The postwar ocean frontier and its legacy for law of the sea

Just out in Environment and History: "Wild Blue: The Post-World War Two Ocean Frontier and its Legacy for Law of the Sea" by Helen Rozwadowski. The abstract:

The post-1945 ocean came to be viewed through the cultural prism of 'frontier', denoting both a bonanza of resources and also lawlessness that impeded secure investment in their exploitation. After Arvid Pardo inserted the cultural representation of ocean frontier into law of the sea discussions with his 1967 proposal of the ocean as the Common Heritage of (Hu)Mankind, the prospect of using hitherto unexploited ocean resources to equalise an unequal world was widely, if not universally, embraced. While many commentators deny the power of the ocean frontier representation, this paper argues that, even as environmental concerns about pollution and declining resources aligned with worries about global overpopulation, the ocean continued, during the protracted negotiations of the third United Nations Conference on the Law of the Sea beginning in 1973, to be viewed as full of resources. The historical context of decolonisation and Garrett Hardin's 1968 Tragedy of the Commons argument reframed the ocean into a site for competition over resources.

Arvid Pardo monument at the University of Malta (Dans)

Success on the commons

Last year Environmental History published a review by Frederica Bowcutt of Mexico’s Community Forest Enterprises: Success on the Commons and the Seeds of a Good Anthropocene, by David Barton Bray (U. Arizona Press, 2020). Some excerpts:

According to Bray, Garrett Hardin justified enclosure and centralized land management based on an ahistorical understanding; shared-pool commons have always been regulated by rules to prevent overuse. They are not, as Hardin suggested, a free for all. Ownership of land with valuable forest resources incentivizes rural Mexican communities to adopt, develop, and adhere to rules designed to prevent a tragedy of the commons. Results thus far indicate that community-based management of local forest resources “can be as effective as public protected areas in conserving forest cover and biodiversity, while also generating income for local communities” (p. 246).

Trends in commons scholarship

More on (transatlantic) commons scholarship: The editors of the International Journal of the Commons (Frank van Laerhoven, Michael Schoon, Sergio Villamayor-Tomas) just published an interesting quantitative review of commons scholarship over the last five decades, "Celebrating the 30th Anniversary of Ostrom’s Governing the Commons: Traditions and Trends in the Study of the Commons, Revisited". There are interesting statistics and tables on journals, citations, disciplines, and more. (For a different take on the history of the field, see The Tragedy of the Commons at 50.) Some highlights:

The start of commons scholarship can be understood as growing out of a rejection of Hardin’s prediction of natural resource degradation unless managed by governments or through private property rights (Poteete et al. 2010). Over time, however the approach appears to have been evolving.

*****

Arguably, commons studies grew out of concerns associated with the tragedy of the commons. Accordingly, typical studies of the commons have been associated with local contexts, particularly with common pool resources such as forests, fisheries and irrigation, and an interest in the opportunities and challenges of common property rights and rules....

Hardin (1968) asked us to “picture a pasture, open to all.” Pastures, together with fisheries, forests, irrigation systems, and water management belong to what the authors of the 2007 study referred to as the “Big Five” in the study of the commons. Through 2007 these topics drew most of the combined attention of commons scholars. Overall, we find that this trend continues [unabated]. Over time, we see a relative increase in interest in water and fisheries since 2007.

*****

Where Hardin claimed that only the state or the market could prevent a tragedy of the commons, Ostrom dedicated most of her career to showing how there is a lot of room on the spectrum that ranges between these two extremes (e.g. Ostrom, 1994). Figure 18 presents a crude way to gauge our field’s attention to the market, the state, and self-governance over time.

Savagery, civilization, and property VI: Conclusion

In the last post we looked at how stadial thought reached modern commons thought through the worlds of colonial development and conservationism. This post concludes the series.

I have argued in this series of posts that various strands of modern commons theory, though based, as well, on novel theoretical and empirical work, seem to lean heavily on the structures, examples, and sensibilities of stadial theories of civilization that rose to prominence in the late eighteenth century. These Enlightenment-era ways of thinking are admittedly outmoded as theories of history, but why should the historical sources of current theory matter?

Beyond the important goal of understanding the sources of our theories, foregrounding the continuing influence of stadial thinking on current theories of the commons should help us question some aspects of these theories by highlighting some of their oddities — such as the disproportionate weight of studies of hunting, herding, and the like among a far more diverse universe of commons situations that could be studied.

