Monday, August 31, 2015

Coming into the Anthropocene

A few months ago we noted Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014).

Jed Purdy's forthcoming (Harvard Law Review"Coming into the Anthropocene" is a thoughtful review essay of the book, recently posted. The abstract:
This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and highly contested regulatory and judicial interpretation. This analysis, however, does not limit the interest of Cannon’s analysis to this political moment. Rather, Cannon’s integration of legal and cultural analysis has great promise for the Anthropocene, the dawning era when human decisions and values will be among the most important forces shaping the planet. In the future, it will be necessary to think of environmental law as both reflecting and producing ideas of the value and meaning of the natural world. Cannon’s analysis is an excellent starting point for an Anthropocene approach. 
The beach lots at issue in Lucas v SC Coastal Council, the salient case in
which the Supreme Court used Property to limit environmental regulation
(courtesy of William Fischel)
More on the book here.

Sunday, August 30, 2015

Competing heritages of international environmental law

Caspar David Friedrich, The Sea of Ice (1823–24)

It seems a group of scholars based in Britain is doing interesting work on the history of international environmental law. A paper by Stephen Humphreys and Yoriko Otomo, "Theorising International Environmental Law", puts forward a thesis about the historical tensions operating in international environmental law. The abstract:
This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

Saturday, August 29, 2015

Welfare states and environmental states

Erling Nielsen, "The Norwegian Labour Party" (1930) (Thornews)

While political science looks at the past a little differently than does the discipline of history, it can pose theories that can be helpful for structuring or motivating historical inquiry.

Environmental Politics recently published an article by Ian Gough, "Welfare states and environmental states: a comparative analysis", that asks about the correlation between the development of the welfare state and "the environmental state". The abstract:
A framework is presented for thinking about state intervention in developed capitalist economies in two domains: social policy and environmental policy (and, within that, climate-change policy). Five drivers of welfare state development are identified, the ‘five Is’ of Industrialisation: Interests, Institutions, Ideas/Ideologies, and International Influences. Research applying this framework to the postwar development of welfare states in the OECD is summarised, distinguishing two periods: up to 1980, and from 1980 to 2008. How far this framework can contribute to understanding the rise and differential patterns of environmental governance and intervention across advanced capitalist states since 1970 is explored, before briefly comparing and contrasting the determinants of welfare states and environmental states, identifying common drivers in both domains and regime-specific drivers in each. The same framework is then applied to developments since 2008 and into the near future, sketching two potential configurations and speculating on the conditions for closer, more integrated ‘eco-welfare states’.
The article finds that the two issues actually react differently to the "five Is":
A broad-brush conclusion might be the following. Common drivers of changes in welfare states and environmental states include globalisation and internationalisation, the rising power of capital and business over other classes, and the continuing dominance of neo-liberal ideas. Neo-liberalism is a block to progress in both domains, but the other factors operate in different ways in the two domains. International economic and political linkages favour the environmental state but weaken the welfare state. Business power promotes inequality and weakens welfare and, in many countries, blocks climate-mitigation programmes; but its impact on the environmental state depends on the balance of carboniferous and Green business interests.
On the other hand, institutions and ideas continue to explain cross-national differences in both domains. Deep institutional differences persist across the advanced capitalist countries reflecting welfare regimes and varieties of capitalism. These, interacting with different power and ideational constellations, continue to drive different policy outputs in both spheres of state activity with contrasting social and environmental outcomes. Broadly speaking, these demarcate the Anglosphere from the EU.

Tuesday, August 25, 2015

Evergreen nuisance

Nuisance seems to be enjoying something of an academic renaissance. Lynda Margaret Collins recently posted "Evergreen? The Environmental Law of Torts", published in the Tort Law Review. The abstract:
The law of toxic torts – those arising from toxic pollution and products – has often been viewed as an application of old doctrine to new problems. While it is true that tort law existed long before the widespread dissemination of toxic chemicals, the common law of nuisance has, since its inception, protected a range of environmental rights and interests. This article will argue that the law of nuisance is a species of environmental law, has always functioned as a form of environmental regulation, and ought to be applied and interpreted as such in the modern era.

