Not so fast: Nature versus the Common Law concludes

I haven't posted in the last few weeks, leading my friends at the Legal History Blog to reasonably conclude that my series on Nature versus the Common Law was finished. But now I have some time to post what is in fact the final installment in the series.

The posts in this series, based on my article in Clio@Themis, aimed to illustrate a once-common way of thinking about law and legal claims, in which the natural environment was held not only to provide the physical background on which polities and their legal systems existed, but to demand from these legal systems a measure of accommodation. For some judges, it is true, the demands of nature, however worthy or desirable from a social or economic point of view, had no place in court; a judge's role was to resist such claims in the name of the law. For many others, however, environmental realities might be imbued with normative force powerful enough to outweigh considerations of legal precedent and tradition. Moreover, while environmental differences could sometimes break the chains of black-letter law, environmental similarities might at the same time create new legal bonds, as in the Indian and Canadian cases that looked to the law of the independent United States of America, with is great rivers, for legal guidance. All this is to say that in the context of water law in the British Empire, nature could often be "jurisgenerative", to use Robert Cover's term – creating law.

The environmental rhetoric of these courts may, at first glance, seem but a particular instance of the wider phenomenon of colonial and newly independent courts working to stake out the independence of their legal systems from the law of the old country. Yet this would be a mistake: Most of the judges arguing for nature's normative force were themselves British; and in the cases examined here even judges of the independent United States argued not for a general rejection of the English common law, but for the inapplicability of some of its water law rules due to supposed environmental incompatibility.

In conclusion, though, it should be noted that this study has shown that nature also had a "jurispathic" role, impeding the smooth flow, or "transplant", of legal norms around the empire. Legal norms, in particular the common law, spread around the British Empire through a network of orders, legislation, publications, correspondence, educational institutions, career paths, and more. Yet the spread of norms, never smooth, was hampered by a number of factors, some of them natural : distance, forbidding seas, and monsoon winds, to name a few. These factors impeded the transmission of legal ideas and norms in all areas of law. At the same time, this study has highlighted an additional mechanism through which nature sometimes frustrated the spread of norms: perceived environmental similarity and difference.

Nature thus had a dual normative role in this context: creating new norms while at the same time extinguishing others. One need not take a deterministic view of the place of nature in legal history, nor recognize in nature any sort of agency of the intentional kind, to acknowledge that nature had an important role in constituting the connections that both facilitated and obstructed the global flow of water law in the age of empire.

Yet if the first set of law-impeding environmental factors, deriving from physical impediments to legal communication, has historically applied with similar force across all areas of law, the efficacy of the latter mechanism, based on perceived environmental factors, presumably has been correlated with the degree to which the area of law directly dealt with environmental issues. With regard to water law, as we have seen, whether environmental conditions in fact dictated or determined the rejection of common law norms, it is clear that judicial perceptions of nature did play a role in impeding the spread of English norms in this field. I have argued elsewhere that forest law, too, was at least in some contexts heavily influenced by perceptions of environmental foreignness and change. Further study might reveal similar patterns with regard to other related areas of law, from sanitation regulation to wildlife protection.

Happy spring holidays!

Conference: Law and nature in the Middle Ages

Courtesy of ESCLH Blog: An upcoming conference (16-17 March) at Université d’Orléans on law and nature in the Middle Ages. Talks include Marie Bassano on the relationship between man and nature among late-medieval jurists and Dante Fedele on the medieval jurists and the sea.

The full program is here.

Nature versus the common law IV: Shifting watercourses

In the last posts in this series we looked at court decisions that discussed whether the ownership of rivers should follow the common law or change to reflect local environmental conditions. Another branch of water-related law dealt with the legal consequences of changes in the course of a river or a shoreline over time. The property-law questions thrown up by these changes, under the legal terms "alluvion" and "diluvion", were to whom newly formed dry land belonged – to the former owner of the dry land now submerged, or to the owner of the adjacent riverbed. The English rule, based on Roman law, was that gradual accumulations of land from water belonged to the to the owner of the land to which the new land was added, while gradual losses of land were lost to the landowner and became part of the river (Foster v Wright, 4 CPD 438 (1878)). Sudden changes in the course of a river, on the other hand, were held not to bring about changes in ownership of the bed.

