The water commons beyond property and sovereignty

Irrigation canal in Provence

Continuing the series of posts on "The Tragedy at 50" (the first one is here), here's the abstract of an article with a new, historical perspective on commons debates: Alice Ingold's "Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty":

Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public. 

In search of post-Brexit England

I highly recommend reading a beautiful piece by Helen Macdonald just published in the New York Times Magazine, "In Search of Post-Brexit England, and Swans". The story opens:

In the days after the Brexit vote last year, I became obsessed with an oil painting called “Swan Upping at Cookham” [below, Stanley Spencer, 1915-1919], which portrays a scene from an ancient and colorful English tradition. “Swan Upping” refers to the annual summer voyage of a flotilla of wooden skiffs that sets off from the town of Sunbury-on-Thames on a five-day journey to catch all the swans on the upper reaches of the River Thames. The crews check the parentage of young birds and place a mark on them to claim their ownership: Some belong to the queen, others to the Worshipful Company of Vintners and the Worshipful Company of Dyers, two ancient trade guilds based in the City of London. The painting depicts a traditional stop on the uppers’ trip. Here is the river and the Ferry Inn, wooden punts, moody clouds, women carrying cushions, a fretted iron bridge and a swan bound and hoisted in coils of rope and canvas, white neck craning from a man’s shoulder.

After some interesting background on the painting and on the place of these swans in English national mythology, Macdonald explains more about the legal historical background of the "upping":

French forest law

The latest American Historical Review has a review by Jeff Horn of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015). Horn writes:

Matteson is at pains to demonstrate that over the long term, “peasant communities and practitioners of customary rights” retained “significant control over their forests” “through tenacity, wiliness, and sheer violence” (xv).

In an introduction, six long but fast-moving chapters, and a lengthy epilogue, Matteson considers the relationship of states, various types of property owners (such as seigneurs), and communities to forests, their management, and their economic exploitation.... Conservation is a major theme, particularly its intellectual foundations in Enlightened natural philosophy that Matteson refers to as a “formative period in the development of French environmental discourse and conservationist policy” (50). These ideas are then traced across subsequent regimes. Shifts in state oversight of the forests, mostly negative, form the spine of this book. Jean-Baptiste Colbert’s 1669 forest ordinance is at the heart of the first chapter, the “failure” of the changes made by the Revolutionaries in 1789–1791 is the focus of chapter 4, and the background and reception of the Forest Code of 1827 are the subjects of chapters 5 and 6.

Matteson makes three main arguments. First, she asserts that “peasant opposition to state forest policies produced greater gains than previously appreciated, even when it was crushed at the time.” Matteson also claims that the French environmental conservation had less to do with ecology “than with extending state power, suppressing sedition, and substituting commercial exploitation for communal utility.” Third, she maintains that “local, community-based arrangements for the management and use of natural resources … have been unfairly maligned, both in the historiography of the Revolution and in contemporary policymaking” (10–11).... 

Enclosure Norwegian style

The International Journal of the Commons recently published "On enclosure Norwegian style", by Erling Berge and Anne Sigrid Haugset. The abstract:

More than 200 years after the King sold one of the “King’s commons” to urban timber merchants, local people in some ways still behave as if the area is a kind of commons. The paper outlines the history of the transformation of the area from an 18th century King’s commons to a 21st century battleground for ideas about ancient access and use rights of community members facing rights claimed by a commercial forest owner within local consequences of national legislation. The discussion is focused on the right of common to hunt small game without dog in Follafoss private commons. The right was confirmed in a judgement of the Supreme Court in 1937 and in legislation on hunting in 1951. The Government’s proposal for new legislation on hunting in 1981 removed the right without saying a word about it, and it was never commented on in parliament during the legislative process. To explain what we observe it is suggested that a new layer of legislation on rights of common from 1857 and 1863 created a structural amnesia about private commons making it easy to remove them from legislation.

A usable past for commoners

We just love histories of history. Reviews in History recently carried a review by Brodie Waddell of Andy Wood's The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge UP, 2013). Waddell writes:

Much of the book revolves around common rights and agrarian custom. As Wood shows, a ‘usable past’ was absolutely central to the economic lives of the vast majority of the population who lived and worked on the land as tenants or smallholders. Their subsistence was often dependent upon precise – if occasionally selective – memories of customary rights to grazing, fuel and other resources. In 1570, for example, the tenants of Cockermouth were satisfied because ‘albeit their Fermeholds were small the Comons were great’ (p. 158). Yet, in most cases villagers only had access to such ‘Comons’ because they could prove that they had used them for ‘time out of mind’ and, according to Wood, their ability to deploy this ‘useable past’ changed substantially between the 14th and 19th centuries. The aftermath of the Black Death left the English peasantry in a strong position with landlords desperately needed tenants and labour. It was in this period, he argues, that the peasants won the indulgences that would soon, through the power of ‘social memory’, be transmuted into ‘customs’ and thus into rights or entitlements. In the early modern period, tenants defended these customs assiduously through increasingly sophisticated use of documentary evidence and the law courts. However, Wood also demonstrates how customs that favoured the tenantry were under attack. Lords sought to harness rents to inflation and seize exclusive control of common lands. In the wider culture, this manifested itself as a forceful discourse of ‘improvement’. Similarly, Wood suggests there was a hostility to custom amongst godly humanists. Thomas More, for example, who is often quoted as a defender of the commons against the lords’ man-eating sheep but who was typical of many humanists in criticizing those who justified a practice by citing its antiquity (p. 123). Worse still, in the 17th century, gentry attitudes were ‘hardening’ even further and there was an apparently ‘decisive shift’ against custom and against commoners in the central law courts (pp. 126, 160). The power of popular memory was being eroded. According to Wood’s chronology, it was in the late 18th century that the final break came. Enlightenment ideology and capitalist demands for labour discipline led to an ‘epochal shift’ towards a ‘new order’ in which custom had no authority (pp. 314, 350-2). However, even then the memory of the people was not extinguished. In the 19th century, as Wood acknowledges, common rights remained important for many working-class families and a strong sense of the past informed radical agrarian politics. The chronology presented in this book is thus careful and nuanced, even if the overarching narrative is one of struggle and loss.

International Conservation and the “Naturalization” of Indigenous People

The Journal of the History of Ideas recently published Raf de Bont's “'Primitives' and Protected Areas: International Conservation and the 'Naturalization' of Indigenous People, ca. 1910–1975". The abstract:

This article explores a long-standing discursive tradition within international nature conservation. In this tradition the argument is made that “primitive” people should be allowed to live in the areas the conservationists deem as “pristine” or “natural.” The article explores the (changing) relative importance of this tradition in the conservation discourse as a whole, and analyzes the shifting composition of its argumentative arsenal from the 1910s to the 1970s. Particular attention goes to the uneasy combination of two types of argument: one in which indigenous people are presented as part of nature, another in which their customary rights are stressed.

Tagbanua in Culion, Phillipines (Bulakbol)

Customary rights and the environment in India

The latest issue of History Workshop Journal has Vinita Damodaran's latest entry into the debates over colonialism and the environment, "Indigenous Agency: Customary Rights and Tribal Protection in Eastern India, 1830–1930". Though the abstract (after the jump) makes it sound like the article deals extensively with post-independence India, in reality it focuses on the colonial period (as indicated by the title), crediting the British with making some genuine efforts to recognize customary property rights of indigenous peoples. Damodaran explains the stakes:

Pareshnath Hill (source: Wikipedia)

The current revisionist position in history and anthropology has focused on dismantling terms such as ‘tribe’, ‘forest’ and ‘indigenous’, used extensively in the past, and this has had a significant negative impact. As notions of ‘indigeneity’ and ‘customary rights’ come under revisionist attack the marginalization and proletarianization of forest-based communities and their traditional livelihoods gain pace all over the world. Recently however there has been a reassessment of the significance of customary law among tribal communities, in terms of access to resources and also of how people use it to claim citizenship. Parallels can be drawn between areas as far afield as England, Australia and Indonesia. As E. P. Thompson noted, in eighteenth-century Britain ‘custom’ was invoked to legitimate almost any usage, practice or demanded right. In a new collection, edited by Nandini Sundar and including work by sociologists, anthropologists and lawyers, the idea of custom as enshrined in colonial law makes a comeback. It is noted that while Indian courts are currently far from the judicial revolution heralded in Australia by the landmark Mabo judgement of 1992, they nevertheless recognize custom provided it is established as such by clear and unambiguous evidence. Whilst rightly challenging the static understandings of custom, Sundar points out that ‘custom deserves serious reconsideration as a discursive product of engagement between local communities and forging visions of the future in the name of the past and the spaces the state allows for pockets of exceptionalism’. It has also been argued recently that customary law may help to overcome the so-called ‘tragedy of the commons’ – the theory that open access to common property may lead to over-exploitation by self-interested individuals. Customary law systems in contrast are mostly concerned with (limited) common rather than public property. Historically grounded understandings of the conflict over customary rights and understanding customary law in the colonial context thus become crucially important.

Swidler reviews "Custom, Improvement, and the Landscape in Early Modern Britain"

The latest issue (April 2013) of Environmental History has a number of book reviews that may be of interest to readers. Eva-Maria Swidler reviews a collection of essays edited by Richard W Hoyle, entitled Custom, Improvement, and the Landscape in Early Modern Britian (Ashgate, 2011).