Sunday, August 23, 2015

A usable past for commoners

We just love histories of history. Reviews in History recently carried a review by Brodie Waddell of Andy Wood's The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge UP, 2013). Waddell writes:
Much of the book revolves around common rights and agrarian custom. As Wood shows, a ‘usable past’ was absolutely central to the economic lives of the vast majority of the population who lived and worked on the land as tenants or smallholders. Their subsistence was often dependent upon precise – if occasionally selective – memories of customary rights to grazing, fuel and other resources. In 1570, for example, the tenants of Cockermouth were satisfied because ‘albeit their Fermeholds were small the Comons were great’ (p. 158). Yet, in most cases villagers only had access to such ‘Comons’ because they could prove that they had used them for ‘time out of mind’ and, according to Wood, their ability to deploy this ‘useable past’ changed substantially between the 14th and 19th centuries. The aftermath of the Black Death left the English peasantry in a strong position with landlords desperately needed tenants and labour. It was in this period, he argues, that the peasants won the indulgences that would soon, through the power of ‘social memory’, be transmuted into ‘customs’ and thus into rights or entitlements. In the early modern period, tenants defended these customs assiduously through increasingly sophisticated use of documentary evidence and the law courts. However, Wood also demonstrates how customs that favoured the tenantry were under attack. Lords sought to harness rents to inflation and seize exclusive control of common lands. In the wider culture, this manifested itself as a forceful discourse of ‘improvement’. Similarly, Wood suggests there was a hostility to custom amongst godly humanists. Thomas More, for example, who is often quoted as a defender of the commons against the lords’ man-eating sheep but who was typical of many humanists in criticizing those who justified a practice by citing its antiquity (p. 123). Worse still, in the 17th century, gentry attitudes were ‘hardening’ even further and there was an apparently ‘decisive shift’ against custom and against commoners in the central law courts (pp. 126, 160). The power of popular memory was being eroded. According to Wood’s chronology, it was in the late 18th century that the final break came. Enlightenment ideology and capitalist demands for labour discipline led to an ‘epochal shift’ towards a ‘new order’ in which custom had no authority (pp. 314, 350-2). However, even then the memory of the people was not extinguished. In the 19th century, as Wood acknowledges, common rights remained important for many working-class families and a strong sense of the past informed radical agrarian politics. The chronology presented in this book is thus careful and nuanced, even if the overarching narrative is one of struggle and loss.

Thursday, August 20, 2015

The American abortion battle and the environment

Over at Legal History Blog, Mary Ziegler has been blogging about her new book, After Roe
The Lost History of the Abortion Debate (Harvard UP, 2015). Earlier this week she posted on "Population Control, Immigration, and Environmentalism"; here's an excerpt:
In After Roe, the population controllers’ story illuminates the changing relationship between the movements for legal abortion and women’s liberation. From the beginning, women played a crucial role in demanding legal access to abortion. Just the same, the early movement for abortion rights often shied away from women’s-rights arguments, and the relationship between the two movements was often rocky. At a time when women’s liberation remained controversial and women struggled for respect in the workplace, movement pragmatists believed that they would get results faster if they could convince voters and judges that legalizing abortion would have other desirable effects. Arguing that women had a right to abortion said nothing about how everyone else would benefit from legalization. By sometimes focusing on lower welfare costs, environmental benefits and reduced illegitimacy rates, movement members hoped to reach a larger audience.
All of that changed when the population-control movement found itself buried in scandal in the later 1970s. Sterilization abuse at home and abroad persuaded many observers that population policies were irrevocably racist and coercive. As population control became more controversial, feminists gained new influence in what would become the pro-choice movement. Population controllers also began staying away from the abortion issue, seeing it as another controversy that they could ill afford.
It seems that the implosion of population control had ramifications beyond the issues of abortion and family planning. In the 1970s, leading population organizations often advocated for abortion and family planning, environmental protection, and immigration limits. By contrast, organizations that lobby today for immigration limits, like NumbersUSA and the Federation for American Immigration Reform (FAIR), almost never discuss environmental issues. Conversely, groups like the Sierra Club consistently avoid arguments about the environmental damage some tie to overpopulation.

