Nuisance law and forced labor

I recently participated in the great Legal Histories of Empire conference that met in Maynooth, Ireland. There were a number of papers on environment-related topics (especially about the oceans), but one that really stood out for me was that of Erin Braatz on nuisance law in colonial Gold Coast (Ghana). 

Braatz showed that the largest category of criminal prosecutions in the Gold Coast was for nuisance, and especially sanitary offenses, and suggested a surprising (for me, at least) explanation: the colonial government's desire for forced labor. After the abolition of slavery, colonial rulers and settlers cried out for (cheap) working hands, and sentencing locals to terms of labor for nuisance violations was one way of providing them.

I've often noted before connections labor issues and environmental regulation, but Braatz's research suggests a new (and unsettling) angle.

All the elements of tragedy were there

(courtesy Old Merthyr Tydfil)

Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:

At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”

Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:

The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying....

The Israeli (and Ottoman and Islamic) public trust doctrine

Chapter heading from the Hebrew translation of the Mejelle by Frumkin

Zafrir Rinat, Haaretz's environment reporter, recently wrote about the story of Moshe Puterman's arrest for entering a municipal beach without paying the admission fee, and the court decision which might be thought of as a foundational document of an Israeli public trust doctrine:

One day in 1959, Puterman and a few friends went to the seashore in Herzliya. As was usual at that time, the municipal attendants demanded that they pay in order to enter. But Puterman was fed up with paying, and he snuck in – with the attendants hot on his heels.

“There was a scuffle and I escaped, but they caught me and I was taken into custody,” he recalled recently. “I told the attendants that this was a public area and that they were acting like thieves. It upset me to pay for something that should have come to me by right.”

Puterman was convicted in Tel Aviv Magistrate’s Court for refusing to pay and for resisting the attendants with force. He was ordered to pay a fine. But he did not let the matter rest there.

“My lawyer was the late Avraham Socholovsky, who was also a personal friend,” Puterman told me. “As we left the courtroom, I asked him, ‘Do we keep going?’ ‘Of course,’ he replied.”

Socholovsky appealed, and Tel Aviv District Court Judge Jacob Gavison overturned the earlier conviction. [see excerpts of the decision below-DS]

*****

The ruling became a precedent that enshrined the public’s right to free access to the seashores. According to attorney Amit Bracha, executive director of Adam Teva V’Din: the Israel Union for Environmental Defense, the verdict led to legislation, in 1964, that prohibits charging an entry fee to beaches where only basic services – lifeguards, toilets, showers – are provided (though a fee can be charged for parking near a beach). It also led to the High Court of Justice decision in a petition filed by the IUED against the Interior Ministry more than 10 years ago. The court then instructed the ministry to order local governments to uphold the law concerning free entry to beaches. Nevertheless, there are a few beaches that still charge an entry fee.

I've translated below some excerpts from Judge Gavison's decision, which, it is worth noting, predates the well-known line of New Jersey beach access cases by a decade (see here, pp. 17-22). (I'd also like to note that Gavison taught law at the Tel Aviv extension of Hebrew University, the predecessor of the institution at which I teach.) Two points of contact with the American public trust doctrine seem interesting:

Institutions for water control

from  Hoogheemraadschap van Rijnland

Following up on yesterday's post on bonds issued by early modern Dutch water agencies, an earlier post by Rechtsgeschiedenis Blog had the following interesting things to say on water institutions and law:

The peculiar legal nature of Dutch institutions for water control in the broadest sense of the word is their independent origin and – at least to a considerable extent – still independent status. A Dutch waterschap or hoogheemraadschap is not a municipal, provincial or national institution. Some of the waterschappen occupied themselves only with a part of a region, but since a major reorganization in the nineties of the past century only a small number of large water control boards exist, six hoogheemraadschappen and some twenty waterschappen.... A waterschap had and has its own governing body, organizes its own elections for representatives and its board, collects itself special annual taxes, creates its own regulations (keuren), including penalties to be inflicted. In history some waterschappen could even threaten to impose the death penalty for major infractions against its bylaws, for example not complying to orders to repair dikes or not helping against the imminent threat of a flood.

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Leiden is situated on a minor branch of the Rijn, the Leidse Rijn. This river gives its name to the hoogheemraadschap Rijnland.... Rijnland has been often the subject of studies and source editions. The oldest surviving registers have been published for the Society for the Study of Old Dutch Law, De oudste bestuursregisters van het hoogheemraadschap van Rijnland (1444-1520). Regesten van de handelingen van dijkgraaf en hoogheemraden, J.H.M. Sloof (ed.) (Leiden 1999). A section of the Rijnland website is devoted to its heritage, with an image database in which you can find also old documents, artefacts, online finding aids and a treasure gallery. One can find further materials for the history of this heemraadschap at the Regionaal Archief Leiden. This archival centre, too, has an online searchable image database. You will find for example building construction drawings submitted to the hoogheemraadschap.

*****

In my opinion creating or having independent institutions for water control is not only a phenomenon for institutional historians but a subject worth of further investigation. This century will witness the growing importance of natural resources, will perhaps even see battles and wars for water, and you are invited to contemplate the example of a region with in this respect a special balance of powers.

I would add that independent institutions for water control is not a uniquely Dutch phenomenon, but one found in many cultures and legal systems - think for instance of irrigation districts, user-owned corporations, or acequias. Though the issue of individual property rights in water gets a lot of attention, in practice water is usually managed and allocated through these collective institutions.

Statute consolidation and the forest for the trees

While reading up on statute consolidation and revision in 19th-century Britain, I came across (thanks to Desmond H. Brown, "Abortive Attempts to Codify English Criminal Law") an 1826 speech on the topic by the great reforming Conservative politician, Robert Peel, then Home Secretary. Here's what Peel had to say about criminal offenses regarding trees (a topic written about so elegantly by EP Thompson):

There are not less than twenty statutes relating to the preservation of trees from theft or wilful injury, some properly confined to trees alone, others relating to matters so utterly unconnected with the protection of timber, or with the crime of theft, that I shall be almost suspected of fabricating the title of a bill for the purpose of my argument. It seems to have been discovered about fifty or sixty years since that the various laws which had previously passed with respect to timber, did not afford sufficient protection to hollies, thorns, and quicksets, and to save the trouble of amending the former laws—these neglected shrubs were provided for in an act, which, in taking charge of them, took charge also of the other matters referred to in the following title.

George Patten, Sir Robert Peel, 2nd Bt

"An Act for the better securing the duties of customs upon certain goods removed from the outports and other places to London; for regulating the fees of his majesty's customs in the province of Senegambia in Africa; for allowing to the receivers general of the duties on offices and employments in Scotland a proper compensation; for the better preservation of hollies, thorns, and quicksets in forests, chases, and private grounds, and of trees and underwoods in forests and chases; and for authorizing the exportation of a limited quantity of an inferior sort of barley called bigg from the port of Kirkwall in the island of Orkney."

Now, Sir, what I propose is, not to lessen the security which the law gives to the owner of madder roots, not to throw open the holly or thorn to wanton depredation, but merely to transplant them to a more congenial soil than the province of Senegambia.

Law in the wake of the Exxon Valdez

Elisabeth Fontugne has posted "Dismantling the Exxon Valdez: How Misunderstanding One Maritime Accident Led to the Criminalization of an Entire Profession". The abstract:

Workers cleaned a beach in Alaska
after the Exxon Valdez supertanker
spilled 11 million gallons of crude oil in 1989.
credit: John Gaps (AP), NY Times

In 1989, the tanker Exxon Valdez ran aground, spilling enough oil to deface the beaches and inlets of Prince William Sound. A year and a half later, Congress spoke, passing the Oil Pollution Act of 1990. And twenty years later, the Supreme Court enunciated a new bright-line rule for punitive damages in maritime cases, closing out the long years of litigation that had followed the spill. For seafarers, however, the grounding of the Exxon Valdez only marked the beginning. It heralded the advent of an era in which the global criminalization of mariners would become the rule. Putting out to sea had always been risky business. But making landfall, in the wake of the Exxon Valdez spill, could prove more perilous to mariners than any ocean journey. Against the judiciary’s successive interpretations of the tanker’s accident, this Article argues that the grounding of the Exxon Valdez can only be properly understood within its maritime context. It demonstrates that the real punishment for the spill was imposed not on Exxon, but on the men and women who choose to live and work at sea. Finally, it exposes the unfair legal climate in which mariners must now operate, and urges the seafaring community to act to change the law.