Possibly more important are the residues of the narrative of civilizational progress that continue to adhere to property theory. Carol Rose has noted ("Evolution of Property Rights", in 2 The New Palgrave Dictionary of Law and Economics 93, 94 (1998)) the quasi-religious belief in the advantages of private property held by some property theorists, especially those associated with the modern law and economics movement, according to which “an evolving property rights regime might lead humankind toward a new kind of earthly Paradise,” “a secular Eden of peace and plenty.” Rose’s own work, as well as that of some of the other commons theorists surveyed above, is free of this bias, remaining pointedly agnostic as to the direction of evolution among property regimes. But others — not only law and economics types but Hardinians and others — seem to accept (though they might not put it in these terms) that private property represents a more advanced stage of civilization than does the commons. This type of thinking lies at the root of many neoliberal policy prescriptions, from the importance of secure private property regimes to developing countries to the salience of cap-and-trade as a solution for climate change and other environmental problems.

Lucas Cranach the Elder, The Garden of Eden (1530)

On the other hand, the Romantic and Marxist reactions to the Enlightenment stories of stadial progress continue to inform another set of prescriptions and critiques, most prominent among them the many studies of successful indigenous commons management following Ostrom’s work. Whatever the normative and ethical attractions of these positions, it seems that their appeal rests partly on a narrative of fall from grace, a sort of negative image of the economists’ story described by Rose, and a yearning to return to an Eden of primitive and community-based commons.

Finally, on a more general level, I would like to highlight the central role that historical narratives or myths continue to play in nominally theoretical and normative scholarship. Myths are important, but so is clear-headed thinking about policy. By recognizing the myths on which much commons scholarship is built, we might be able to improve it.

I'd be happy for readers' thoughts. The full article is here.

Savagery, civilization, and property V: Colonial development and Neo-Malthusian conservationism

In the last post in this series we saw how Enlightenment-era stadial thought was passed on to modern commons theory through the aboriginal property rights debate among twentieth-century ecologists. Today I'll discuss what I believe two more lines of influence. (The full article is here.)

The first was by way of the work of anthropologists and scientists associated with British colonial development efforts under the aegis of colonial administrator Malcolm Hailey. Lord Hailey, after a career in the Indian Civil Service, was tapped to run the African Survey in the 1930s and the Colonial Research Committee in the 1940s, and was an advocate of multidisciplinary social science research, particularly anthropological, in the colonies.

The staff of Hailey’s African Survey seem to have created something of a nexus for stadial thought in the context of colonial development. London School of Economics anthropologist Lucy Mair’s chapter on land made heavy use of the stadial framework for considering “the evolution of the most suitable form of land tenure”:

Lucy Mair

In some areas land custom is changing rapidly under the influence of new conditions, such as the increase of the pressure of population or the spread of a market economy. These changes will eventually involve official intervention . . . ; the need must, for example, be envisaged for the definition and recording of title . . .

There is nothing peculiar to Africa in the general direction which the evolution of land custom is taking; its adjustment in response to economic changes is a natural process which would occur independently of any action taken by the administration. 

In Mair’s analysis, traditional, communal forms of African land tenure needed to progress to more private rights in order to encourage development:

All discussions on the subject agree as to the value of giving security to the occupier of land, and the further advantage of what is generally termed the individualization of tenures. It has been urged on different occasions that the extended system of rights, vested in the family or group, has proved in Africa to be an obstacle to improved agriculture.

Strikingly, Mair also reported on Hardin’s tragedy of the commons, avant la lettre, herdsman and all:

Those who have had to deal with East African conditions have added the . . . argument that there is little incentive to natives to reduce their live-stock in order to prevent the wastage of pasture and consequent erosion, since nothing done by the individual will avail unless his neighbours take corresponding action . . . 

Moreover, in a remarkable anticipation of later legal scholarship that highlighted potential “comedies of the commons” and “tragedies” of its disappearance,  she also warned of the advantages of common property in some situations: “The question of rights over grazing commonages presents its own difficulties; the partition of grazing grounds into small units would be a bar to the adoption of that rotational use of pasture which many hold to be the best preventive of erosion in East African conditions.”

Savagery, civilization, and property III: The commons theorists

In the last post in this series, we looked at the way early modern "stadial theory" connected between stages of civilization and property regimes. Now let us examine some of the classics of modern commons theory, noting the fondness of theorists for stories reminiscent of various aspects of stadial theory. I wish to highlight here not simply that commons theorists of many stripes tend to connect pressure on resources to property regimes, as unanimity on this point could plausibly be explained by observations of a pervasive phenomenon. It is rather the connection of these two parameters — pressure and property — with the early modern idea of civilizational stages characterized by hunting, pastoralism, agriculture, and sometimes commerce, that I find striking. Whether seeing these stages in terms of the march of Progress or a fall from Edenic bliss, nearly all commons theorists seem to be attracted to the basic narrative of stadial theory.