Tuesday, August 18, 2015

Howard Zahniser again

Another review (see also here) of The Wilderness Writings of Howard Zahniser, edited by Mark Harvey (Univeristy of Washington Press, 2014), this time by Michael Kraft in Environmental History. Kraft writes:
The Wilderness Act that established the National Wilderness Preservation System owes much to Zahniser’s organizational and political skills and his remarkable persistence in drafting a series of bills and building sufficient public and political support to survive the legislative gauntlet. Efforts on behalf of the legislation began seriously in 1956, following a successful movement to halt the Echo Park Dam project. In that year, the Wilderness Society proposed the first bill introduced in Congress to create national wilderness areas. In all, members of Congress introduced some sixty-five bills on wilderness areas in the eight years from 1956 through 1964, and they held more than a dozen hearings on the proposals, both in Washington and around the nation. Those hearings generated some sixteen thousand pages of testimony.
The core idea behind this legislation was to develop a coherent national framework for identifying and preserving wilderness areas rather than to persist with a case-by-case reactive battle over particular tracts of land facing imminent threat of development. As admirable as that goal is, inevitably the legislation sparked intense opposition from economic sectors that sought to maintain full access to nearly all public lands. 
(from Denver Public Library)
 According to the Wilderness Society, even as his health was failing, Zahniser tirelessly rewrote many drafts of the Wilderness Act, and he was instrumental in moving the bill along throughout the hearings and legislative deliberations. His writing and his keen political skills helped to overcome efforts to defeat the bill or severely limit its reach that came from timber, mining, and ranching interests, and from a growing outdoor recreation industry that sought greater use of public lands for recreation.
Zahniser died just months before the wilderness bill was signed into law by President Lyndon Johnson in September 1964. With initial protection extended to 9 million acres of public lands, the act now protects over 109 million acres of wilderness. Moreover, its success in Congress set the stage for one of the most productive periods ever for environmental legislation. That ran from the late 1960s through the 1970s when Congress approved nearly all of the nation’s major laws on environmental protection and natural resource conservation. 

Sunday, August 16, 2015

More on Cecil the lion

In last week's post on Cecil I didn't have time to do much more than copy an extract from the NY Times piece, but I think it's also worth trying to unpack the argument made or echoed in the story that "hunting... is part of a complex economy that has so far proven to be the most effective method of conservation".

One argument seems to be that demand for hunting gives government preserves a lucrative source of income, which they can use for conservation:
While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.
But that's not really an argument for hunting, that's an argument for letting parks sell "excess" animals to those willing to pay for them; not only hunters, but ivory collectors, medicine preparers, zoos, or whomever.

Another argument seems to be that private, for-profit management is better at conserving land and species than government conservation:
In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.
It's not clear what the connection between hunting and restoration is here, other than providing an incentive to private ranch owners to restore land and species so they can make money from hunting. Surely government could do the same, without the financial incentive.

In a strange twist, the article then says:
Representative Absalom Willis Robertson of Virginia
A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, [conservationists] argue.
The "proceeds of hunting" allocated by the Pittman-Robertson Act (the Wildlife Restoration Act of 1937) to habitat restoration are actually the proceeds of an excise tax on firearms and ammunition. Now, while it may be true that hunting makes such a tax more palatable from a political point of view, there is no inherent connection between government spending tax money on conservation and hunting.

There are, of course, other conservation arguments for allowing hunting, including keeping populations in check to prevent habitat degradation and giving local populations a financial incentive to preserve wildlife and their habitat. But I find the arguments cited in the newspaper article wanting.

Thursday, August 13, 2015

Cecil the lion and legal history

The furor that has arisen around the killing of "Cecil" the black-maned lion has some asking whether restrictions on trophy hunting would do more harm than good. According to a New York Times piece by Norimitsu Onishi, there's a historical angle to this:
Despite intensifying calls to ban or restrict trophy hunting in Africa after the killing of a lion named Cecil in Zimbabwe, most conservation groups, wildlife management experts and African governments support the practice as a way to maintain wildlife. Hunting, they contend, is part of a complex economy that has so far proven to be the most effective method of conservation, not only in Africa but around the world as well.
While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.
And because trophy hunting is legal in private game reserves, the animals end up fetching higher prices than they would in being killed for food or other reasons, conservationists contend. Lion hunts, one of the most lucrative forms of trophy hunting, bring in between $24,000 and $71,000 per outing on average across Africa, according to a 2012 study. In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.
A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, they argue.
“There’s only two places on the earth where wildlife at a large scale has actually increased in the 20th century, and those are North America and southern Africa,” said Rosie Cooney, a zoologist who is the chairwoman of the International Union for Conservation of Nature’s Sustainable Use and Livelihoods Specialist Group. “Both of those models of conservation were built around hunting.”
More on Cecil the lion here.

Tuesday, August 11, 2015

Labor and environmentalism in Canada

Sarnia Chemical Valley, Ontario (by P199)

Last year we noted an article on American labor organizations and environmental regulation; it turns out that around the same time an article was published on a similar phenomenon in Canada; Katrin MacPhee's "Canadian Working-Class Environmentalism, 1965–1985" appeared in last year's Labour/Le Travail. The abstract:
The historiographies of Canadian labour and environmental activism have largely overlooked the existence of a distinctly working-class environmental consciousness in Canada between 1965 and 1985. This worker-oriented environmentalism was expressed in three separate but interrelated strategies. First, labour activists in the 1960s through to the 1980s undertook independent research into the environmental contaminants present in their own workplaces and subsequently released into the larger environment. Second, a number of Canadian unions consistently endeavoured to compel branches of the Canadian government to adopt and enforce strict environmental policies and regulations. Third, Canadian union members exercised the weapons at their disposal – collective bargaining, demonstrations, and strikes – to prevent harm to environmental and human health alike. Through an analysis of these realms of struggle, I outline an environmentalism born of a class analysis of health and disease under capitalism.

Monday, August 10, 2015

Statute consolidation and the forest for the trees

While reading up on statute consolidation and revision in 19th-century Britain, I came across (thanks to Desmond H. Brown, "Abortive Attempts to Codify English Criminal Law") an 1826 speech on the topic by the great reforming Conservative politician, Robert Peel, then Home Secretary. Here's what Peel had to say about criminal offenses regarding trees (a topic written about so elegantly by EP Thompson):
There are not less than twenty statutes relating to the preservation of trees from theft or wilful injury, some properly confined to trees alone, others relating to matters so utterly unconnected with the protection of timber, or with the crime of theft, that I shall be almost suspected of fabricating the title of a bill for the purpose of my argument. It seems to have been discovered about fifty or sixty years since that the various laws which had previously passed with respect to timber, did not afford sufficient protection to hollies, thorns, and quicksets, and to save the trouble of amending the former laws—these neglected shrubs were provided for in an act, which, in taking charge of them, took charge also of the other matters referred to in the following title.
George Patten, Sir Robert Peel, 2nd Bt
"An Act for the better securing the duties of customs upon certain goods removed from the outports and other places to London; for regulating the fees of his majesty's customs in the province of Senegambia in Africa; for allowing to the receivers general of the duties on offices and employments in Scotland a proper compensation; for the better preservation of hollies, thorns, and quicksets in forests, chases, and private grounds, and of trees and underwoods in forests and chases; and for authorizing the exportation of a limited quantity of an inferior sort of barley called bigg from the port of Kirkwall in the island of Orkney."
Now, Sir, what I propose is, not to lessen the security which the law gives to the owner of madder roots, not to throw open the holly or thorn to wanton depredation, but merely to transplant them to a more congenial soil than the province of Senegambia.

Sunday, August 9, 2015

Landscapes of my youth

Sligo Creek

I have fond memories of a hot, humid summer, when I turned 7, collecting tadpoles and algae in the Northwest Branch of the Anacostia. As an even younger child my favorite weekend activity was to ride the miniature train around Pine Lake, and as a teenager my friends and I spent endless hours biking and walking along shady Sligo Creek. I was thus happy to see this under-appreciated corner of the world (the multicultural and middle-class east side of Montgomery County, Maryland is overshadowed by the more glamorous, western neighborhoods of Bethesda, Potomac, and environs) receive some attention in an article, "The Social-Ecological Resilience of an Eastern Urban-Suburban Watershed: The Anacostia River Basin", authored by Craig Arnold and four others. The abstract:
This article develops a new framework -- the institutional-social-ecological dynamics framework (ISED) -- to assess the relationships among institutional change, societal change, and ecological change in evaluating the current and likely future resilience of a small, Eastern, urban-suburban watershed: the Anacostia River watershed in DC and Maryland. A historical case study of the watershed explores the transformations of the watershed across key thresholds, including how legal, governance, and social institutions changed since European colonization and how these changes have affected the ecosystem functioning and social dynamics in the basin. Major drivers of change are identified, including the potential for climate change impact on the watershed and 3 possible futures for the watershed, ranging from hydro-ecological collapse to a greening of the watershed. Finally, watershed governance in the basin is evaluated to determine whether it is adaptive to change. The necessary features of adaptive governance in this particular basin, include watershed-focused governance, restoration and green infrastructure, land use regulation, public engagement, social justice, and monitoring and feedback loops. Law and planning play critical roles in all of these features. Whether the basin will continue to develop and improve its emerging elements of adaptive governance remains to be seen, but several key variables to watch are identified.

Saturday, August 8, 2015

Water law, community, and religion in Utah

Irrigation ditch in front of Brigham Young's houses, Salt Lake City
(Utah Div. of State History)

The tension between capitalism and private property on the one hand, and religion and communal property on the other, is the subject of John Bennion's "Water Law on the Eve of Statehood: Israel Bennion and a Conflict in Vernon, 1893-1896", published in last fall's Utah Historical Quarterly. Without knowing enough about the Utah case in particular, I personally believe the conflict was never as stark as is thought today; prior appropriation was aimed at breaking water monopoly, and communal forms of control--whether through mutual ditch, user-owned corporation, or irrigation district--were and have remained the dominant forms of irrigation organization. Bennion's article confirms that even after the adoption of the appropriation doctrine, communal control persisted. His article begins:
The life of Israel Bennion, a second-generation Utah Mormon, was shaped by his desire to establish a Zion community in an arid land. His journals from 1893 to 1896 describe his efforts to resolve a local conflict over water--a type of conflict common where water is precious and streamflows vary during the year--in Vernon, a Mormon village at the south end of Rush Valley in Utah Territory. Bennion believed water ought to be administered according to the pattern established by the first settlers--through church and community channels, with water theoretically distributed according to the needs of all users. Others in Vernon chafed at communal administration and subscribed to a government-based system of prior appropriation, where water could be bought and sold as if it were private property. This practice became codified into law when Utah became a state. The squabble in Vernon illustrates two ideological positions as Utah shifted from communal to capitalistic management of water.
Several trends combined to create conflicts in Mormon villages in Utah in the 1890s: economic development required stable and permanent sources of water that could be transported to where industries needed it; new settlers, which by now included non-Mormons, hoped to gain water rights not mediated by LDS church authorities; and many residents of Utah Territory sought to become a part of the economic fabric of the United States. Even as the former attitudes toward water eroded, replaced gradually by new beliefs that were manifested in water code, Bennion and many other Mormon water users subverted the new laws because they continued to believe in a community approach to water distribution. 

Friday, August 7, 2015

Death Valley

I've been harping on the weather a lot lately, but it's at least a small comfort to know that it's probably hotter somewhere else. Like Death Valley. April's Environmental History had a review by Kevin Brown of Death Valley National Park: A History, by Hal K. Rothman and Char Miller (U. Nevada Press, 2013). Some excerpts:
Based on Rothman’s administrative history of the park written under contract with NPS in the early 2000s and then revised posthumously by Miller, this concise and well-researched volume shows how the agency repeatedly struggled to reconcile its evolving mission and legal obligations with the past human uses of the desert and ongoing social and environmental changes beyond the park’s borders. While many of the issues that confronted NPS in Death Valley have been considered in the extensive literature on the national parks, Rothman and Miller’s focused study is a reminder that when considering a bureaucratic agency largely defined by particular landscapes, it is important to note how the peculiarities of place help to create variations in policy.
Conflicts over existing claims to land and water within the park form a crucial part of Rothman and Miller’s work. Native Americans had lived in and around Death Valley for thousands of years, seasonally migrating through the region to take advantage of resources at a variety of elevations. At the founding of the national monument, those Timbisha Shoshone remaining in the park were “caught in limbo” and denied control over lands on which their lives had depended but to which they did not hold legal title (p. 69). Until the 1990s, when the Timbisha finally gained some measure of control over tribal lands in the park, this tension was reflected through NPS (shamefully) ignoring or exacerbating conditions of substandard housing at a community built near park headquarters in the 1930s.
Rothman and Miller’s study also shows how the 1960s and 1970s reshaped the management of Death Valley’s natural and cultural resources. The suite of environmental laws passed in those decades collectively pushed NPS (sometimes reluctantly, sometimes willingly) to designate wilderness, establish protection plans for animals that had been in the park for a very long time (desert bighorn and pupfish), while also working to curtail those invasive species relatively new to the park (burros and tamarisk). NPS also belatedly began to take stock of its archeological sites and developed a plan for preserving historic structures. While some of these planning efforts have been successful, Rothman and Miller suggest that the growth and development of the Southwest has also brought new resource challenges to Death Valley, especially in the form of groundwater withdrawals, air pollution, and crime. 

Thursday, August 6, 2015

The Kawbawgam Cases

Last year's Michigan Historical Review published Rebecca Mead's "The Kawbawgam Cases: Native Claims and the Discovery of Iron in the Upper Peninsula of Michigan" (also here). The article begins:
Charlotte Kawbawgam (Superior View)
The southern shore of Lake Superior is a beautiful but rugged and isolated region that inhibited early Anglo-American settlement and still poses significant challenges for its inhabitants. In 1840, seasonally nomadic groups of Algonkian-speaking Natives and the mixed-race peoples of the fur trade occupied the area, but after the discovery of valuable mineral resources the situation changed rapidly.... When the first Anglo-American surveying and prospecting parties came to the area, local Natives guided them to the fabulously rich deposits of the Marquette Iron Range but the prospectors shared little of the subsequent wealth. Charlotte Kawbawgam's story reveals, however, that Anglo-Americans did not always appropriate Native resources without gratitude or payment. Kawbawgam's efforts to obtain compensation from Jackson Iron Company for services rendered by her father Matji-gijig ("Bad Day") in locating the Marquette Iron Range culminated in three Michigan Supreme Court cases in the 1880s and a landmark decision.

Tuesday, August 4, 2015

Public property in Imperial Russia

Ivan Bilibin, Vasilisa the Beautiful at the Hut of Baba Yaga

A while back we noted the LSA's honorable mention for of Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014) and expressed the hope that we'd hear more about the book soon. The American Historical Review answered our prayer; its latest issue has a review by John Randolph. Some excerpts:
Pravilova perceptively observes that although historians have long debated the status of private property in Russia, little attention has been paid to public goods, distinct from the domains of the Romanovs and those of their individual subjects. Pursuing this quest for a “res publica in the imperial state” across many cultural realms—from forestry and mineralogy to arts and letters—Pravilova presents it as a powerful force in late imperial life. Though only fitfully realized before the October Revolution, this ambition encouraged the prominence of “rule by experts” in Russian statecraft, a heritage handed down to the Soviet state. It also stimulated popular demands to institutionalize the common good, expropriating it where necessary from private hands. Indeed, Pravilova argues, the greatest legacy of the search for a public domain in imperial Russia was to present a change in property rights as the essential foundation of progress, obscuring and in some cases occluding other kinds of political and economic reform.
Pravilova's engrossing study opens with a paradox. Liberal theory has long seen rule of law as the foundation of property rights. Yet autocratic Russia, where the sovereign's will was often understood to stand above all law, possessed one of the absolute property regimes in Europe, giving owners sweeping rights to hold, use, and defend their estates. Pravilova explains this by arguing that the invention of private property in its modern form in Russia rested on a promise—made by Catherine the Great and her successors—that property rights were guaranteed irrevocably and inalienably by the autocracy itself. Those who sought to limit private use of natural resources, such as the fish caught on a river or the fallen wood in the heart of a forest, had to argue that the monarch's inviolable and unlimited promise was not so inviolable and unlimited after all. For much of the first half of the nineteenth century, this proved too steep a hill to climb. As a result free Russia became a veritable ownership society. All manner of grand enterprises (capitalist or autocratic) were complicated by the individual rights of myriad landlords. The state-led emancipation of Russia's serfs in 1861 deepened this conundrum, “[leaving] the state face to face with millions of people and new proprietors, who before the reform had been placed under the administration of their landlords” (p. 57).
All the same, in the second half of the nineteenth century this fractured proprietary geography saw its absolute dominion restrained and at points undone by apologists for public property, according to Pravilova. She conceptualizes this shift neither as a purely legal evolution in property law, nor as a public campaign with a specific chronology or set of actors, but as an “ongoing reformist project” (p. 138) that labored, in an uncoordinated fashion, for much of the second half of the nineteenth century. To make this claim, she works across cultural realms with impressive fluidity, showing how similar notions animated agents in arenas as seemingly diverse as hydrology, philology, and church governance. In each of these areas, experts staked claims for cultural patrimony, arguing that a portion of Russia's rivers, religious architecture, and even its poets' private letters had to be reserved, preserved, and managed by the state. Most generally, Pravilova characterizes this “project” as reflecting a tension in the history of liberalism in Russia. Though absolute property rights had been presented by Russia's absolute rulers as an example of imperial freedom, over time society's sense of its own right to develop freely seemed to require the creation of a common inheritance so that Russia could reach its true potential. Pravilova suggests that this imperial “public domain” was far from finished or secure by 1917, but that its ideals nevertheless helped frame the radical solutions Soviet power would bring thereafter as the new state nationalized the empire and empowered science to rule it on the people's behalf.

Sunday, August 2, 2015

Agrarian politics and American parks

The environmental history of slavery is a topic that has gotten much attention recently. Thanks to Legal History Blog for pointing out a new angle on this: H-War recently posted a review by Eric Burke of Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era (UNC Press, 2015). Some excerpts from the review:
Historians have long attributed the ascendance of the Republican Party during the late 1850s to its broad appeal with Northern farmers, especially in the Midwest. The political ideology of the party was weighted heavily toward lauding the benefits of the proliferation of small-plot family farming throughout the nation. Indeed, as Eric Foner has pointed out, though Republicans are often connected in historical memory to their efforts to champion industrialization during the Gilded Age, antebellum and wartime Republicans emphatically insisted that America could (and should) remain "a society of family farms and small towns, while still experiencing the benefits of industrialization," and constructed their platform and policies accordingly.
In 1864, Congress... debated the fate of the Yosemite territory in California—a gem of natural beauty that many hoped "would 'civilize' the average person and improve his or her intellectual abilities" upon the mere sight of its splendor, and thus could best serve the public good preserved in its natural state (p. 7). Consistent with their near deification of the smallholding farmer however, radical Republicans disagreed. "The Constitution and the laws are for the protection of citizens and not for the creation of fancy pleasure grounds by Congress," one radical remarked, aptly summarizing the sentiments of many Republicans like George Julian of Indiana (p. 109). Radicals instead argued that the territory should be opened up for settlement by small farmers at once, thus fostering the spread of "freedom, union, and an improved society" (p. 126). The situation was complicated by the presence of "squatting" farmers already productively working the soil of the territory, forcing Republicans to decide whether or not to evict their beloved yeomen in order to preserve the territory's natural beauty for the enjoyment of the public at large—a plan supported by ardent Republican and landscape architect Frederick Law Olmsted. As Dean shows, Republicans fractured on these lines during the Yosemite debates of 1864, with the Olmsted project finally prevailing. But more important, Dean argues, the debates themselves offer a glimpse into the prevailing agrarian ideology of radical Republicans, suggesting that such "environmental controversies were not about preservation versus destruction," but rather were directly "connected to the main political currents of the time" (p. 8).
Also connected to these currents were Republican endeavors to reconstruct the South in the aftermath of victory and "civilize" Native Americans on western reservations. In his final chapter, Dean argues against the tendency of historians to find "inconsistency in [Republicans] promoting African American land rights in the South while curtailing Native American freedoms in the West." Republicans perceived no such inconsistency. "Both groups, they believed, would become small farmers and, in doing so, adopt white cultural values," Dean explains. "Since most northerners lived in rural communities and celebrated the environmental and political benefits of small farming, converting others to their lifestyle seemed natural" (p. 186). By emphasizing this factor, Dean ably supports his claim that "Northern policy makers did not want to industrialize the South and the West," but rather "intended to promote farming communities and strengthen the yeomanry that provided the foundation for republican government" (p. 136). Although perpetual violent resistance and the ever-decreasing tenability of small farming across the late nineteenth century gradually dismantled dreams of "civilizing" the Republic, Dean's approach highlights the continuity of Republican projects across the Civil War and Reconstruction era and "allows historians to make new connections between seemingly different topics" (p. 186).