Nazi legislation against animal cruelty

From Sydney Criminal Lawyers, on Lexology (via Legal History Blog): "The History of Laws Against Cruelty to Animals". A particularly interesting section discusses the Nazis:

There can be no words to sufficiently encapsulate the appalling atrocities perpetrated by one of history’s most evil people, Adolf Hitler, and his fascist Nazi party.

And one must take special care before giving credit for any act to the person at the helm of history’s most disgusting and shameful political, social and cultural regime, whereby millions of innocent men, women and children were tortured and murdered, including the systematic use of humans for medical experimentation, annihilation of ‘undesirable’ groups in society including the disabled and slaughter of large segments of targeted racial and religious groups.

Hitler and his extreme right-wing party exemplified the very worst of humankind, and the regime’s ultimate demise was a Godsend to all moral people.

But the irony must also be acknowledged that while on the way to murdering millions of human beings, the famously vegetarian and dog-loving Hitler took unprecedented steps to protect non-human animals from cruelty. And many of the enacted laws go way further than present day legislation.

In that regard, 24 November 1933 saw the German parliament (the Reichstag) the under the Chancellorship of Hitler and Presidency of Hermann Göring) pass the Reichstierschutzgesetz, or Reich Animal Protection Act, which is listed in the above table.

The law imposed a total ban on the almost-universally accepted, and even encouraged and publicly funded, practices of vivisection (operating or experimenting on live animals) and slaughter of animals without anaesthetic.

In a 1933 speech approved by Hitler, Göring declared an end to the “unbearable torture and suffering in animal experiments” and warned that those who “still think they can continue to treat animals as inanimate property” would be sent to concentration camps.

The regime saw a range of further prohibitions to protect animals including bans on animal trapping, the boiling of crustaceans such as crabs and lobsters, live baiting, neglect and cruel acts to domestic animals, and severe restrictions on hunting.

And so it was – perhaps history’s most evil regime was ironically perhaps the most benevolent in the treatment of non-human animals.

This is just one one section of the long post, which includes a chronology of developments and a discussion of Australian law. 

Sustainability and the history of knowledge

The Journal for the History of Knowledge recently published an article by Sebastian Felten, "Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines". The abstract:

A late-eighteenth-century encounter between Dutch merchants and cameralist Saxon officials is used to argue two related points. First, the history of knowledge can help us rethink hierarchical power structures like the Saxon mining bureaucracy. Mine owners had a right to information and could not be forced to pay contributions, which meant that mining officials were solicitous in sharing knowledge, fretted about investors’ favor, and took their desire for revenue into consideration. These observations directly challenge the traditional absolutist image of the Saxon mining bureaucracy. Second, the history of knowledge can help explain how certain rationalities (that is, combinations of means, ends, and values) came into being. Saxon officials sought to situate short-term income and expense in a success story that spanned decades and centuries. Informed by the concept of Nachhalt (sustainability), Saxon officials saw profit even in mines that lost money. This kind of sustainability thinking is best explained via the archival practices of the mining bureaucracy: officials collected information from yield sheets and local lore in order to calculate long-term outputs, to speculate about untapped deposits, and to disburse as little profit as possible. When the Dutch eventually understood this rationality, they withdrew. Saxony’s early modern mining bureaucracy was dismantled by liberal reforms in 1850s, but its peculiar brand of sustainability, aiming to extract resources at almost all costs, likely survived the dawn of industrial capitalism as young engineers and administrators became versed in it at the Freiberg Mining Academy.

For a different take on the origins of German sustainability thought, see Peter Sand's post here. 

