Friday, November 30, 2018

Running water for the officials, rainwater for the poor

Venetian aqueduct in Crete
The latest issue of Water History has an article by Yannis Spyropoulos, "Running water for the officials, rainwater for the poor: symbolic use and control of water in early modern Ottoman Crete". The abstract:
This paper deals with the issue of water management on the island of Crete from the beginning of the Ottoman–Venetian war in 1645 to the beginning of its Egyptian administration in 1830. Based primarily on information given by Kandiye’s (mod. Herakleion) Shariah court records, but also on a variety of published and unpublished archival material from Turkey, Greece, and France, it explores the socioeconomic aspects of water-resource exploitation in the island’s urban centers, analyzes the involvement of various local and imperial actors in water management, and locates the struggles created in the above-mentioned processes. Through a detailed analysis of the challenges faced by the administration and the population of an insular area with limited water resources, such as Crete, the article tries to take a fresh look at water management on the Ottoman periphery: It redirects the researchers’ focus from heavily-populated cities and large cultivated plains to the examination of smaller regions with no major hydraulic and irrigation networks and puts emphasis on the symbolic use of water in the socioeconomic context of the Ottoman Empire.
And from the conclusion:
I would like to underline the importance of running water in early modern Ottoman Crete as a symbol of financial and administrative power. In Islamic Law, water was considered to be a public good reserved for everyone, regardless of class and officialdom. Yet, in an insular space with limited water resources, such as Crete, Islamic canonical treatment of water was often overruled in favor of those with access to wealth and power. In this context, the ownership of running water became a status indicator for the island’s elites and a field of competition and negotiation between various officials. In early Ottoman Crete, it was mainly the sancakbeyis and other non-Cretan officials who undertook the task of finding and channeling running water to the island’s three cities, yet, through time, as local elites started rising to power, mainly through their connection with the military, the management of water resources gradually passed into the hands of both imperial and local actors. Their origins notwithstanding, the tactic used by all these elites was similar: They claimed the water of all the springs discovered in the vicinities of their cities by creating infrastructure connecting the former to the latter. After ensuring the appropriation of a large amount of water resources for their own establishments, they provided the rest of the water for public use –mainly through private endowments—thus presenting themselves as benefactors in the eyes of the local populace. The latter’s restricted access to running water, on the other hand, not only made them turn to rainwater in order to quench their thirst, but it also seems to have been one of the most probable causes of the frequent sabotage of the water-supply networks of Crete, a reasonable reaction if seen in the light of the following Koranic verse: “And We send the fecundating winds, then cause the rain to descend from the sky, therewith provide you with water (in abundance), though ye are not the guardians of its stores”.

Tuesday, November 27, 2018

Savagery, civilization, and property II: Civilization and its discontents

(Part II of the series, Part I is here.)

The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents),  of what would come to be known as “stadial theory” or “four-stages theory.” This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New World societies that reminded Europeans of societies described in classical Greco-Roman and biblical sources, and raised the issue of what separated “savage” or “barbaric” peoples from “civilized” ones. Stadial thinking offered a theory of progress:
In its most specific form, the theory was that society ‛naturally’ or ‛normally’ progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce. To each of these modes of subsistence, it came to be argued, there corresponded different sets of ideas and institutions relating to law, property, and government… (Ronald L. Meek, Social Science and the Ignoble Savage 6 (1976))
From the beginning, property law had a central place in this type of theory — it was, it seems, the motivating factor behind the theory  — and the discussion of property displayed striking similarities to aspects of modern commons theory (to be discussed in Part III below). John Dalrympleʼs three-stage theory, the first published version of stadial theory (1757), connected the progress of society with increasing specification of property rights. Moreover, it attributed the transition between stages to what we might today call increasing pressure on resources:
The first state of society is that of hunters and fishers; among such a people the idea of property will be confined to a few, and but a very few moveables; and subjects which are immoveable, will be esteemed to be common. In accounts given of many American tribes we read, that one or two of the tribe will wander five or six hundred miles from his usual place of abode, plucking the fruit, destroying the game, and catching the fish throughout the fields and rivers adjoining to all the tribes which he passes, without any idea of such a property in the members of them, as makes him guilty of infringing the rights of others.
The next state of society begins, when the inconveniencies and dangers of such a life, lead men to the discovery of pasturage. During this period, as soon as a flock have brouzed [sic] upon one spot of ground, their proprietors will remove them to another; and the place they have quitted will fall to the next who pleases to take possession of it: for this reason such shepherds will have no notion of property in immoveables, nor of right of possession longer than the act of possession lasts. The words of Abraham to Lot are: “Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then will I go to the right; or if thou depart to the right hand, then will I go to the left.” And we are told that the reason of this separation, was, the quantity of flocks, and herds, and tents, which each of them had, and which the land was unable to support; and therefore lord [sic] Stairs ingeniously observes, that the parts of the earth which the patriarchs enjoyed, are termed in the scripture, no more than the possessions.
A third state of society is produced, when men become so numerous, that the flesh and milk of their cattle is insufficient for their subsistence, and when their more extended intercourse with each other, has made them strike out new arts of life, and particularly the art of agriculture. This art leading men to bestow thought and labour upon land, increases their connection with a single portion of it; this connection long continued, produces an affection; and this affection long continued, together with the other, produces the notion of property. (John Dalrymple, An Essay Towards a General History of Property in Great Britain 86–88 (1757))
Lord Kames
The jurist Henry Home, Lord Kames, also connected the stages of society to property law in his Historical Law Tracts (144–46 (Edinburgh, A. Kincaid & J. Bell, 1758), footnotes omitted and spelling modernized):
In the two first stages of the social life, while men were hunters or shepherds, there scarce could be any notion of land-property. Men being strangers to agriculture, and also to the art of building, if it was not of huts, which could be raised or demolished in a moment, had no fixed habitations, but wandered about in hordes or clans, in order to find pasture for their cattle. In this vagrant life men had scarce any connection with land more than with air or water. A field of grass might be considered as belonging to a horde or clan, while they were in possession; and so might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer subsisted any connection betwixt them and the field that was deserted. It lay open to new-comers, who had the same right as if it had not been formerly occupied. Hence I conclude, that while men led the life of shepherds, there was no relation formed betwixt them and land, in any manner so distinct as to obtain the name of Property.
Agriculture, which makes the third stage of the social life, produced the relation of land-property. A man who has bestowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it.
Elsewhere Kames connected the advance between stages with the pressure of growing populations on resources: 

Friday, November 23, 2018

Farber's 1981 casebook

Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981:
Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then.
Even though the statutes are the same, there have been a massive number of new regulations and court decisions. In 1981, we were able to cover both the Clean Air Act and the Clean Water Act in just over a hundred pages of fairly large print. In the latest edition with Ann Carlson, covering those statutes takes 170 pages in much smaller print. (The next edition will add one more co-author, William Boyd.) In 1980, we could excerpt just about every Supreme Court environmental case, but now there are too many. And of course, there’s CERCLA now. Despite dropping an important topic (public lands) and having smaller print, the latest edition is over 200 pages longer.
I was also interested to see that the 1981 edition had a chapter on federalism, including restrictions on state environmental regulation. We also included some material on the ability of cities to pursue environmental regulations under state law. Both have remained hot topics and the subject of frequent litigation today.
The 1981 edition was ahead of its time in one way: there was a separate chapter on energy and the environment. The amount of pride that I can take in that is dimmed, however, by the fact that we dropped that chapter very soon thereafter and redistributed the contents to other chapters. People had lost interest in energy issues at that point. 

Tuesday, November 20, 2018

Savagery, civilization, and property I: Introduction

To cap the series I've been doing on "The Tragedy of the Commons at 50" (the last post is here), I'm going to post my own contribution to the issue (SSRN, Academia), in installments. I'd be really happy to get feedback.

This series makes a simple claim: that the commons theory of the last half century, in its various forms and schools, has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” passed down to the twentieth century through the disciplines of anthropology and human ecology, and strongly entrenched in the patterns of thought of property theorists to this day.

I do not wish to argue that recent thinkers deliberately or consciously based their theories on early modern precedents, nor do I claim that their theories simply recast old theories, pouring old wine into new bottles. What I wish to argue, rather, is that modern commons theory is a series of variations on a theme, the theme being the passage of human societies from stages of “barbarism” or “savagery” to “civilization.” This way of thinking, largely elaborated in the eighteenth century, has proved to be so powerful that it continues to shape the discourse around common property and environmental commons into the twenty-first. As Nathaniel Wolloch has argued with respect to similarities between stadial theory and Norbert Elias’s civilizing-process theory, “the similarities between these two perspectives are much clearer than their differences, and point to a continuing tradition in modern historiographical interpretations of the rise of civilization.” For Elias’s theory substitute property theory, and for historiographical interpretations of the rise of civilization substitute theoretical interpretations of the rise of private property, and you have my argument.

