|Claude Monet, Boats in the Pool of London, 1871, private collection|
The first reason for my turn to art is prosaic. Traditional legal sources—treatises, digests, national legislation, and appellate decisions—clearly dedicated to identifiably environmental topics were few and far between before the 1970s, and so legal-historical research of even the simplest sort—identification of the norms of positive law—needs to take up whatever tools, however indirect, it can find. Though the physicality of the environment seemingly makes environmental law a good candidate for historical investigation based on visual sources, the legal element of environmental issues has only been foregrounded infrequently in art, even when environmental issues are clearly the subject of that art. Beyond this seemingly technical task, art may be a useful source for two further dimensions of the historical understanding of environmental law: it might provide insight into the background conditions—environmental and cultural—against which and in reaction to the law developed; and it might provide data for assessing the effectiveness of environmental law.
It is, of course, problematic to assume that a work of art presents an accurate representation of historical reality; even on the level of subjective perception, assuming that the work of an individual artist is somehow representative of general attitudes may be unwarranted. Nonetheless, the potential profit to be gained from this heretofore unexamined set of sources seems great enough to justify a tentative attempt at using art to try to learn something about the history of environmental law that we might not be able to learn otherwise. In this article I would like to use art mostly as evidence of historical attitudes towards environmental issues, but I believe that it also has some value as evidence of the physical environment in history. As Peter Brimblecombe writes:
Surroundings must influence the way in which an artist paints, no matter how much he may wish to paint mental images rather than the physical world. A picture will contain much of the artist’s personal view about the environment, but we can also expect to find some aspects that are an objective portrayal of reality.Moreover, the subjectivity of the artist is a less formidable problem than might be thought once we take into account the fact that photographs, official and non-official reports, and other historical sources are each “tainted” by their own biases of medium and author, so that the personal biases of the painter are just one more factor to be taken into account by the historian weighing the sources.
The use of art as a source for environmental history research—though not necessarily related to law—is not new. The journal Environmental History’s “Gallery” section, with its essays on historical visual sources, has been running four times a year since 2003. More specifically related to the period and topics of this paper, historians and scientists have produced a significant body of work on air pollution and climatic phenomena as reflected in paintings and writings of the industrial age (e.g. here and here). In legal history, Al Brophy has used landscape paintings to illuminate aspects of American property law in the antebellum period. I believe that the present study is the first to delve into art as a source for the history of environmental law, seeking to test the limits of using art not merely to illustrate environmental-legal phenomena known from other sources, but as a source for insights and knowledge that might otherwise be unavailable to us.
In upcoming posts I will explore the three aforementioned dimensions of the history of environmental law: first, art reflecting the conditions against which environmental laws developed (or did not), next, indications in art of the effects of environmental law, and finally environmental law itself as depicted in art. It will touch only briefly on another important issue, the place of art in the creation of environmental law.