Garret Hardinʼs “Tragedy of the Commons” illustrated its argument against common property with a parable of a common pasture.  While neither Hardin nor William Forster Lloyd, from whom he borrowed the story, argued that society does or should progress along stages of development, their descriptions of the common pasture echoed some elements of stadial theory: shepherds have no “property” in their pastures, a characterization consistent with stadial thinking (and clearly disproved by historical work on actual common pastures).  Such pastures are subject to overgrazing, as in the story of Abraham and Lot adduced by Dalrymple.  Moreover, Hardinʼs article echoed stadial theory at several points, such as when he writes that “the logic of the commons has been understood for a long time, perhaps since the discovery of agriculture or the invention of private property in real estate,”  or in his argument that increasing pressure on resources drives enclosure of the commons:

Perhaps the simplest summary of this analysis of man’s population problems is this: the commons, if justifiable at all, is justifiable only under conditions of low-population density. As the human population has increased, the commons has had to be abandoned in one aspect after another.

First we abandoned the commons in food gathering, enclosing farm land and restricting pastures and hunting and fishing areas.

Approximately contemporaneously with Hardin’s article, Harold Demsetz published his “Toward a Theory of Property Rights.”  Here the similarities to stadial theory were yet more prominent. Demsetz, relying on the work of anthropologists who had studied native tribes of the Canadian northeast, described societies that had moved from hunting to husbandry of fur-bearing animals (husbandry being either a sort of pastoralism or agriculture). Demsetz argued that this change in subsistence methods was accompanied by a change in property arrangements — lack of private property gave way, as a response to new, commercial demands for pelts, to defined property rights in land:

Herman Moll, inset from Beaver Map (1715)

We may safely surmise that the advent of the fur trade had two immediate consequences. First, the value of furs to the Indians was increased considerably. Second, and as a result, the scale of hunting activity rose sharply. Both consequences must have increased considerably the importance of the externalities associated with free hunting. The property right system began to change, and it changed specifically in the direction required to take account of the economic effects made important by the fur trade.

While not tracking Enlightenment stadial theory precisely, Demsetz’s account overlapped with it in several respects (not at all coincidentally, as we will see): echoes of the progression hunting-pastoralism-agriculture-commerce, an accompanying shift to increasingly defined property rights, and an explanatory mechanism based on increasing pressure on the resource.  Regarding this last point, Demsetz’s consideration of externalities was markedly similar to Adam Smith’s argument that “when flocks and herds come to be reared property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer.”

Demsetz’s work was extremely influential on property theorists in the legal academy, many of whom continue to make use of the stadial paradigm. James Krier, for instance, recently advanced a modified Demsetzian account of the evolution of property rights from hunter-gatherer societies with communal ownership to agricultural ones with individual ownership.  Demsetz’s model also had major impacts on the economic literature on the commons (e.g. Anderson & Hill's "The Evolution of Property Rights" and the literature it spawned),  as well as on the “common pool resources” literature associated with Elinor Ostrom.

Perhaps less obvious, but in some respects uncannily similar to Adam Smith’s theory, is Carol Rose’s influential classification of management strategies for common resources.

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

Commons and cognition

Next up in the series of posts on "The Tragedy of the Commons at 50" (the last post is here) is the article of my co-editor for the volume, Carol Rose, "Commons and Cognition". The abstract:

Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. While Hardin viewed the herder’s attitude as identical to that of actors in many other collective action situations, the work of other commons theorists suggests several different cognitive stances among such actors, largely depending on the scale of the commons issues they face. Thus participants in the Prisoner’s Dilemma (a very small commons) would appear to be dominated by distrust rather than the hypothetical herder’s ignorance or indifference. Participants in midsized commons — such as Hardin’s herders in real life — show some distrust, but also great knowledge and engagement in common pool management. Participants in the largest-scale commons issues are actually those most likely to exhibit the ignorance and indifference that Hardin attributed to the herder. This Article discusses the ways in which these different cognitive stances track the scale of collective action “tragedies” as described by major theorists and concludes with some observations about the cognitive aspects of climate change.

Robert Axelrod, author of The Evolution of Cooperation (1984)

Indigenous peoples, political economists and the tragedy of the commons

Next in our series on "The Tragedy of the Commons at 50" (the last post is here) is Michel Morin's "Indigenous Peoples, Political Economists and the Tragedy of the Commons". The abstract:

In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal  and anthropological literature. His main lifelong focus was on limiting population growth. He could have avoided the conceptual confusion he created by turning to well-known political economists such as John Locke and Adam Smith or, for that matter, jurists, such as Blackstone. Instead, he simply envisioned indigenous lands as an unbounded wilderness placed at the disposal of frontiersmen. Though he eventually acknowledged the existence of managed commons, he had little interest in community rules pertaining to resource exploitation. For him, these were simply moral norms which inevitably became ineffective after a community reached a certain level of population. He also took economists to task for failing to include in their analysis the true environmental and social costs of public decisions. Still, the famous example of the indigenous people of Northeastern Quebec illustrates a shortcoming of his analysis: community members did not act in total isolation from each other. On the contrary, communal norms could prevent an overexploitation of resources or allow for the adoption of corrective measures.