One line of legal thought held that the English common law rules in this area of law applied everywhere. The English Court of Exchequer in 1839 (In re Hull and Selby Rwy, 151 English Reports 139 (Ex 1839)) opined that the common law of alluvion "is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law, for the permanent protection and adjustment of property." Similarly, seventy-five years later, the Privy Council rejected arguments that the English law did not apply to the Nigerian shoreline due to differences in the local conditions, Lord Shaw stating that the court did not doubt the "general applicability" of the English law of accretion. This, however, was the minority position.

Nature versus the common law III: Canadian and Indian rivers

Bhanutpt, Krishna River

In the previous post in this series, we looked at how nineteenth-century American courts debated whether the common law rules of riparian rights applied to the grand American rivers, seemingly so different from those of England. But the question of whether the common law applied to environments unlike England's soon arose in territories around the British Empire as well. Robert Travers has argued that while judges in England had used ideas of natural law to modify the common law, in India natural law arguments were used in some contexts to support the replacement of local law by English norms. Here, however, we see the reverse, with nature invoked to reject English rules of water law in favor of new norms, felt to be more appropriate to the local environment.

In an 1842 case (Esson v M’Master, 3 NBR 501 (1842)) the New Brunswick Supreme Court noted the "great difference in the character of the small rivers of England and those of this Province", but thought that this consideration "may be thought more fit for the Legislature than the Court ". Yet the same court in 1849 (Rowe v Titus, 6 NBR 326 (1849)) adopted the ruling of an American court, following the argument of counsel that:

The principles of the law of England, in respect to rivers, cannot be applied to this country : there the rivers are not subject to such sudden freshets, nor are they used for the same purposes as in this country ; the cases therefore on this subject in the United States, where the rivers are used for the same purposes as in this country, will be very important.

The idea that Canadian courts should follow American courts rather than English ones when dealing with rivers was not limited to New Brunswick. In an 1852 case (R v Meyers, 3 UCCP 305 (1852)), Chief Justice James Macaulay of the Upper Canada (Ontario) Court of Common Pleas, after examining the English precedents which normally would be thought binding in the British colony, demonstrated the legal power of geography over the common law by contrasting English precedents with decisions from "this side of the Atlantic", lumping together American and Canadian cases without distinguishing between them. Macaulay's judgment was also significant in ruling that the test for navigability of a river was its "natural capacity", not its use in practice, once again demonstrating the normative power of nature. The influence of American jurisprudence was evident as well in an 1882 opinion of Justice Samuel Strong of the Supreme Court of Canada :

I do not hesitate to say that the rule which appears to have been adopted as a principle of the common law as administered in England, that no rivers are to be considered in law as public and navigable above the ebb and flow of the tide, is not applicable to the great rivers of this continent, as has been determined by the Supreme Court of the United States and by the courts of most of the States […]

More on nature versus the common law: American judges on American rivers

As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public. 

While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.

These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.

The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :

The inevitable empire of nature?

The new journal LawArt. Rivista di Diritto, Arte, Storia / Journal of Law, Art and History just posted its first issue (as an aside, we've now counted 63 active legal history journals!), including an article by Nader Hakim, the English title of which is "A Legal Picture of Nature: Legal Discourse or the Aesthetics of Truth. An Example from the Heart of 19th Century France" (the article is in French). The crux of the article (with help from Google Translate, notes omitted):

Sculpture of Charles Demolombe,
Caen, c. 1910

Charles Demolombe (1804-1887), famous professor of civil law in Caen, Normandy, lets us see a picture in which nature holds a place that is significant and quite symptomatic of the legal discourse of his time. From the outset, in fact, the reader encounters nature very frequently when reading the famous Cours de Code Napoléon. Nature seems made up of "all that exists, not only the objects which can become the property of man, but even all that, in nature, escapes this exclusive appropriation." Nature is thus opposed to human activity, it forms the backdrop for actions or the landscape within which law is played out.

However, far from being an objective reference to the physical-chemical world alone, nature is mobilized to integrate into the discourse not only biological life or physical forces but also essences and values. It is then natural what the author, in this case Charles Demolombe in our example, declares as such. One might think that nature is this thing external to the human will and which is imposed on everyone, objectively, but it is not.

Of course, we meet this mysterious and irresistible force, this force majeure considered an "inevitable empire"* of nature. Of course, tangible or immovable property or even men and women have undeniable physical properties. Things and people, the objects of the jurist's discourse, indeed exist. In reality, we can easily see that the law and jurists choose from what is objectively “natural” or physical-chemical, that which they will qualify as “nature”. In a way, the law has the last word because it chooses among the constraints of nature those that it wants to admit and if necessary extend, and those that it simply ignores.

