evolved since antiquity, substantially (so the argument goes) failed to remedy industrialisation’s legendary ‘monster nuisances’. The explanation for nuisance law’s weakness provided by Brenner lies with courts moving away from ‘pre-industrial’ strict liability to favour the ‘wealth generating polluter’ in their disputes with neighbours seeking to protect their property and its amenity (Brenner, ‘Nuisance Law and the Industrial Revolution’ (1974) Journal of Legal Studies 403). McLaren’s explanation differs in its focus on litigation costs and similar ‘institutional’ limits of nuisance law in the face of the vast scale of industrial pollution (McLaren, ‘Nuisance Law and the Industrial Revolution – Some Lessons from Social History’ (1983) Oxford Journal of Legal Studies 155).

The Chancery Court claim in
AG v Birmingham

By contrast, my book offers a revised portrayal of nuisance law, as a success. It does so with reference to a small selection of in-depth case studies of specific instances of industrial nuisance litigation, beginning with Attorney General v Birmingham Corporation (1858) 4 K & J 528. Contextual records relating to the litigation underpinning this case reveal some intriguing events, and ultimately a remarkable practical achievement. Over the course of forty years of litigation, affecting hundreds of thousands of people, involving tens of millions of pounds of investment (on today’s currency calculation), the enjoined municipal defendant invented and adopted a sewage purification technology that satisfied the plaintiff (Sir Charles Bowyer Adderley) and led to the injunction’s lifting. The case inspired others to litigate sewage pollution, and thus it is understandable that Lord Robert Carnwath (again) in a recent article refers to the ‘Great Birmingham Sewage Case’ (in ‘Judges and the Common Laws of the Environment – at Home and Abroad’ (2014) Journal of Environmental Law doi: 10.1093/jel/equ009).

‘Great’ litigation in this and other fields of industrial pollution cannot be divorced from its complex social and economic backdrop, characterised by a territorial elite under threat from capitalism reinventing itself as a the nation’s guardian of ‘Nature’s treasures’. How gothic revivalism shaped nuisance law’s achievements is the subject of a blog to follow.

Water law and conflict in Mandate Palestine

As missiles fly overhead, I thought I'd post on something relevant to what's happening in my corner of the world. Though I'm not a big believer in the thesis that competition over water is at the root of conflict in the Middle East (while it's a popular theme in the press, academics have repeatedly debunked it), the converse is probably true: conflict in the region almost certainly exacerbates water problems in this relatively arid environment.

I recently published "Water law in British-ruled Palestine", which outlines the basic shape of legal conflict over water in Palestine in the years in which it was under British rule (1917-1948) (an ungated version is here). The abstract:

 This article surveys the water law of Palestine under British rule, identifying the legal norms governing the use of water and explaining some of the factors shaping the development of this area of the law. It argues that despite their lack of official lawmaking power, Arabs and Jews succeeded in decisively shaping the course taken by water law in this period. After surveying the Ottoman water law in force when the British took power in 1917, the article examines influential court decisions in a case brought by the Arab residents of the village Artas against government expropriation of water, and explains the significance of this litigation for the subsequent development of Palestine’s water law. It then discusses British initiatives meant to reform water law and subject the country’s water to state control, plans frustrated by the opposition of Zionist groups fearful of increased government regulation. It closes by noting that water law was made in this colonial context neither by imposition from above nor by resistance from below, but by intervention of subject peoples at the highest levels of official lawmaking.

Jewish National Fund poster of the water tower, a Zionist icon

Rural conservation in China

More contemporary history, this time from China. The Journal of Peasant Studies last year published Emily Yeh's "The politics of conservation in contemporary rural China". The abstract:

Placing conservation within a broad framework of agrarian and environmental politics, this review article argues that natural resource governance is fundamental to rural politics in China. Much of the environmental literature adopts a technocratic approach, ignoring the political nature of the redistribution of access to and control over natural resources, and of knowledge vis-à-vis degradation. Reading the managerial literature with and against the grain of political ecological studies, the essay reviews contemporary environmental issues including Payments for Ecosystem Services and other market-based approaches, the establishment of national parks and resettlement schemes justified through ecological rationales. The first section following the introduction focuses on two of the largest forest rehabilitation schemes in the world. Next, the paper reviews work on China's rapidly growing number of nature reserves, examining their role as enclosures and their entanglement with tourism income generation. This is followed by a discussion of research on the politics of rangeland degradation and property rights. The inclusion of pastoralism within the scope of rural politics is sometimes obscured by the fact that China's extensive rangelands coincide almost completely with its minority populations. The misrecognition of rural politics over resources and the environment as ethnic politics is addressed in the concluding section.