Star vaulting on the ground floor of the Saxon Mining Office, Freiberg
(photo: Norbert Kaiser)

Rhine river governance

The law of the Rhine River seems to be a fruitful topic (see here and here). The latest Water History has an article by Jennifer Schiff, "The evolution of Rhine river governance: historical lessons for modern transboundary water management". The abstract:

Transboundary rivers pose significant governing challenges to state actors, as riparian stakeholders struggle to balance their own interests in a critical resource against those of their neighbors. To that end, a case study of Europe’s Rhine River is illustrative, as it provides a strong historical example of shared water management. Indeed, the Rhine experience suggests at least two universal lessons that modern riparian actors the world over would do well to consider when balancing shared riverine interests. First, that transboundary water cooperation is supported by a shared historical legacy of water governance, suggesting that, if a governing regime does not yet exist, riparian actors should purposefully create one in anticipation of future coordination issues. Second, the case of the Rhine demonstrates that an acute environmental crisis is not a necessary condition for intensive shared riverine governance, and instead, it is extant historical collaboration that leads to later effective crisis coordination.

Environmental timelines

A while back Environmental History carried a review by Daniel Simberloff of Ian Rotherham's Eco-history: An Introduction to Biodiversity and Conservation (White Horse Press, 2014). Simberloff notes:

The high point of Eco-history is a remarkable 42-page “Timeline,” detailing in linear fashion 224 key points in the history of British nature conservation from AD 1000 to 2000: laws especially, but also extinctions, introductions, establishment of nature reserves and environmental organizations. Rotherham concisely lists the impacts of each event, with further explication for about half of them. This section alone could be published as a short book that almost any environmental historian would value.

I don't think they're related, but there's also a very elaborate website called "Environmental history timeline", itself packed with little known nuggets of environmental-legal history, such as the fact that in 1970 US President Richard Nixon "issued an executive order... requiring industries to obtain a federal permit before dumping wastes into U.S. waterways or face criminal charges. This was the beginning of the US National Pollution Discharge Elimination System (NPDES) permitting process." Or that in 1779

Johann Peter Frank (1745-1821), writes A Complete System of Medical Policy in Germany advocating governmental responsibility for clean water, sewage systems, garbage disposal, food inspection and other health measures under an authoritative “medical police.” This idea was well received and influenced policy in Germany, Italy and other nearby nations. The authoritarian approach did not sit well with the French, British or Americans, where direct government controls developed only in areas of specific problems such as communicable disease and sanitation.

There's a lot more in this timeline, worth perusing and bookmarking.

Gorsuch and Hamburger

A few months ago we noted some of the environmental dimensions of Philip Hamburger's revisionist account of the history of administrative law. Now Eric Posner points out some contemporary relevance of Hamburger's controversial views (thanks to Legal History Blog for flagging the post, and to Eric for approving the re-post):

Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?

Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.

I do not think that this vision is acceptable to the public, or really anyone, not even business, which says that it opposes regulation but in fact depends on it more often than not. But his view is an appealing fantasy, and it has excited the conservative legal community. It’s much easier to say “it’s all unconstitutional” than to explain why this regulation or that one is unwise or illegal.

In rereading Hamburger, I am struck by three themes, which resonate with our political times.

In memoriam: Wolfgang Burhenne

January 6 saw the passing of Wolfgang Burhenne, a key figure in post-war German and international environmental law, at age 92.

A review by Tracy Mehan in the Environmental Forum earlier this year tells explained that Burhenne spent much of World War II imprisoned by the Nazis for aiding the resistance. Then, after the war:

through an unpaid engagement with a hunting club, he eventually obtained employment with the hunting administration of the Free State of Bavaria. There he became involved in hunting legislation. And so his passion became the preoccupation of his professional life. Hunting shaped his ideas on sustainability, i.e., “use natural resources in a way that allows full recovery.” “Sustainable use is a principle I have always known from hunting,” maintained Burhenne.

Burhenne and his second wife, Françoise, were “directly involved in nearly all major international conventions concerned with conservation over the past 25 years, and the development of the World Conservation Union (IUCN) Environmental Law Center in Bonn,” as described by the United Nations Environment Program when awarding them the UNEP International Environmental Prize in 1991. “No two people have done more to strengthen the position of international and national environmental law as a fundamental element of environmental management,” according to the citation....

Wolfgang Burhenne was a highly successful policy entrepreneur and the node connecting several nongovernmental organizations and foundations, some of which he basically created from scratch. His wife provided the intellectual ballast while he forged the alliances, negotiated the treaties and raised the money. Together they worked on countless drafts and treaties that are the foundation of much of international environmental law, among them the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1979 Convention on the Conservation of Migratory Species of Wild Animals, the 1982 UN World Charter of Nature, the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources, and the 1992 Convention on Biological Diversity.

Bartolus on the Rhine

I recently noticed that the Lawbook Exchange catalog from a couple of years ago featured an interesting 1733 book on water law, with the intriguing Latin-German title Tractatus Juridicus de Alluvione, Insulis, Alveo & Jure Aquatico. oder vom Wasser Recht..., by Bartolus and Noe Meurer. Here's what the catalog had to say:

Final edition. First published in 1570, this is a legal study of rivers. It is grounded in an analysis of the Tractatus de Fluminibus by Bartolus of Saxoferrato. Meurer applies this analysis to issues concerning the Rhine and other waterways. As suggested by the frontispiece, he is concerned with navigation, fishing rights, alluvial rights, irrigation and motive power (for water wheels). A useful and well-received work, it went through ten editions.

Sustainability: of forests, ships, and law

[Another guest post, with lots of useful references, by Peter Sand of the Institute of International Law, University of Munich (see here for his earlier post on Karl Neumeyer). Revised from Environmental Policy and Law 37:2-3 (2007) 201-203. Notes are after the break.]

“Sustainable development” has become a household word – if a heavily loaded one – to international lawyers, economists and green politicians alike. Yet, the etymology of the term spans a number of other disciplines, and more than three centuries of environmental history.

The Report of the ‘Brundtland Commission’, published in 1987,[1] had borrowed the term from the 1980 IUCN/UNEP/WWF World Conservation Strategy, drafted under the guidance of the then Director-General of IUCN, Dr. David A. Munro (left) – distinguished Canadian forester and wildlife biologist (1923-2004).[2]

Canada’s oldest forest school is the Faculty of Forestry at the University of Toronto. Its founder (in 1907), and first dean until 1919, was a German forester, Bernhard Eduard Fernow (1851-1923) – who from 1886 to 1898 had served as the first chief of the US Division of Forestry (which later became the Forest Service within the Department of Agriculture).[3] Fernow was the architect of the 1891 Forest Reserve Act (part of the General Public Lands Reform Act of 3 March 1891), which laid the ground for ‘creative’ conservation measures on the federal public domain – and it comes as no surprise that he had originally studied law (at the University of Königsberg).[4] His successor as US chief forester was Gifford Pinchot (PhD in forestry, University of Munich 1898; founder of the Yale School of Forestry in 1900, now School of Forestry and Environmental Studies),[5] whose mentor and role-model had been another German forester, Sir Dietrich Brandis.[6] Brandis, after obtaining his PhD in botany at the University of Bonn, had joined the British colonial service in 1856 as ‘superintendent of forests’ in Burma, and from 1864 to 1883 served as first Inspector-General of Forests in India and Pakistan.[7] He was Rudyard Kipling’s legendary “gigantic German, head of the woods and forests of all India, head ranger from Burma to Bombay”.[8] His practices and principles of ‘sustained yield’ forest management – and those of his successors, Sir William [Wilhelm] Schlich (1840-1925, founder of the Royal Indian Forestry College at Cooper’s Hill, since 1905 at Oxford)[9] and Berthold Ribbentrop (1843-1917, Inspector-General of Indian Forests from 1885 to 1900)[10] – had a lasting influence on generations of foresters in North America, Asia, Australia and New Zealand.[11]

The theoretical basis for forest management, including the concept of ‘sustained yield’, had been developed in the 18th and 19th century at specialized forestry academies in Germany, such as Tharandt in Saxony and Münden in Hanover (where both Fernow and Ribbentrop graduated).[12] The pioneering scientific treatise on the subject was the ‘Sylvicultura Oeconomica’ (at top) published in 1713 by Johann [Hannss] Carl von Carlowitz (right, 1645-1714),[13] lawyer and manager of the Duke of Saxony’s silver mines (hence vitally dependent on long-term timber supplies!). It comprised the first formulations of such ‘post-modern’ terms as precaution [Praecaution, Vorsorge] for intergenerational benefits [den Nachkommen zum Besten], by sustained use [nachhaltende Nutzung]; and it was followed by other works now postulating a general policy of sustainable forest economics [nachhaltige Wirtschaft mit unseren Wäldern].[14]

Carlowitz in turn had drawn the inspiration for his innovative policies from multiple sources. After completing his legal studies at the University of Jena, he had taken the customary ‘grand tour’ of Europe in 1665-69, travelling to Italy, the Netherlands, Scandinavia, England and France. A focus of his attention at the time were the administrative reforms undertaken by Louis XIV’s powerful minister of finance, Jean-Baptiste Colbert (1619-1683, right); in particular, the great reorganization of French forestry governance which culminated in the ‘Ordonnance des eaux et forêts’ of 1669.[15] 

It must be kept in mind, though, that Colbert’s own concern for the conservation and sustainable use of France’s forest resources had very precise strategic motivations; i.e., the long-term security of timber supplies for the ship-building industry, which was the basis of French naval power.[16] Sure enough, there had been ominous historical warning signals before: The decline of Venetian maritime dominance in the Mediterranean during the 16th and early 17th century was widely attributed to timber shortages in naval construction, caused by deforestation.[17] It was no coincidence, therefore, that another contemporary pilot text which Carlowitz acknowledges among his source references – Sylva: A Discourse of Forest-Trees, and the Propagation of Timber in His Majesty’s Dominions (1664), by John Evelyn (English lawyer and writer, 1620-1706, educated at Oxford’s Balliol College and the Middle Temple, right)[18] – had been compiled and published at the request of the Commissioners of the British Navy.  After the Napoleonic Wars, Isaac D’Israeli noted that the fleets of Admiral Nelson had been constructed “with the oaks which the genius of Evelyn planted.”[19] For the same strategic reasons, Russian Tsar Peter I in 1703 had designated the oak forests of Kharkov and Simbirsk as permanent state reserves for ship timber;[20] and in 1817, the US Secretary of the Navy obtained statutory authorization to reserve public oak forest lands for ship-building.[21]

In retrospect, then, the concept of ‘sustainable development’ may indeed be said to have its historical roots in subtle power politics as much as in bona fide intergenerational equity.

Art and the history of environmental law - part IV: Art and the conditions of environmental law (twentieth century)

Following Part III of this series, featuring the French Impressionists and Oscar Wilde, we move on to the twentieth century.

Franz Marie Jansen, untitled, from Industrie, 1920

In the first half of the twentieth century, air pollution seems to take on a progressively darker cast, both literally and figuratively. While it is difficult to read the pollution in many posters of the interwar era, such as one for the 1925 Paris Exposition Internationale des Arts Décoratifs (above), as anything but a symbol of progress, in the works of the German Expressionists such as George Grosz and Franz Marie Jansen (right), pollution often seems an inseparable part of their generally bleak world view.