Beaver Hunting in Canada,
from Charles Theodore Middleton’s A New and Complete System of Geography…, after Chiedel, 1777-1778
(Library and Archives Canada)

The marine "commons" discourse

Next in the series of posts (the last one is here) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'". The abstract:

Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

The banality of the Tragedy?

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law on "The Tragedy at 50", which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse.

First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin". The abstract:

The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why  The Tragedy of the Commons nevertheless quickly attained its canonical status.

On the other hand, Nathaniel Wolloch has a different view, as evidenced in his "Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources":

John Stuart Mill

This article distinguishes between the precise legal and economic approach to the commons used by Hardin and many other modern commentators, and the broader post-Hardinian concept utilized in environmentally-oriented discussions and aiming to limit the use of the commons for the sake of preservation. Particularly in the latter case, it is claimed, any notion of the tragedy of the commons is distinctly a modern twentieth-century one, and was foreign to the early modern and even nineteenth-century outlooks. This was true of the early modern mercantilists, and also of classical political economists such as Adam Smith and even, surprisingly, Malthus, as well as of Jevons and his neoclassical discussion aimed at maximizing the long-term use of Britain’s coal reserves. One intellectual who did recognize the problematic possibility of leaving some tracts of land in their pristine condition to answer humanity’s need for a spiritual connection with nature was J. S. Mill, but even he regarded this as in essence almost a utopian ideal. The notion of the tragedy of the commons in its broader sense is therefore a distinctly modern one.

Banner and Wolloch come from different disciplinary backgrounds, which may affect their understanding of what exactly the "tragedy of the commons" is supposed to mean. (I, for one, am with Banner on this.)

Now published - The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

Last June we held a conference at TAU Law to explore the history of commons thought: The Tragedy of the Commons at 50: Context, Precedents, and Afterlife. I'm happy to report that the papers have now been published in the latest issue of Theoretical Inquiries in Law, edited by Carol Rose and myself, available here. I'll post more on the individual articles later; in the meantime here's the table of contents (the issue also has a couple of additional unrelated articles not listed below):

The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin
Stuart Banner

Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources
Nathaniel Wolloch

Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty Alice Ingold

Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space
Monica Eppinger

The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”
Harry N. Scheiber

Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory
David B. Schorr

Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)
Fabien Locher

Indigenous Peoples, Political Economists and the Tragedy of the Commons
Michel Morin

Commons and Cognition
Carol M. Rose

Confronting Hardin: Trends and Approaches to the Commons in Historiography
Giacomo Bonan

Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy
Oren Bracha

Re-romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives
Amnon Lehavi

Garrett Hardin

CFP: Celebrating Commons Scholarship

An issue of Theoretical Inquiries in Law on "The Tragedy of the Commons at 50" that I am co-editing should be out in a couple of months, at which time I'll post about it. In the meantime I received this call for papers for a conference on a similar theme. Please contact the organizers if you have any questions.

Georgetown University, Washington D.C.

October 5-6, 2018

This year marks the 50th anniversary of Garrett Hardin's The Tragedy of the Commons. In one of the most cited articles of the 20th Century, Hardin provided a stylized and memorable cautionary tale of how self-interested actions can destroy common resources. However, even as Hardin's work gained traction with a broad array of scholars in many fields of study, it also garnered its fair share of criticism. Indeed, while Hardin popularized the notion of the commons, Elinor Ostrom won a Nobel Prize for her rigorous research refuting the core tenets of Hardin's cautionary tale-- namely that open access resources ultimately end in collective failure, or tragedy, and that common resources should either be regulated by central authorities or privatized.  Ostrom’s work successfully demonstrated that common natural resources—e.g.  land, fisheries, forests, irrigation systems—are collectively managed by groups of users all over the world using “rich mixtures of public and private instrumentalities.”

The “commons” is now employed as a framework to understand and rethink the management and governance of many kinds of shared resources. These include natural resources such as those studied by Ostrom, digital resources and the Internet, housing and other urban infrastructure, among others. At the heart of the exploration of these “new” kinds of commons is the recognition that Hardin’s Tragedy is a groundbreaking, though ultimately incomplete, conceptualization of the challenges posed by shared resources and the kind of governance solutions available to address those challenges. In addition to concerns about overconsumption (Hardin’s primary focus), these new human-created commons (e.g., scholarly communities, urban resources, and open-source software) pose questions about robust participation in creating, sustaining, and expanding the commons.

To celebrate this now multifaceted, multidisciplinary field of study, scholars from many disciplines will gather to discuss solutions, lessons, and challenges facing the commons and commons scholarship. This gathering will recognize that commons are as diverse as the scholars who study them--ranging from rainforests to the Internet to the city—and that field is still developing in exciting ways.  In a world as complex as ours, finding such interconnections across disciplines is extremely valuable.   

The conference will be held on October 5-6^th at Georgetown University and will be the kickoff and flagship event of “World Commons Week” activities around the world (www.worldcommonsweek.org), promoted and sponsored by the International Association for the Study of the Commons.

We invite proposals for paper presentations, thematic panels or sessions, workshops or interactive sessions, and poster presentations on research topics related to the commons and examined through the lens of a particular field or discipline.   Please submit an abstract of between 500-750 words that makes clear the relevance of the paper to the conference topic and a brief bio by June 15, 2018. Submit all materials to Chrystie Swiney, cfs23@georgetown.edu with a copy to the organizers below. Also, please be aware that there is small $50 fee to attend the conference, even if you are presenting a paper.

• Prof. Sheila Foster, srf42@georgetown.edu (Georgetown University)

• Prof. Brigham Daniels, danielsb@law.byu.edu (Brigham Young University)

Historical analysis in environmental law IV: What is to be done? - The commons, forest law, and police

At the end of the previous post in this series I argued that the history of environmental law remains in need of extensive work both in uncovering the legal roots of contemporary environmental law and in making the lateral connections between historical environmental law and other historical topics.

I would like to suggest that of these two dimensions—we might think of them as longitudinal and lateral—the first order of business should be longitudinal, deepening the temporal dimension of environmental law. We will be hard pressed to assess the significance of historical environmental law or its interactions with other areas of law and life without knowing what it was or what people thought about it. However, given that 'environmental law' is a recently coined term, where are we to look for historical environmental law? I will offer several directions of inquiry, some of them already explored by environmental and other historians, though often without the sensitivity to legal dimensions that might be expected were more legal historians to take up the task. (Not all work on historic environmental regulation is necessarily relevant to understanding the sources of current environmental law. For instance, scholars have investigated environmental regulation in Roman law and in Jewish law, but it would be difficult to claim that these ancient legal systems were the source of modern environmental law.)

One obvious place to look is to the history of that most well-worn of metaphors for environmental problems—the commons. As is well known by now, the actual medieval and early modern European commons caricatured in Garrett Hardin's parable of the tragedy of the commons were not the rule-free disaster zones he depicted, but rather highly regulated sites of interaction between humans and nature. Environmental historians have studied the laws governing the woodland and pasture commons, though not necessarily in the framework of 'environmental law' or with an eye to the type of questions a lawyer might ask of the sources. In particular, historians of environmental law might want to investigate broad issues such as the conceptions of law, justice, right, and property reflected in the commons regulations, as well as narrower ones such as the types of rules, standards, adjudicatory procedures, and remedies applied to various forms of environmental conflicts and their possible influence on later legal rules.

For instance, the principle of 'necessary use'—'that the actions of others should not deprive one of the basic materials needed to sustain one’s enterprise'—was apparently ubiquitous in early modern German commons by-laws, as it was in the rules governing water allocation in the nineteenth century western United States. It is also arguably the motivating principle behind the feasibility standard so pervasive in modern environmental regulation, which requires a polluter to use the best available technology only to the extent it is economically feasible. While a theorist might use this commonality to support a normative or positive argument about property in natural resources or pollution regulation, a historian might profitably search for the common roots of these norms or the paths through which they travelled in time and space, and the ways people justified or criticized them over time.

Moreover, legal fights against enclosure of the commons were clearly a precursor of more recent legal protections for open spaces, an alternative source to the commonly accepted stories about the Romantic and preservationist roots of this area of law, and one with a more socially-oriented tint. Investigation of the commons preservation movement and anti-enclosure movements in general are likely to yield insights into the political valence of some of the historical building blocks of environmental preservation law.

A related field demanding study is forest law. It is practically a commonplace among environmental historians that the concept of sustainability, so central to contemporary environmental law, originated in early modern forest management, and historians have shown that intensive forest regulation in Europe goes back to the medieval period. Environmental historian Richard Grove has made the connection between colonial forest management and concerns over climate change, and my own work has connected this concern to colonial forest regulation. E.P. Thompson's Whigs and Hunters highlighted the way early modern English forest law was both a tool of enclosure on behalf of landed elites and a site of resistance for commoners, and similar points have been made about English law in the medieval period. Other works have examined the historic interplay of private, common, and state property in forests and varying conceptions of conservation that were expressed in their regulation. These are all themes that continue to resonate in modern environmental debates. Further research might shed light on how forest law variously worked to preserve forests or facilitate their destruction, as well as on how this regulatory field influenced other areas of environmental law, including modern debates over the commons and enclosure.

Both these bodies of law are connected to a third, broad one (though some would deny it the distinction of being considered 'law'): so-called 'police' regulation. This flexible and capacious form of regulation, justified in terms of its promotion of good government and the common welfare, has had many points of contact with environmental issues since early modern times, through its protections for public health and safety and rules for management of natural resources.

In the next post, I'll give my take on Markus Dubber's attack on police regulation, and discuss further places to look for the history of environmental law.

Water rights III - Property in water: Theory

(Continuing the series on water rights:)

The question of how and why water has been governed by regimes of private, public, and common property has occupied scholars for some time, often in tandem with the normative issue of which type of property regime is best for the resource. 

Harold Demsetz

As in many other fields, economic analysis has proved to be a dominant theoretical lens for understanding the development of water rights, generating both direct insights and provoking trenchant critiques. On the level of positive theory, many have built on the framework of Harold Demsetz's (1967) theory of property rights, according to which property regimes progress from common to private property as the increasing value of the resource in question, or pressure on it, renders the advantages of its privatization greater than the administrative costs of establishing and maintaining a private-property regime. According to this theory, we should expect to see water regimes characterized by relatively open access or common property in societies and environments characterized by an abundance of water, and increasing reliance on private rights as pressure on the resource increases. An influential work in this tradition is Anderson and Hill (1975), which posits that the abandonment of a common-property regime (riparian rights) in favor of private rights (the prior appropriation doctrine) in the American West was a result of the region's aridity and consequent pressure on the resource. 

Economic analysis has also developed a normative critique of existing systems of water rights. Beginning with the work of Milliman (1956, 1959) and others, many scholars have argued that common property in water leads to waste, inefficiency, and depletion of the resource. The solution, according to this line of argument, is the creation or recognition of completely specified private property rights in water, rights that will allow the functioning of an efficient market that will move water to its most valuable uses and create incentives to avoid waste (Charles J. Meyers & Richard A. Posner (1971) Market Transfers of Water Rights: Toward an Improved Market in Water Resources. Arlington: National Water Commission; Terry L. Anderson (ed.) (1983) Water Rights: Scarce Resource Allocation, Bureaucracy, and the Environment. Cambridge: Ballinger). This sort of argument has obviously resonated with Hardin's (1968) famous article on the tragedy of the commons, and also fit in well with general enthusiasm for market solutions to policy issues in recent decades. It continues to be advanced in various contexts, such as with regard to water rights in China (Speed, 2009).

Yet other theorists have questioned the above conclusions, both positive and normative.

More on forests in revolutionary France

Vallée de La Loue - ©CRT de Franche-Comté

H-Environment just published a roundtable review of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015), previously covered here. Some legal highlights, starting with Caroline Ford's comments:

The book is based on a wealth of archival material and primary documents that Matteson found in both national and provincial archives in France. She sorts through and illuminates very technical modes of forest management, while setting the scene for conflicts between local communities and the French state in masterful ways. She seeks to explore reform efforts on the part of the state as well as the ideological agenda of lawmakers, landowners and commentators in order to explore both the successes and failures of natural resource allocation and environmental conservation in the context of sweeping revolutionary change and the expansion of state power. She examines a number of important questions in this regard including why conservation policies prompted resistance; and how customary rights were supplanted by those of private property. To this extent she resuscitates a debate, which has recently again become the focus of some attention among environmental historians in France on the “tragedy of the commons,” which was sparked by Garrett Hardin’s 1968 article in Science and Elinor Ostrom’s rebuttal (among others).

*****

The great strength of Matteson’s close study of the Franche-Comté lies in grounding her work in a micro context, in a specific time and place. She shows the very real impact of policies enacted in the capital on a rural region of France, but one wonders how and whether imperial conquest that began during the period which she explores and French encounters with other forested landscapes shaped (or did not shape) policy in the metropole, a subject explored in Richard Grove’s path-breaking Green Imperialism. Matteson mentions, for example, that the French forest code was exported wholesale to Algeria at the time of conquest, where conditions were far different from those in metropolitan France. Many foresters served in both France and in her colonial possessions. This code was finally revised in 1903, and one wonders about the extent to which foresters considered and compared colonial and metropolitan forests and landscapes. 

***** 

Finally, calls for saving forests came from other quarters and were articulated less in terms of conservation than in terms of heritage preservation and patrimoine. These calls came not from engineers, scientists, or foresters but from a middle class urban public. It was the Barbizon school of painters who were behind Napoleon III’s 13 August 1861 decree that created the first protected natural landscape in the forest of Fontainebleau as a réserve artistique, and the painters fought pitched battles with foresters, who defended their own conservationist initiatives, such as planting pines. Both made claims about protecting the forest, but in very different ways.

The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

Update: the published papers from this conference are available here

A call for papers for a conference and journal issue I'm organizing, with the help of my distinguished teacher, Carol Rose. Please pass it on!

Conference and Special Issue:
The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

On the occasion of the 50^th anniversary of the publication of
Garrett Hardin's "Tragedy of the Commons"

Cegla Center for Interdisciplinary Research of the Law

with the support of

David Berg Foundation Institute for Law and History

GlobalTrust: Sovereigns as Trustees of Humanity

S. Horowitz Institute for Intellectual Property

Buchmann Faculty of Law

Tel Aviv University

June 28-30, 2017

Call for Papers – due 1 March 2016

            Few modern publications—or indeed ideas—have been as influential for the development of law, political science, economics, or environmental studies as Garrett Hardin's "Tragedy of the Commons", his blockbuster 1968 article in Science magazine. The notion of ownerless resources being inexorably and inevitably subject to overuse and degradation, illustrated through a parable of a common pasture consciously grazed to oblivion by herdsmen, proved to be a gripping one. It has seemed to explain or justify problems and solutions from areas such as population control, ownership of and sovereignty over natural resources, pollution, and cultural and technological innovation, and it has remained a dominant trope in many fields in and outside law since its publication. Of course Hardin's idea has not gone unchallenged, and recent decades have seen a wealth of scholarship dedicated to refuting or modifying the "Tragedy" thesis and identifying or advocating countervailing and related effects.

            Like all ideas, the idea of the "Tragedy" has a history and a context, the exploration of which is the object of this conference. Precedents in economic writing of the 1950s have been pointed out, and Hardin's article itself acknowledged his debt to a nineteenth-century "mathematical amateur". The aim of this conference and special issue is to go beyond these immediate and explicit intellectual sources and explore three themes in the history of the idea of the tragedy of the commons (the functioning of actual commons in history remains outside this conference's scope):

1. The idea of the commons in history: The idea of "the commons", whether communally owned or accessible to all, is one that lawyers, economists, political theorists, and others have written about for centuries. Some, like Hardin, were alarmed by it; other valorized it; yet others saw it in a more complex light. We aim to excavate new layers of the intellectual antecedents of Hardin and his opponents, within the Western tradition as well as outside it, and understand the historical contexts in which these earlier ideas and texts were produced.
2. Hardin's world: Not only did Hardin not write in an intellectual vacuum; "Tragedy" was written in a specific time and place, and in a certain political, ideological, cultural, and social environment. We seek to illuminate the contexts that might explain the particular circumstances in which "The Tragedy of the Commons" was written, published, and popularized.
3. The Tragedy's career: Half a century after the publication of Hardin's article, its reception, revision, and rejection already have histories. We wish to understand better the enthusiasm with which the idea of the Tragedy has been embraced, as well as the intellectual, ideological, and political sources and attractions of alternative approaches, most prominently that of Elinor Ostrom's school of commons studies. 

One-page proposals addressing any aspect of the above themes are welcome. Accepted articles will be published, after peer review, in a special issue of Theoretical Inquiries in Law, the TAU Cegla Center's prestigious journal.

Accommodations in Tel Aviv will be provided by TAU, and participants will have their reasonable travel expenses reimbursed.

Timing:

• One-page abstracts accompanied by a brief c.v. should be sent to cegla@post.tau.ac.il by 1 March 2016.
• Notices of acceptance will be sent by 1 April 2016.
• In order to allow pre-circulation and preparation of comments, draft articles will be due by the end of May 2017.
• The conference will take place in Tel Aviv June 28-30, 2017.
• Final drafts will be due by the end of August 2017.
• After peer review and editing, the special issue of Theoretical Inquiries in Law will be published in July 2018.

Nahalal collective village, Israel (c. 1930?)

Whaling, international law, and the fisherman's problem

The University of Washington Press recently published Kurkpatrick Dorsey's Whales and Nations: Environmental Diplomacy on the High Seas. Relating the book to earlier work by Garrett Hardin on the tragedy of the commons and by Arthur McEvoy on the history of fisheries regulation, William Cronon writes in the foreword:

There is... [a] problem that McEvoy, writing mainly about fisheries in California, did not need to address at length. Wild animals do not honor national boundaries. Moreover, such boundaries are especially challenging to define and defend in the waters of the open ocean, which is why they have so often been a source of international conflict. If the tragedy of the commons is best solved by state intervention—whether through regulation or the creation of property rights—uncertainties about the effectiveness of state power in maritime environments mean that the challenge of avoiding the fisherman’s problem is not merely economic, but legal, political, and diplomatic as well.

This is why Kurk Dorsey’s book... is such an important contribution, with implications that are as far-reaching as McEvoy’s and Hardin’s. 

*****

Dorsey complicates the story by reminding us that people bring to markets a host of different backgrounds and values combined with national interests and identities. It is these as much as abstract economic logic that shape their behavior relative to the natural resources they harvest. When an environmental challenge becomes truly international in scope, these different values and national interests must be analyzed in all their subtle intricacies if we are to have any hope of shaping economic and political behaviors that can otherwise frustrate even the most well-intentioned efforts to build more sustainable human relationships with the earth. 

The Malthusian Moment

As H-Environment is re-posting all their old roundtable reviews, we'll be noting some of them here. Today I'd like to note the rich and fascinating discussion of Thomas Robertson's The Malthusian Moment: Global Population Growth and the Birth of American Environmentalism (Rutgers UP, 2012). Said "moment", with its concerns about finite resources insufficient to support a growing world population, supplied at least some of the intellectual background to the new American environmental legislation of the 1960s and '70s, and included classics such as Garrett Hardin's "Tragedy of the Commons".

An example of the interesting roundtable commentary, here from Saul Halfon:

...modern Malthusianism, often referred to as neo-Malthusianism, is not synonymous with Malthus’s original theory, which was focused more narrowly on food and England, and bound tightly to an existing theory of class. Malthus also understood birth control as a moral vice and as a detriment to capital and so preferred the inevitability of population boom and bust among the lower classes (Perelman 1979). Neo-Malthusians by contrast are a decidedly interventionist bunch, particularly when it comes to reproduction, and they conceptualize natural limits in a much expanded way. Nevertheless, this position remains associated with Malthus because of its continued focus on natural limits in relation to geometric population growth.

Thus, in the age of ascendant liberalism throughout the post-war period, the traditionally conservative Malthusian position took on the mantle of interventionist, progressive radicalism, challenging the very premise of growth and progress by appealing to a naturalistic argument about limits. This position appeared at first to align well with post-Marxist interventionism which was similarly challenging liberal and capitalist growth models. The progressive branches of both movements supported greater social equality, particularly for women. The weak coalition between these two sets of actors, however, was fractured by concerns over coercion, immigration, and racism as the post-Marxist focus on social justice and distribution of wealth encountered the non-negotiability of a neo-Malthusian emphasis on natural limits. From this macro-political frame, Robertson’s story sheds new light on how the focus on limits managed to gain a foothold in the otherwise solidly liberal progressivism of post-war America, laying part of the groundwork for modern environmentalism, and how liberalism was ultimately reasserted.

Teaching the history of law and the environment

I’d like to thank David Schorr for inviting me to post my thoughts on teaching law and environmental history, and for his work in developing this blog, which I have found to be a vital resource for keeping up-to-date on this rapidly developing field.

“Legal Issues in Environmental History” was a course description developed by the New Jersey Institute of Technology’s innovative undergraduate program in Law, Technology, and Culture, headed by legal historian Alison Lefkovitz. The goal is to teach students how humans have regulated and managed the natural environment in North America from the colonial period to the present. 

By looking at the evolution of environmental rules from customary use rights to modern state-based regulation, students learn how ideas about nature, law, and the market have changed over time. Hopefully, they leave the class with a better sense of the possibilities and pitfalls that surrounded the federalization and, increasingly, the globalization of environmental law.

I’ll start this discussion by suggesting what the course doesn’t do. As you can see in the syllabus, the course tries to avoid a teleological history of federal environmental law that follows a path from the shortcomings of local governance to the virtues of a national system. Instead, it assumes that people in each period of American history we study had particular rules about environmental management and analyzes how these practices were grounded in the social, cultural, political, and economic conditions of their time and place.

As a result, the course steers away from instrumentalist explanations for changing practices of governance. I use historical examples to introduce important theories about legal and environmental change (Marxism, the “Release of Energy,” or the ever-popular “Tragedy of the Commons”), but leave it to the class to decide whether the facts support these approaches.

Frank Leslie's Illustrated Newspaper, Aug. 13, 1859
(from Ted Steinberg, Down To Earth (2002), 161)

Finally, using Dirk Hartog’s classic article "Pigs and Positivism" (1985) as our theoretical starting place, I try to shift the conversation away from sharp lines between “law” and “custom” and toward questions about nature and power. As a result, the course integrates topics, such as labor history or the role of gender and race in shaping law, that ordinarily get left out of environmental history courses focused on land use, pollution, and resource extraction. It also leaves space to discuss non-elite views of law and nature.

In an upcoming post, I’ll write about some of the topics discussed in the class and the theoretical and practical problems of teaching them.

[Links to all of Adam's posts are here]