Preserving Austrian Forests—and More

“Sustainability is the key principle”—that’s how Bernhard Mittermüller describes the great Austrian Forest Act of 1975 in my latest video, “Preservation Waltz.” Mittermüller teaches at the University of Natural Resources and Life Sciences in Vienna, fondly known as BOKU, and he was kind enough to speak with me for this latest addition to my series about Austrian conceptions of law and the Austrian experience of landscape (discussed previously on ELH here and here).

One of the things that intrigued me during my Fulbright stay in Austria was the way that many of its modern, progressive legal concepts grew out its monarchical past, and they bear traces of that royal origin. In Austria, the echo of monarchy is everywhere, including in jurisprudence.

That’s certainly true of the legal concept of environmental sustainability, which now is enshrined in Austrian constitutional law as a national aspiration. Ironically, the regulation of Austrian forests today grew from the efforts of early modern archdukes and prince bishops to protect the woods because of the critical role wood played in the mining industry. This form of environmental protection involved a forceful assertion of power over the local population.

Even more deeply, the regulation of forests in Austria is inextricable from the development of the modern state as a whole. Whereas in England, the first use of the term “common law” was as a contrast to the law of the forest, in Austria the growth of the national approach to law and governance was based in a meaningful degree on the regulation of  the woods, as the spirited legal historian Martin Schennach of the University of Innsbruck explains.

And so the beauty of the well-tended Austrian landscape, which today forms the life-blood of the tourist economy on which the nation depends; the restriction of private autonomy in relation not only to environmental resources but as a general matter of Austrian social life; the progressive vindication of an ideal of the public good; and the social hierarchy of the Mandarin administrative apparatus which took the place of royal authority—all were of a piece in the formation of Austrian identity. And these links can be perceived, and caught on film, shimmering and hovering about everyday Austrian life.

The video isn’t only about the protection of the forests. It’s called “Preservation Waltz,” and it also meditates on the principles of sustainability, community, and order in two other fields involving law and wood. The first area is Austrian domestic architecture, discussed by Karim Giese of the University of Salzburg, which prizes harmony and uniformity as a form of cultural sustainability. Construction law in Austria is guided by the same resistance to market liberalization present in Austrian forest law.

The second area is the preservation of books (made from paper, derived from wood). The video indeed is structured around a conversation with Renate Schönmayr, director of the University of Salzburg’s law library, which I hope playfully links its look at forest and construction law with larger cultural themes about what it means to conserve, safeguard, and study the past.

Want to learn more about Austrian forests and forest law? Here a link to an English-language section of the Austrian forest ministry. Here is the English translation of the Austrian forest report of 2015. And here is the contemporary, amended forest legislation in German. And here is the video:

A River Runs Through It

[A new post from Mark Weiner. His previous post on this blog about Austrian law and landscape is here.]

My new video is about water, water law, Austrian identity, legal philosophy, concepts of the state, ideas of the public, approaches to time and tradition, metaphor, and some great old books. Plus, there’s a cameo appearance by a sweet Alpine cow:

The film is divided into two parts, held together within a single narrative frame: a day spent driving around beautiful Salzburg with a charismatic young legal scholar, Florian Lehne, who was eager to show off his country’s watery environment.

The first part of the film considers some of the ways Austrian law regulates water in a characteristically Austrian way—which is to say by vindicating the public interest and resisting market liberalization through strong assertions of state administrative authority. This part is centered around my trip with Florian.

The second part of the film meditates on Hans Kelsen’s pure theory of law, which in its strict formalism seeks to divorce conceptions of law and the state from politics. This part includes footage of Florian and a group of both young and well-established legal scholars from the University of Salzburg, the University of Vienna, and the University of Graz.

The division of the film into two parts serves a conceptual and methodological purpose, as well as a substantive one. Conceptually, it’s meant to underscore that different and sometimes divergent aspects of the same legal system can be connected by an underlying symbolic structure whose study is essential for understanding both the legal system’s details and larger issues of legal-cultural identity. Influenced by the work of Clifford Geertz in anthropology, I’ve explored this idea in a variety of ways since my first book, Black Trials, which sought to put that theory into practice through the techniques of literary-historical narrative. Film provides another method for pursuing this goal.

The film isn’t an illustrated lecture, and its purpose isn’t to make an analytic argument. Film makes its meaning through visual gestures and accompanying music and sound. But I’d like to note something about the origin of the film’s main idea: that post-war Austrian identity rests on an ideal of the public interest embodied in elite managerial institutions, and that this ideal represents a curious echo of monarchy within a modern social democratic state.

It isn’t surprising that this structure of thinking and identity should be reflected in water law. The beauty of the Austrian environment is one of the essential foundations of the modern Austrian sense of national self—the Austrian “brand,” both internally and externally, is as the land of mountains and Mozart. Austrians constructed this national self-understanding in significant part after World War II as part of an effort to differentiate their country from Germany. And since the 1970s it has been essential to the country’s economic health, which rests significantly on tourism.