* In a note here Hakim cites from Demolombe (vol. X, no. 5) a passage on the law of alluvion that resonates with a recent paper of mine (for a collection edited by Hakim on "Nature as a Norm"...):

As if the rivers and rivers needed the permission of the legislator, to roll their waters according to the mysterious and irresistible movements which carry them along! As if this empire, or as we still say, this absolutism of running waters were not the work of nature itself, an inevitable empire, of which the legislator would seek in vain to dispossess them; whereas its only claim can be to regulate the consequences as equitably as possible. We must therefore recognize that there is a force majeure here, a force often capricious and undoubtedly blind, regarding which the laws cannot always right the wrongs or repair the injustices.

The banality of the Tragedy?

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

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

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

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

John Stuart Mill

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

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

National parks in the Netherlands

Wolff en Hoeck in de Purmer: Jan van der Heijden (1678) (courtesy SKBL)

Over at Environmental History Resources, Jan Oosthoek recently posted "Cultured nature: The Nature Scenery Act of the Netherlands", based on his podcast interview with Wybren Verstegen, whose article, "The Nature Scenery Act of 1928 in the Netherlands", was published last year in Forest History Today. There's also a video. Oosthoek writes:

When thinking of national parks most people think of famous examples like Yellow Stone and Yosemite in the United States or the Serengeti in Tanzania. These parks are large in scale with an emphasis on wild life conservation and the preservation of scenic landscapes. Human activity and presence are restricted and regulated and people are visitors.

In smaller and densely populated countries like Britain or the Netherlands, the creation of large national parks is complicated. In these countries landscapes are far from natural and humans are part of the fabric of the landscape. For this reason, it is difficult to restrict human access and activities to create national parks.

In the Netherlands nature and human activity are almost inseparable because about half of the country is at or below sea level and is reclaimed or drained. Consequently, the landscape of the Netherlands is mostly the product of human intervention and can therefore be described as a cultural artefact. As a result, formal protection of landscapes and wildlife came late. One of the early attempts to create protected conservation areas came in 1928 with the Natuurschoonwet, freely translated as Nature Scenery Act. This Act was mostly about protecting country houses set in park like settings.

As Oosthoek himself notes in the video, even in the US park landscapes are far from natural. But, as anyone who has visited parks in the US and in Europe knows, there is a big difference in the degree to which parks aspire to a wild or "natural" aesthetic on the two continents, with European parks tending to distinguish far less sharply than their American counterparts between nature and culture.

Competing heritages of international environmental law

Caspar David Friedrich, The Sea of Ice (1823–24)

It seems a group of scholars based in Britain is doing interesting work on the history of international environmental law. A paper by Stephen Humphreys and Yoriko Otomo, "Theorising International Environmental Law", puts forward a thesis about the historical tensions operating in international environmental law. The abstract:

This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 

As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.

In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

Reversing the past

This is another one of those mind-bending posts in which the past and future are all mixed up. Alejandro Camacho recently posted "Going the Way of the Dodo: De-Extinction, Dualisms, and Reframing Conservation". It involves the possible future "de-extinction" (i.e. revival) of currently (or future) extinct species, and while it doesn't deal with history strictly speaking, it does raise the question of reversing history, as well as complicate the idea of the "natural" in a way familiar to environmental historians. The abstract:

De-extinction, a suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Yet de-extinction raises much more fundamental questions about the relationship between humans and nature, and the more and less useful ways that the law serves to navigate that relationship. Unfortunately, the endangered species, invasive species, and public land management laws likely to govern the revival and introduction of de-extinct species largely remain premised on understandings of nature as static and easily divisible from human activity. In these contexts, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic.

Through the example of de-extinction, this article illustrates the limitations of the law’s reliance on these crude dualisms. Currently, de-extinct species will often be obstructed as non-native and introduced (even if they might promote ecological function in a particular area) and may be allowed or promoted in locations they used to exist (even if likely to cause ecological damage). De-extinction illustrates how policymakers need to reformulate natural resources law to be less dependent on these strict dualities. Instead, the article argues in favor of cautious risk assessment that acknowledges the dynamism of nature and humanity’s indivisibility from it.