The significance of this claim lies not only in its implication that modern commons theory has been somewhat confined by the straits of a discourse of which it is not even always aware. It lies also in that its portrayals of transitions between property regimes largely partake either of Enlightenment assumptions of civilizational progress or of a Romantic reaction to this attitude, with its valorization of the primitive. Thus do deep cultural attitudes, rooted in the speculative thinking of an earlier age, color todayʼs theories — positive and normative — of the commons.

A commons
To set the stage, consider the concrete examples or allegories used by commons theorists of the last half century, to be discussed in the next post. Nearly without exception, they have skipped over such familiar but prosaic commons as cooperatives, condominiums, corporations, and neighborhood associations, in favor of studies of the exotic worlds of hunters, herdsmen, and smallholding farmers. The reason, I suggest, is the continuing influence of early modern theories of civilization.

After describing (in post II of this series) these earlier ways of thinking I will note (in post III) the striking similarities of recent theories of the commons to the earlier models, and then (in post IV) try to trace the channels of influence. I will conclude with why I think this matters.

Friday, November 16, 2018

Why are California's fires worse than those in Baja California?

California's Camp Fire, November 2018
Peter Reich recently posted "What Happened to Hispanic Natural Resources Law in California?". The abstract:
Before the US annexation of California in 1848, the region’s Spanish and Mexican governments supervised a geographically-adapted legal system emphasizing communal water rights and public allocation of minerals, land, and coastal areas. While many post-takeover judges considered Hispanic legal principles, the overall trend was to reject these in favor of common law. The prior anti-developmental tradition was in most cases distorted, overridden, or procedurally blocked, and the jurisprudence replacing it facilitated resource degradation that has been only partially reversed by California’s modern environmental policy. As one example, the stark contrast between fire zone rules in Mexico’s Baja California and in US Southern California, and the resulting far more destructive conflagrations in the latter, demonstrate the advantages of the more managed, sustainable Hispanic approach.

Tuesday, November 13, 2018

Trends and approaches to the commons in historiography

Next to last in our series on "The Tragedy of the Commons at 50" (the previous post, on Carol Rose's article, is here) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography". The abstract:
This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research. The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long-enduring institutions that efficaciously manage commons. The second line has focused on the conflicts caused by exogenous interferences in the management of common land, such as state or market intervention, and their social and environmental consequences. The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level. The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis.
Thomas Malthus

Thursday, November 8, 2018

Survey: Top environmental law cases

I'm reposting (with permission) an email I recently got from Jim Salzman (the picture is my own addition):
We are writing to invite you to participate in a survey we trust you will find interesting and fun. In 1999 and 2009, JB Ruhl (Vanderbilt Law School) and I surveyed environmental law practitioners and academics about which Supreme Court cases they thought were the most important to our field. The 1999 results were published in ABA’s Natural Resources & Environment, and the 2009 results were published in ELI’s The Environmental Forum. A decade later, we have prepared the 2019 survey and are eager to see how the data have changed. We intend to publish the results this Winter.
Please click here for the link to the survey. We are posting this information on multiple environmental law list serves and apologize for cross-listings. Please take the survey only once.
We hope you will take the two minutes needed to complete the survey to help give us as much data as possible.  Thanks for your assistance with this! 

Friday, November 2, 2018

Water law in imperial Russia

The current issue of Water History has an article by Anna Mazanik, "Industrial waste, river pollution and water politics in Central Russia, 1880–1917". First, an extract (footnotes and references omitted):
Imperial Russia did not have a unified legislation on water pollution comparable, for example, to the Rivers Pollution Prevention Act of 1876 in Britain. This did not mean that the tsarist government made no attempt to protect water resources and that the questions of industrial discharge and water pollution were not legally regulated. Rather, their regulation was dispersed across several legal statutes and decrees, often in unclear, repetitive or somewhat contradictory formulations, which meant that even contemporary bureaucrats and experts found it difficult to apply.
Czar Alexander II
The basic principles of water protection were stipulated in the state legislation such as the Medical and Building Statutes and the Statute of Industry. The Medical Statute forbade “contaminating water in places where it was taken for internal consumption by throwing into it harmful substances or in any other way” (ruled in 1871) and obliged local police and municipalities to ensure that “rivers and springs in towns and villages were not polluted.” The Building Statute and the Statute of Industry prohibited the construction of “mills and factories harmful for the purity of air and water upstream of towns.” This norm was inherited from the early nineteenth century and its interpretation and application proved difficult in the later contexts of urban and industrial growth. In 1904, the Senate had to clarify that it applied only to particularly dangerous or poisonous industries, while all other factories could be allowed on condition of proper waste decontamination.