George Grosz, Outside the Factories, 1921

Beyond the cultural and aesthetic, American art in this period also seems to begin to engage with pollution as a political issue, and thus potentially a legal one. An early but suggestive understanding of pollution is offered by the symbolist Elihu Vedder’s mural Corrupt Legislation (below) created for the new Library of Congress building around 1898. Art historian Richard Murray explains:

Property in the Prussian forest

The recent issue of Environment and History had a review by Charles Closmann of Jeffrey K. Wilson, The German Forest: Nature, Identity, and the Contestation of a National Symbol, 1871-1914 (U. Toronto Press, 2012). After discussing the book's treatment of German cultural attitudes to the forest, Clossman writes:

Subsequent parts of the book examine debates about how to manage Germany’s forests. Drawing from minutes of the Prussian Landtag, Wilson shows how conservative landowners supported what they considered to be modern definitions of property rights in debates over an 1880 Prussian Forest Law. On the other side, left liberal critics supported the public’s traditional right to wander freely in the woods, collecting timber for fuel, gathering berries, and picking mushrooms. A subsequent chapter traces debates over Berlin’s Grünewald, with Wilson demonstrating again how left-liberal and some working class critics demanded that the Prussian state preserve a major forest in the city’s outskirts. In this case, enthusiasm for a beloved forest stemmed not from irrational anxiety about modernity, but in part from a desire to enhance recreational opportunities for the working class. Wilson notes, ‘The struggle to protect the Grünewald demonstrates the rational and progressive aspect of the forest discourse’ (p. 131).

Support for forest preservation also came from the state, for different motives. In chapter five, Wilson shows how Prussian state foresters attempted to restore the degraded forests of the Tuchel Heath, in the Prussian East. In this case, state officials intended to scientifically manage the region’s forests and to discipline what they saw as an ethnic Polish population desperately in need of German Kultur. A dramatic story of heroes, thieves and frustrated officials, the story of the Tuchel Heath is well-supported with documents from German and Polish sources, and with lively illustrations from Oskar von Riesenthal’s Bilder aus der Tucheler Heide. 

See here for an earlier article by Wilson on a similar subject. For more on German working-class environmentalism, see here.

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. 

Water and public spaces in Weimar-era Berlin

A pernicious myth has it that environmental protection and conservation are a sort of upper-class conspiracy, or at the least a luxury appreciated by the well to do. An H-Urban review by Eliza Martin of Matthew Gandy's The Fabric of Space: Water, Modernity, and the Urban Imagination (MIT Press, 2014) discusses the book's treatment of water in interwar Berlin ("Weimar Berlin" is evocative but confusing), showing that in this context, as in many others, proto-environmentalism was a working-class issue. Martin writes:

Gandy asserts that examining the changing paths water takes through urban spaces gives us new ways of viewing and understanding cities and how they evolve. He is particularly interested in the process of modernization of urban space, and the role water infrastructure plays in that activity. Gandy states that controlling water is a key aspect of modernization and state formation...

*****

Gandy... demonstrates [the] movement towards an emphasis on nature as leisure, when he discusses changes in urban planning taking place in Weimar Berlin. As part of creating a modern city, Martin Wagner, city building commissioner in Berlin, was concerned with providing residents, especially working-class residents, with an opportunity to have contact with nature. Wagner felt one way to do this was to provide access to local lakes and rivers as spaces of leisure. Wagner moved to protect remaining lakeside land from privatization to keep these areas open for the city as a whole, as a public resource, and provided public transportation to these areas. Here we see links between water and infrastructure as not purely a public health issue, but also as about democratizing access to urban space, and offering working-class Berliners the chance to enjoy urban nature. 

Rechtstaat and Recht in the German nuclear power debate

The latest Law and History Review has an article by Michael Hughes, "Rechtsstaat and Recht in West Germany's Nuclear Power Debate, 1975–1983".  The article begins:

Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate. Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.

Hans Weingartz,
Anti-AKW-Demonstration auf dem Bonner Hofgarten am 14. Oktober 1979

Nonjurists could also clash over the meanings of Recht and Rechtsstaat, as West Germans did in vigorous, often militant, clashes over nuclear power in the 1970s and 1980s. For proponents of nuclear power, Germany's economic future and the viability of the legal-political order were at stake in efforts to implement energy-policy decisions that had been reached democratically and according to legal and constitutional norms. For opponents, the life and health of current and future generations and the maintenance of a free society were at stake in preventing the construction of dangerous nuclear facilities, even if the political and legal processes had formally approved them. Germans on both sides of the issue appealed to Recht and the Rechtsstaat, but they did not agree about what that meant in practice. And whereas those citizens often replayed scholarly disputes, disputes over the Rechtsstaat and Recht were not for them purely academic exercises, but rather vital elements in a struggle in which, they believed, the stakes were life or death, freedom or oppression. And because Recht and Rechtsstaat were and are so complex, West Germans (individually and in association) had to choose among varying conceptions, often out of conviction but sometimes out of expediency.

Holy property and the Prussian forest

More on conflicts over property rights in German forests: February's Environment and History had an article by Jeffrey Wilson, "'The holy property of the entirety of the people': The Struggle for the 'German Forest' in Prussia, 1871-1914". The abstract:

Wilhelm Heinrich Riehl (1823-1897),
 demanded the preservation of
public access to the ‘German forest’

During the nineteenth century, German intellectuals articulated the notion that the nation's identity and social peace were rooted in public access to its forests. In the late nineteenth century, however, the Prussian state sought to tighten property laws, allowing landowners to exert more control over their property and exclude interlopers. First liberals and Catholics, then conservative agrarian reformers and radical nationalists, responded with hostility to these efforts, challenging landowning elites. Whereas the romanticisation of the 'German forest' has long been seen as an expression of landowners' efforts to manipulate national sentiment, these developments illustrate the complicated relationship between nature and nation in the late nineteenth century.

More on early modern water law treatises

In response to my desire to hear more about the water law treatises described in Mark Weiner's video, "Water, Paper, Law", Yale Law's Rare Book Librarian Mike Widener (featured in the video) has posted information on the books featured in the video. These include a treatise by the great medieval jurist Bartolus and other works on Italian, German, and Dutch water law.

The page below is taken from a 4-volume Italian treatise on Roman water law, published originally 1670-86. Stay tuned for more on Mike's work on these interesting books.

from Francesco Maria Pecchio, Tractatus de aquaeductu (2nd ed., Ticini Regii, [1700?]-1713)
Rare Book Collection, Lillian Goldman Law Library, Yale Law School

Timber and lord-peasant relationships

We commented last year on Paul Warde's article on commons regulation in early modern Germany, which gave English readers a taste of the vast German literature on the subject. Takashi Iida's Agricultural History article from last year, "The Practice of Timber Granting from Lords to Peasants: A Forest-Historical Perspective of the Gutsherrschaft in Brandenburg-Prussia from 1650 to 1850", gives a similar glimpse into the literature on forest regulation, with regulation coming in various legal forms, including feudal relationships, statutes, building codes, and royal patents. The abstract:

Anton Graff, Frederick the Great

In early modern Brandenburg-Prussia, feudal lords (Gutsherren) were primarily the owners of both large estates that required peasant labor and large forests from which they were obligated to supply their peasants with life's necessities. This paper examines the practice of timber granting to peasants in the sovereign demesnes of the Kurmark Brandenburg from 1650 to 1850. To challenge the general understanding that peasants both remained dependent on timber grants and abused them until approximately 1800, this paper investigates the increases in peasants' share of the building costs for their farmsteads and the positive effects of timber regulations in the eighteenth century, including self-regulation by peasants. In addition, while previous studies have accentuated the peasants' thefts of wood after losing their entitlements to the lords' forests due to the reform legislation of the early nineteenth century, this paper presents cases in which peasants successfully retained their entitlements, gained payment for timber grants, or afforested their own land.

Regulation of the commons in early modern Germany

The latest Environment and History has a very interesting article by Paul Warde, "Imposition, Emulation and Adaptation: Regulatory Regimes in the Commons of Early Modern Germany". There seems to be a quite substantial German-language literature on early modern commons and police regulations, two topics that should be of great interest to those interested in the interactions of law with the environment in history, and Warde's article, among its other virtues, gives Anglophone readers a taste of the field.