Nature in history and law

Jill Fraley has posted "The Jurisprudence of Nature", an article that grapples with the history of the concept of "nature" in several (American) doctrinal areas, not only in environmental law, but in areas such as patents and consumer protection. The abstract:

(Nature-Culture Dichotomy)

Informal regulations defining nature, natural and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of human agency. This article seeks to generate a history of the jurisprudence of defining nature. Such a comparative history naturally elucidates the challenges of predictable outcomes when an ostensibly binary system is effectively implemented as a scale. The evidence of inconsistency and confusion provokes an exploration of the literature of history, sociology, and philosophy on the cultural history and pitfalls of defining nature. The article concludes by exploring how the language of property might more efficiently and reliably allow us to navigate the need to legally distinguish manipulations and interventions to protect both public property and private investments not only in patents, but also in consumer products.

Legal geography

(Adam Wolkoff's second post on teaching the history of law and the environment. Links to the rest of the posts are here.)

Environmental history courses present fascinating questions about scale. Ted Steinberg’s synthetic Down to Earth (2012), which I use as my primary textbook, opens on a geological time frame, asking readers to think about how the latitudinal orientation of North America, the evaporation of its great inland sea, the rise of the continental divide, and the journeys of glaciers shaped the rise of its civilizations. But the core of his narrative are case studies of how ordinary people like fishermen, poachers, coal miners, and farmers understood their connection to nature.

Nineteenth-century Hudson River School paintings, like Thomas Cole’s View from Mount Holyoke, Northampton, Massachusetts, after a Thunderstorm—The Oxbow (1836) nicely illustrate the question of scale. These are not impressionistic landscapes: foreground and background are rendered in crisp detail, and the viewer decides whether to linger on the details of the artist’s painting kit or to widen his or her

view of the magnificent scenery. But Cole’s decision to take in everything the human eye could see from Mount Tom strongly directs the viewer’s attention toward the wider scale, in which unseen farmers have deforested, gridded, and cultivated a floodplain. 

The scope of an environmental history class is also a pressing subject. As an Americanist, I structure the course around a survey of the major events shaping the place we now call the United States. In other words, what were the connections between law and nature in Colonial New England, or along the Erie Canal during its years of industrial development? Most students come to class with a basic timeline of these events in their heads, so the class offers an opportunity to deepen their appreciation of these changes as legal and environmental events. 

An alternative approach would be to gather case studies of environmental phenomena across global regions and compare how different societies regulated those conditions. Comparing land tenure systems is a classic way to understand a social and political order, as are histories of water, forestry, and sub-surface mining rights. But because of the multiple interdisciplinary challenges of teaching a globally-oriented course—comparative history and law—teaching this course in a coherent way demands a collaborative synthesis across many fields, which, to my knowledge, does not exist: history, law, anthropology, sociology, environmental science, and other sources of customary environmental practice. 

Colonialism and environmental harm

Gustavo Rojas-Páez recently posted "Whose Nature? Whose Rights? Criminalization of Social Protest in a Globalizing World". In it he asks:

Why has the law historically taken both social and environmental harm for granted? Who has benefited from the historical silences of the law in regard to social suffering and environmental harm? The answer to these questions, while not straightforward, lies largely in the restricted way in which nature’s relationship with human beings has been theorized by social science and legal scholarship.

The article goes on to discuss Vattel, Grotius, the School of Salamanca, and their connections to contemporary conflicts over natural resources in places such as Bolivia and Columbia.

Evolutionary biology and property rights

Kathryn Elizabeth Loncarich has posted "Nature's Law: The Evolutionary Origin of Property Rights". The abstract:

While the scientific community has widely accepted that evolution has significantly shaped human behavior, legal scholars have largely ignored the influence of evolution on our property system. A wide range of species exhibit behavior indicating respect for ownership, and it is believed that this behavior evolved as a competitively favorable strategy. Animal displays of ownership look strikingly similar to common law property rights, including the rights to exclude and exclusive use. Given that evolution has shaped the behavior of both humans and animals, much of our common law conception of property may in fact be based on inherited, ingrained concepts of ownership. Evolution, however, merely produces “good enough” results based on historic environmental conditions. By analyzing our property system through the lens of evolutionary biology, we come to understand that our default property rules are neither inevitable nor ideal, and we are liberated to design and implement alternative property rules to better fit our modern society.

Recovering from the Recovery Narrative

SSRN has "Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization", another paper from Michael Burger (see an earlier post here) on the interactions between American cultural-environmental history and current legal issues. The abstract:

Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States.

Settler Contract or Natural Contract?

Last week I participated in a very interesting conference on the topic of legal diffusion put on by Juris Diversitas and the Swiss Institute of Comparative Law. Bronwyn Lay, a lawyer, writer, and scholar, gave a thought-provoking paper entitled "Settler Contract or Natural Contract". Hopefully it will be published soon; meanwhile, here's an excerpt: