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. 

Bounties and land-use regulation

Jack Whiteley recently posted "Property in Wolves", forthcoming in the Cornell Law Review. The abstract:

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

Note: Apparently bounties are still with us, as can be seen in the recent poster below. 

(Boise State Public Radio)

The various reasons for killing wolves

Pieter Serwouters, Wolf hunting (1642)

The journal Environment and History just posted an article by Kristiaan Dillen, "The Various Reasons for Killing Wolves in the Fifteenth-Century Liberty of Bruges". The abstract:

In the fifteenth-century Liberty of Bruges, a rural castellany in the county of Flanders, a bounty system was established to promote the elimination of wolves. Prize money made the wolf not only an unwanted but also an actively tracked animal, a combination that resulted in its wholescale slaughter. Researchers who have previously examined these bounties believed that they were primarily part of a system of pest control. They did not realise, however, that the inhabitants who came forward to claim the bounty killed wolves not to clear the Liberty of Bruges of vermin but for entirely different reasons, which depended on the context in which encounters with wolves occurred. In this text, I use the records concerning the bounty system established by the Liberty of Bruges to understand the complex relationships between humans and wolves in this fifteenth-century castellany. I first introduce the long series of records; thereafter, I attempt to identify reasons for killing wolves in the Liberty of Bruges and the contexts in which such killings occurred.

And from the conclusion:

Was the establishment of the bounty system indeed a sign that the wolf was not wanted? Judging from the long series of data from the accounts of the Liberty of Bruges, we can conclude that killing a wolf often also meant the opposite, as doing so signalled noble status and provided additional income. Thus, it is not entirely correct to regard the slaughter of wolves merely as a form of pest control or, as it is referred to today, a type of ‘management hunt’. Wolves were unwanted but ostensibly respected. In contrast to the attitudes towards other animals, such as crows or pigs, which were kept out of fields or cities by means of a system of fines, not bounties, people’s behaviour towards wolves was not regulated and corrected.

The U.S.–Japan dispute over the whaling moratorium

A recent issue of Diplomatic History published an article by Masaru Nishikawa, "The Origin of the U.S.–Japan Dispute over the Whaling Moratorium". The article begins (footnotes omitted):

On December 26, 2018, the administration of Japanese Prime Minister Shinzo Abe announced it would end its participation in the International Whaling Commission (IWC). While Japanese national parliamentarians who belonged to the pro-whaling caucus welcomed the decision to resume commercial whaling, the decision faced condemnation. For example, the New York Times noted that Japanese authorities ought to reconsider the decision as “[w]ithdrawing from the whaling commission for short-term political gain is a dangerous and foolish move, especially for an advanced country like Japan that has generally supported multilateral efforts on the environment.” Kumao Kaneko, a retired Japanese diplomat who had dealt with the whaling issue as a delegate to the United Nations Conference on the Human Environment (UNCHE) in 1972, regarded the decision with displeasure: “Japan has not learned anything from the shock it experienced at the UNCHE, which I still cannot forget.”

*****

The conference... marked a crucial dividing point in the history of whaling. At the UNCHE, Recommendation 86 was proposed by the secretariat. Recommendation 86 called for all involved governments to strengthen the IWC, to increase international research efforts on whales, and an international agreement under the auspices of the IWC for a 10-year moratorium on commercial whaling. The United States, much to the consternation of Japan, would play a key role in moving Recommendation 86 forward.

Before 1970, whaling moratoria were not a matter of legal or legislative concern for the U.S. government. However, the Nixon administration “initiated and strongly supported” Recommendation 86 against vigorous opposition by whaling nations in 1972. Since then, the United States pursued a whaling moratorium, which aimed to encourage the remaining whaling nations—Norway, Iceland, the Soviet Union, and Japan—to outlaw commercial whaling.

Several policy scholars have argued that nascent environmental NGOs made the campaign against whaling a powerful symbol of modern environmentalism. Those scholars have further argued that the rise of an environmentalist consciousness among the American electorate in general, and the lobbying efforts of environmental NGOs in particular, produced the Nixon administration’s sudden strong support for the 1972 anti-whaling agenda. As the scholar Kurkpatrick Dorsey wrote, “Save the Whales!” became the rallying cry for environmentalists around the world. According to environmentalist rhetoric, whales were essentially humans, only perhaps slightly better. The Nixon administration, these environmental policy scholars argue, came to co-opt this powerful message.

Japanese journalists and pundits see things quite differently. They argue that the Nixon administration changed its policy for a very different reason: they point to a “conspiracy.” For instance, in a book titled (in translation) Whaling and Conspiracy, Yoshito Umezaki insists that Nixon’s dramatic turn toward the moratorium was in fact merely an effort to misdirect attention away from the United States’ own environmental sins—in particular its massive use of defoliants in Vietnam. Umezaki claims that the moratorium was a kind of cover-up that would serve to both keep the international community from pointing a finger at the United States, and its voters from recognizing Nixon’s environmental faults, thus helping Nixon to gain re-election in 1972. Umezaki concludes that Japan was used as a “scapegoat” by the Nixon administration. Japanese government officials, such as Kazuo Shima, an IWC commissioner from Japan, and others also support the conspiracy theory argument. Shima described the U.S. environmental groups as an “ecological cult” and the UNCHE as a well-planned form of “international bullying” of Japan. Shima believed that the United States was motivated by enmity and wariness against Japan when it proposed a moratorium. More directly, Shima argues that the moratorium led by the United States was simply another aspect of its campaign to attack Japan’s growing economic power. However, this author regards the conspiracy theory as basically untenable, as it contains many insufficiently substantiated claims.

Credit: Jeremy Sutton Hibbert

Tension between public health and environmental protection

The latest issue of the Journal of Environmental Law has an interesting piece by Ben Pontin, "The Constitutive Tension Between Public Health and Environmental Protection—An Historical Perspective". Pontin writes (footnotes omitted):

According to David Hughes, the author of an early formative textbook, environmental law has ‘public health origins’. That is to say, many current regulatory bodies and laws are rooted in the sanitary boards created and statutes drafted during industrialisation to address cholera, typhus and other diseases then associated with urban life. Hughes makes the important point that environmental regulation has borrowed from public health regulation above all in the form of the use of criminal law as a tool of prevention of harm, rather than sanctioning of individual wrongdoing.

It is true that the laws and institutions of public health burgeoned during industrialisation, and that they defined progress at this time. Thus one of the most ‘progressive’ Victorian-era administrations—that of Benjamin Disraeli between 1874 and 1880—was elected on a manifesto echoing Cicero’s maxim salus populi sumprema lex esto (the health of the people is the highest law). This administration put on the statute book the Public Health Act 1875, which heralded a significant shift ‘towards a more modern, collectivist approach to public health’. Under the umbrella of Cicero’s maxim was also enacted legislation controlling air and river pollution.

Yet environmental legislation in and around this period has an autonomy in relation to public health that is not fully captured by Professor Hughes’ characterisation. For instance, whereas public health campaigners seeking the creation of a robust nationwide legal response to disease encountered obstacles in an age of ‘laissez faire’, those defending ‘nature’ found legislation easier to secure. An example is the protection of rural vegetation from chemical factories under the Alkali Act 1863, by means of a centralised, criminal administrative regulatory regime. Public health campaigners in respect of urban peoples were less easily heard within the law-making institutions than the elite proprietors of country estates, safeguarding trees, hedges and meadows. 

Charles Tennant's St. Rollox Chemical Works in 1831

Cow trials and climate change

Sorry for the long silence! I just got April's Environmental History in the mail, and there's an interesting article by Keith Pluymers, "Cow Trials, Climate Change, and the Causes of Violence". The abstract:

In 1641, according to the vicar Thomas Johnson, Irish rebels in Mayo, in “meere hatred and derision of the English,” tried a group of English cattle for unspecified charges. They were convicted and executed. Many historians have pointed to this striking event as an example of the deep hatred underlying popular violence in the rebellion. The trials, however, were merely the most spectacular iteration of long-standing conflicts over transformations in animal husbandry between the Munster Plantation in the 1580s and the rebellion of the 1640s. The new pastoralism that emerged during these decades threatened traditional practices and landscapes while creating new vulnerabilities to poor weather and economic downturns. The combination of economic crises and harsh weather associated with the Little Ice Age exposed these vulnerabilities. The cow trials show that environmental forces shaped the 1641 Rebellion but demonstrate that historians assessing the impacts of climate and weather must attend to the social and economic contexts that produce vulnerability.

Historic Spanish conservation laws

The US Library of Congress's online Herencia collection, containing royal decrees, papal bulls, legal opinions, judgments, and royal orders from Spain from the 15th through the 19th centuries, has recently been running a crowdsourcing project to review transcriptions of the historic documents.

Two collections that might interest readers of this blog are the collections of laws and statutes on agriculture, conservation, hunting, and fishing, and that on disease and public health law.

Royal Order of December 12, 1748 concerning the conservation of forests and plantations (LOC)

Mongolian hunting regulations

The Qianlong Emperor Hunting Hare, by Giuseppe Castiglione (1755)

Last year Inner Asia published Khohchahar Chulu's "The Formation and Regulations of the Military Hunt in Qing Mongolia". (Thanks to Mitra Shirafi at Legal History Blog for noting it.) The abstract:

In the Mongolian tradition, hunting and war have had strong connections with each other. During the Qing Empire, Mongolian hunts were not only local practices, but were also involved in the Qing empire-building project. On the other hand, the collective hunt itself was by nature a dangerous activity that contained potential physical risks from wild animal attacks as well as human errors. It is conventionally understood that the hunt therefore must have been well organised in order to secure success and security. But how a hunt was organised and operated in reality has not yet been well examined. This study explores the organisational structure and regulations of a military hunt in Qing Inner Mongolia, a geographically important zone where both the Manchus and Mongols actively held hunts. The primary focus of this article is the nineteenth-century Alasha Banner grand hunt, a well-organised and documented Mongolian military hunt from the Qing period.

The Million-Dollar Duck

The American Historical Review recently published Miranda Johnson's "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract". The abstract:

In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Dene men gathered for Treaty Day at Fort Resolution, ca. 1924

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.

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:

early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.

Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:

"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries." 

Digital library I: A New Treatise on the Laws for Preservation of the Game (1766)

So (as Ann Wilson sang), the first post in the digital library of historical environmental law series is on A New Treatise on the Laws for Preservation of the Game, first published in 1764; the second edition, available online, was printed in London in 1766 by His Majesty's Law Printers.

The title page gives the author as "a Gentleman of the Middle-Temple"; said gentleman was apparently one Timothy Cunningham, a prolific author of law books in eighteenth century Britain.

The title of "Gentleman" may have been about more than manners or class, as the long title of the treatise has this explanation (Oklahoma!, anyone?): "Containing All the Statutes, Cases at Large, Arguments, Resolutions and Judgments concerning it; equally useful to the Gentleman and Farmer; as the Gentleman may learn how far his Privilege extends, and the Farmer may be enabled to know when the Gentleman exceeds the Limits prescribed by Law, and the proper Methods of Redress." So the author must have been something of a "sporting gentleman" (as he puts it on in the "Advertisement") himself, not simply a disinterested scholar.

Historical analysis in environmental law VI: What is at stake

In the last couple of posts in this series I suggested several directions of inquiry for uncovering the history of environmental law. In this final post in the series, I would like to tentatively offer some thoughts on why the historical exploration of environmental law matters.

First of all, history can help us better understand current environmental law. For instance, David Driesen has recently advanced a positive theory of environmental law, attempting to explain its salient features, such as reliance on certain types of standards. Notably missing from his account are historical explanations for these aspects of environmental law, explanations which might be provided by works such as those of Morag-Levine.  Or take the argument of 'free market environmentalists' that private law would do a better job of protecting the environment than modern regulation; this type of argument could be checked against the historical experience of legal systems that have relied on private law for this purpose.