Austrians have protected this cultural resource by nurturing the view that strong government authority is integral to their political community. It’s for this reason that environmental law, the individual experience of water, constitutional jurisprudence, and the individual experience of government all share a common symbolic structure—and that this structure can be captured in film.

A final word for the technically-oriented readers of this blog. The film was shot on a Panasonic Lumix GH4 at 25 fps—that’s to keep images under European PAL lights from flickering—a hard lesson learned a couple years back after I shot 24 fps under fluorescent bulbs in university offices). The audio was recorded internally with a small, expensive Senheiser shotgun mic and a rudimentary lav. A few clips also were shot with my iPhone, in NTSC rates. Most of the shots are hand-held, including the pans, and were steadied in post, though the interviews use a tripod. I edited with a MacBook Pro using Adobe Premier Pro, After Effects, and a smattering of Audition. When the film comes together, I’ll be relying on Audition and Speedgrade for the finishing touches.  As with the video I posted back in January, this is do-it-yourself, micro-budget filmmaking, which I hope gives it a distinctive feel and perspective.

Lead regulation in history

Virginia Zaunbrecher at Legal Planet has an interesting post putting the Flint, Michigan lead crisis in historical context, noting, among other things, that lead use in the U.S. has actually gone up during most of the period when blood lead concentrations were dropping. Here's some more comparative background, surprising to me:

Childhood lead poisoning was linked to lead paints in 1904.  France, Belgium and Austria banned white-lead paint in 1909.  The National Lead Company admitted lead was a poison in 1921.  The League of Nations banned white-lead interior paint in 1922 (you know an environmental regulation is old if it was issued by the League of Nations), but the U.S. declined to implement the ban.  Instead, the U.S. waited nearly half a century (1971) to pass the Lead Poisoning Prevention Act (42 U.S.C. 4822), although some local jurisdictions started banning it as early as the 1950s.  The ban on lead paint was fully implemented in the U.S. 1978, 74 years after childhood lead poisoning was linked to lead paints.

(courtesy Thester11)

Guest Post: A Video Project about Austrian Law and Landscape

David Schorr recently invited me to share a few words about my latest video project with the readers of this blog. The video will be called “Wood, Water, Stone, Sky, Milk: Law and Landscape in Austria.” It will run about ninety minutes once it’s complete, but in the meantime I’ve been releasing short draft segments, one of which was cross-posted here a few weeks back.

The latest segment is called “Alexander and Iris Talk About Stone (without meeting),” and it explores an Austrian legal method beguilingly named after one of the most prominent elements of the Austrian landscape:

Both Alexander and Iris were great sports, and their enthusiasm for video as a medium enabled this segment to address a serious subject with a light touch and to reach viewers well outside university circles. That’s a tone and openness I’d like to achieve throughout the film.

The project grows out seven months I spent as a Fulbright Scholar at the University of Salzburg in 2015, but its roots lie a bit further back. In 2012, I began an extended, unpaid leave of absence from Rutgers-Newark School of Law, where I had taught constitutional law and legal history for ten years. The reasons for the change were personal: my wife is a professor of English at Wesleyan University, and the burdens of my commute from New Haven came to outweigh the benefits of an academic career. We value our lives together.

The decision came with some significant material costs, but it has given me the time and freedom to strike out in new directions, and that’s been ever-inspiring. I had already published three books, and I wanted to jump well outside my comfort zone and explore modes of historical expression that were entirely new to me. I wanted to engage with radically different forms and styles of telling stories about the legal past. As it happened, two of the forms that came to interest me—two new directions I took—were visual.

The first new direction led me into the world of museum exhibitions. Most important, I began collaborating with my friend Mike Widener, Rare Book Librarian at Yale Law School, on an exhibition for the Grolier Club in New York about illustrated law books. Called “Law’s Picture Books,” the exhibition will feature a number of works that are sure to interest readers of this blog, like this eighteenth-century book about Dutch water law, or this great edition of Bartolus. Do come join us when the exhibition opens in February 2018—it’s going to be exciting.

The second new direction led me into the world of video production and editing, which has become one of the most profound humanistic experiences of my life—it forced me to wrestle with basic questions about our knowledge of the world. I’ll find another occasion to reflect on the challenges involved when a university scholar tries to learn digital video from scratch. But I can say here that, to my relief, it struck me immediately that the storytelling foundations of documentary work and my own academic writing were basically the same. And, happily, after a couple of years of trial-and-error learning, I’ve become familiar enough with Adobe’s suite of post-production products—storytelling tools of jaw-dropping power for historians—to create work that’s significantly better than the first film I made on my Flip Video camera. Plus, the great thing about being a beginner again is there’s so much opportunity to learn so much more.