Three Parallel Rivers of Yunnan Protected Areas (CCTV.com)

Interest groups and environmental policy

Last year's Political Studies published an article by Andrew Cheon and Johannes Urpelainen, "How do Competing Interest Groups Influence Environmental Policy? The Case of Renewable Electricity in Industrialized Democracies, 1989–2007". The abstract:

In this article, we examine the effect of competing interest groups on environmental policy. We argue that the supporters of environmental policy should be the most influential in the absence of opposition, while the opposition's importance is maximized when the supporter coalition is strong. This highlights an important asymmetry between competing interest groups: supporters are decisive in the absence of opposition, while the opposition is only relevant if the supporters are already strong. We test the argument against data on renewable electricity generation in nineteen OECD countries, 1989–2007. Heavy industries have particularly strong incentives to oppose policies that support renewables, because heavy industries’ profitability depends on inexpensive electricity. We find that the supporter coalition has a positive effect on the growth of renewable electricity generation, but the positive effect diminishes with the strength of manufacturing. Moreover, heavy industry has a negative effect on the growth of renewable electricity generation and this effect increases with the strength of the supporter coalition.

Not very surprising conclusions.

Enlightenment's frontier

Land tenure and the environment in Scotland seems to be a live topic in which sensitivity to environmental issues is informing legal and intellectual history and vice versa. April's Environmental History had a review by Peter Hansen of Fredrik Albritton Jonsson's Enlightenment's Frontier: The Scottish Highlands and the Origins of Environmentalism (Yale UP, 2013). Hansen writes:

After the defeat of the Jacobite rebellion in 1745–46, land clearances in the Highlands uprooted residents in a region said to possess cornucopian abundance but excess population. The resulting long-term forced migration and agrarian transformation was shaped by ideologies of improvement that did not always mean replacing people with sheep. Surveyors, tourists, and naturalists visited the Highlands and made Linnaean surveys. The influence of a civil cameralism imported from Europe's northern fringe or landlocked provinces also shaped proposals for commercial-botanical projects to attain agricultural self-sufficiency. Voluntary associations such as the Highland Society or British Fisheries Society debated projects to create fishing villages or import crops that would acclimatize to Scotland's soil and climate. Such projects met with mixed success but often concentrated tenants in small-scale holdings. Thus the distinctive crofting form of land tenure in the Highlands was not an inevitable response to overpopulation but the consequence of specific intellectual debates over improvement during the Scottish Enlightenment.

Early modern water law treatises

Mark Weiner's Worlds of Law has a new video, Water, Paper, Law, in which some early modern treatises on water law held by Yale Law Library, especially Giuseppe Carmagnola's Trattato Delle Alluvioni (Turin, 1793) spur meditations on law, books, and water. I'd love to hear more about these works!

(courtesy Yale Law Library)

The Yosemite Grant Act

Holly Doremus at Legal Planet reminds us that last week was the 150th anniversary of the signing of the Yosemite Grant Act.

Doremus writes that the law was

one of the first tangible expressions of the national park impulse. The Act granted Yosemite Valley and the Mariposa Grove of giant sequoias to the state of California on the condition that they be held forever “for public use, resort, and recreation.” The idea behind the grant, of course, was that some parts of the public domain should not be turned over to private profit or monopoly, but rather should be available to all and preserved for the public benefit. In 1905 California receded Yosemite Valley to the United States, and it became the heart of a much larger national park which today is one of the icons of the national park system.

Welcome, Ben Pontin

We're happy to announce that the blog will be hosting a series of posts by Ben Pontin, of the University of the West of England, Bristol. Ben is the author of Nuisance Law and Environmental Protection: An Analysis of the Enforcement of Injunctions (Lawtext 2013), as well as numerous articles on environmental law in Victorian Britain, including:

• "Environmental Law Making Public Opinion in Victorian Britain: the Cross-currents of Bentham’s and Coleridge’s Ideas", (2014) Oxford Journal of Legal Studies 1-33
• "The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements", (2013) 40 Journal of Law and Society 173-198
• "Nuisance Law and the Industrial Revolution: A Reinterpretation of Doctrine and Institutional Competence", (2012) 75 Modern Law Review 1010-1036
• "Integrated Pollution Control in Victorian Britain: Rethinking Progress within the History of Environmental Law", (2007) 19 (2) Journal of Environmental Law 173-199

Environmental law textbooks tend to start off by explaining modern environmental legislation as a response to the failure of nuisance law to effectively control pollution. Ben will be posting here on his revisionist view of nuisance law's historical achievements.

Environmental regulation in the Australian goldfields

The latest Environment and History has an article by Susan Lawrence and Peter Davies, "The Sludge Question: The Regulation of Mine Tailings in Nineteenth-Century Victoria".

Washing sludge in a timber race, Mitta Mitta, c. 1896
(SML Corporation)

The abstract:

Mining waste was a significant environmental problem in nineteenth-century Victoria, an Australian colony dependent on gold mining for its economic prosperity. Sludge from alluvial (placer) workings and hard-rock mining flowed into rivers across the colony causing significant damage and disruption to downstream communities. The sludge problem was eventually resolved by the passage of legislation early in the twentieth century. The struggle to control sludge reveals changes in public perception over a fifty-year period, from acceptance of sludge as an inevitable consequence of industry to the identification of sludge as pollution that should be eliminated. Significantly, at a time when the cost of dealing with noxious waste from other industries was still being borne by the public purse, the anti-sludge legislation held the mining industry responsible for its own pollution and required gold miners to return clean water to river systems.

The article is one in a series by the authors on environmental aspects of the Australian gold fields.