AC Pigou

Second, the history of environmental law is a topic that offers an opportunity to bridge the material and the abstract, or to take up environmental historian Linda Nash's challenge 'to show how what is presumed to be social or cultural is thoroughly intertwined with the natural.' Such an endeavour would be beneficial to both environmental history and legal history, as legal doctrines, institutions, and ideologies—social and cultural artifacts—developed with regard to the natural, may circulate beyond the narrow confines of environmental law to other legal contexts. One thinks, for instance, of Pigouvian taxes, cost-benefit analyses, and feasibility standards, all developed 'intertwined with the natural' but spreading their branches far afield.

Environmentalists often portray themselves as acting in the name of an apolitical public interest.

Animal welfare law in Scotland

Daniel James Carr recently posted "The Historical Development of Animal Welfare Law in Nineteenth Century Scotland". The abstract:

This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.

Animal colonialism

A little while back AJIL Unbound published a piece by Mathilde Cohen, "Animal Colonialism: The Case of Milk". The abstract:

Greta Gaard writes that “[t]he pervasive availability of cows’ milk today—from grocery stores to gas stations—is a historically unprecedented product of industrialization, urbanization, culture, and economics.” To these factors, I would add colonialism and international law; the latter understood broadly to include the rules considered binding between states and nations, transnational law, legal transplants, international food aid, and international trade law. Until the end of the Nineteenth Century, the majority of the world population neither raised animals for their milk nor consumed animal milk. Humans are unique in the mammalian realm in that they drink the milk of other species, including beyond infancy. With the European conquest of the New World and other territories starting in the Sixteenth Century, dairying began to spread worldwide—settlers did not set out to colonize lands and people alone; they brought with them their flora, fauna, and other forms of life, including lactating animals such as cows and sheep.

Property in whales

Angela Fernandez recently published a review of Robert Deal's The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (Cambridge UP, 2016) at JOTWELL. There's a lot here--on the environmental background of law, on efficiency and fairness, on the relation between law on the books and law in action, and more. Some highlights:

Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)

So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....) 

The river as legal person

Whanganui River

H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:

While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.

So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 

More forest law

Following yesterday's post on medieval forest law, today's is on the other article from that William & Mary Bill of Rights Journal special issue, Sarah Harlan-Haughey's "Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England". A taste (footnotes omitted):

The popular genre of literary forest law parody was established quickly after the Conquest, and functioned as a ready-made engine for the evolution of parody of the kind that would lead to the late medieval outlaw rhymes, masterworks of absurdist nonsense. Poachers, as well as poets, continued to perceive forest law on the ground as unjust and parodied it in word and action.

William the Conqueror, the Bayeux Tapestry

Forest law

from Livre de la Chasse

Moving from forests in Mexico to English forests, the latest issue of the William & Mary Bill of Rights Journal, dedicated to Magna Carta, has a couple of articles on medieval forest law in England (thanks to Legal History Blog for noting it). The first is Ryan Rowberry's "Forest Eyre Justices in the Reign of Henry III (1216–1272)" (for the second, see here). Rowberry notes that scholars have estimated that forest jurisdictions covered nearly one-quarter of England by the thirteenth century, possibly more.

 As there's a lot of interesting stuff here, I'll just quote a bit (omitting footnotes, text in brackets is my own). First of all, to clarify what a medieval "forest" was:

‘Forest’ in medieval England denoted a defined area of unenclosed land within which wild game, principally deer, along with wide swathes of its habitat were protected by forest laws for the benefit of the king. Medieval forests, however, could include “not only woodland, but also heath, pasture, meadow, and arable land, and even hamlets, villages, and townships.” Importantly, forest jurisdictions in England unlike those in Normandy could, and often did, extend outside the king’s own demesne land (the crown’s landed estate) onto privately held lands, acting as a type of economically restrictive land-use overlay on areas that remained subject to the common law as well.

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.