“Wood, Water, Stone, Sky, Milk”—or, when I’m feeling less ambitious, “Stone, Water, and Wood”—began as a very different video project. When I put together my Fulbright proposal, I intended to make a film about the Austrian legal philosopher Hans Kelsen and his pure theory of law. This seemed like a project just quixotic enough to be interesting to me. But after spending a series of afternoons meditating on Kelsen along the banks of the beautiful Salzach river, it became clear that any filmic treatment of Kelsen would after all have to be a film.  That is, it would require exploring his highly abstract thought in a way that would be grounded in—indeed, that would proceed from—worldly, visual metaphors. It also became clear that the project was too narrowly conceived.

Natural resource law in Salzburg

Mark Weiner's recently posted his video, "Anna in the Mine", which, among other things, has some interesting talk about historical legal rights to natural resources in the Salzburg region. Archaeologist Anna Holzner explains that the Austrian administrative court has ruled that workers on the Dürrnberg still retain their medieval right to mine (salt) on the mountain.

Lake Constance fisheries

The latest Environment and History has an article by Michael Zeheter, "Order in the Lake: Managing the Sustainability of the Lake Constance Fisheries, 1350-1900". The abstract:

Around 1350 the authorities of the Lake Constance region began to regulate the local fisheries by issuing fishermen's ordinances and signing fisheries treaties with other principalities with the stated interest of protecting the fish stocks, which were considered a commons. The fishermen and their guilds were heavily involved in this process, since some of their practices - like the destruction of spawn and the catching of young fish - could have devastating consequences. The fishermen and their authorites decided regularly for more than four centuries to prioritise the long-term preservation of the fish stocks and not short-term profits to be made on the local fish markets. Thus, they avoided the disastrous outcome of a 'Tragedy of the Commons'.

Ludwig Hohlwein, Konstanz am Bodensee

Peter Sand on Karl Neumeyer as precursor of transnational environmental law

Alongside the thread on early environmental law courses, people have been wondering about the first environmental law textbook. Today Peter H. Sand, Lecturer in International Environmental Law at the University of Munich, joins us for a guest post on a contender for the title (see also his comment here). Peter writes [notes are after the jump]:

The history of international environmental law as an academic topic is generally associated with the emergence of treaties and case law on specific sectors such as shared watercourses, the oceans, or – from 1900 onwards – selected wildlife species. Doctrinal attempts at identifying common (trans-sectoral) elements, and a coherent discipline of international regulation and governance in this field, did not make their appearance until well into the second half of the 20^th century, with a prevailing and near-exclusive focus on public international law.

One notable exception was the pioneering work of Karl Alexander Neumeyer (1869-1941), who approached the subject from his distinct perspective of conflict of laws, in a monumental four-volume treatise titled Internationales Verwaltungsrecht (International Administrative Law, 1910-1936).[1] His life-time vision was the development of a new unified system of rules applicable to the transnational aspects of administrative law, to match the well-established conflict rules of private international law and procedure. And in the process, as part of an effort to demonstrate the pragmatic foundations of his approach in different sectors of public administration, he also assembled and analyzed a unique compendium of contemporary legal source materials that would indeed qualify today as typical ‘transnational environmental law’.

Chapter 8 in volume 2 of Neumeyer’s treatise (pp. 1-135), published in 1922, was headed Naturkräfte und Naturerzeugnisse (forces and products of nature). The first section, dealing with internationally shared water resources and water power, is based on the author’s earlier study of “water uses in international administrative law” (1915),[2] criticizing the rigid territorial sovereignty principle invoked by the Austrian Administrative High Court in the notorious 1913 Leitha River case,[3] and advocating the reciprocal protection of foreign legal interests along the lines of the 1909 US-Canadian Boundary Waters Treaty.[4] Other sections deal with the transboundary regulation of mineral resources; agriculture, forestry, hunting and fishing (based in part on the author’s early practical experience as law clerk at a district court in the Bavarian-Austrian border region); and the management and conservation of marine living resources, including a discussion of the 1893 Bering Sea fur seals arbitration.[5] Karl Neumeyer’s emphasis on the need for a mutual ‘other-regarding’ accommodation of foreign concerns, across the entire spectrum of nature-related topics, was way ahead of his times.

Neumeyer taught international law – with a focus on history and conflict of laws – at the University of Munich from 1901 onwards, until the Nazi regime forced him into retirement in 1934 because of his Jewish ancestry and barred him from continuing to work with the Hague Academy of International Law (where he had first lectured in 1923) and the Institut de Droit International (which had elected him to full membership in 1926).[6] Ultimately, when he was notified of the impending eviction from his house and the confiscation of his library, he and his wife decided to commit suicide on 16 July 1941.[7] There is a memorial tablet at their former home near the university; a Neumeyer-Strasse in the city; and in 2008, the Munich Law Faculty (whose dean he was in 1931-32) named the building that houses its Institute of International Law (which he had helped to create) in Karl Neumeyer’s honor and memory.