CFP: Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

Susan Bartie (ANU), Ben Pontin (Cardiff), and I are organizing a double session on environment, law, and history for the 4th World Congress of Environmental History, to be held (in hybrid format) in Oulu, Finland, 19-23 August 2024. This double session will showcase environmental-legal-historical research that demonstrates the opportunities as well as the challenges inherent in this meeting of disciplines, and discuss strategies, theories, and research methods that might help in overcoming these challenges. The sessions' abstract is below.

If you're interested in joining (in person or remotely, you need not decide now), please submit a proposal through this link by 18 September 2023. Please indicate in your submission whether you wish to propose a traditional research paper (the first session) or make a presentation as part of the roundtable (second session).

Abstract:

The triangle ‘environment–history–law’ suggests a wealth of opportunities for productive transdisciplinary scholarship: Historical analysis of environmental law, environmental histories of legal change, legal histories of the environment, etc. Yet such transdisciplinary projects have to date been tentative and largely tangential to the thriving fields of environmental history, legal history, and environmental law. Legal history, while having moved beyond its previously narrow focus on legal doctrine to embrace wider contexts of society, economy, and culture, has to date remained largely indifferent to environmental issues or to the environment as a category of analysis. The field of environmental law, so salient in pressing issues such as climate change and biodiversity conservation, tends to see itself as brand new, overlooking centuries of environmental laws. And while environmental histories frequently reference legal issues and institutions, from common property to rights of nature, they are often insensitive to the legal context in which these institutions operate.

The first session will showcase new environmental-legal-historical research that demonstrates both the opportunities and challenges inherent in this meeting of disciplines. The following, roundtable session will bring together scholars working across the boundaries of environment, history, and law, in order to discuss the challenges facing this intersection of disciplines, from institutional obstacles to the difficulty in meshing historical and normative analysis. With the participation of the audience, it will seek to identify strategies, theories, and methods that might help in overcoming these challenges. Panelists will be drawn from a variety of disciplines, regions, and methodological approaches. 

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.

Changes in environmental law scholarship

Recently published in Journal of Environmental Law: Ole Pedersen, "The Evolution and Emergence of Environmental Law Scholarship—A Perspective from Three Journals". The abstract:

In the attempt to lay the foundations for a better understanding of environmental law scholarship, this article offers a local perspective of environmental law scholarship in the UK. Through a study of more than 1,400 articles published in three leading UK environmental law journals over the course of three decades, the article considers the ways in which environmental law scholarship has changed over time by reference to gender and geographical location of authors. The article also interrogates the ways in which the topics of scholarship have changed over time, as well as the extent to which environmental law scholars make use of empirical methods and external sources of funding for their research. Finally, the article explores the extent to which environmental law scholarship is published in generalist law journals.

There are a lot of interesting data in the article. Here, for instance, is a graph showing the changes (mainly increases) in the number of environmental law articles published in leading UK generalist law journals:

It would be interesting to see parallel date for other countries.

Corpus linguistics and the history of environmental law

The article by Caroline Laske in the new issue of Comparative Legal History, "Corpus linguistics: the digital tool kit for analysing language and the law", argues for the utility of this computational methodology with an example (among others) from the history of environmental law. First the article abstract:

Corpus linguistics methodologies offer innovative ways of reading legal historical sources. Studying the language of source texts using computational techniques that retrieve linguistic data makes detailed searches of words, phrases, and lexical/grammatical patterns and structures possible and provides multiple contextual data that is both quantitative and qualitative, empirical rather than intuitive. It helps us understand not just what is being said, but also how it is being said, how language is used to encode meanings, and what that can tell us about underlying contents and the socio-political, cultural, geopolitical, economic, and other contexts and discourses in which these texts were produced. This paper argues that the use of corpus linguistics is relevant across comparative legal history and can be applied in comparative legal historical research independent of the area of the law or the historical period. Detailed studies incorporating corpus linguistics will be discussed to show the potential of this methodological shift.

The example of environmental law is used to demonstrate how corpus linguistics (CL) can be used to study rapid change in the law (notes omitted):

Paolo Grossi and the environment

The French-language Revue interdisciplinaire d’études juridiques published two articles last year on the relevance of leading Italian legal historian Paolo Grossi's work to environmental issues. 

Paolo Grossi, 2016 (Quirinale.it)

The abstract of the first, by Alessia Tanas and Serge Gutwirth, "Le pluralisme juridique retrouvé au temps des désordres écologiques. Penser la relation entre le droit et les communs de la terre avec Paolo Grossi" (Legal pluralism at times of ecological disorders: thinking the relationship between landed commons and the law with Paolo Grossi):

In this contribution, the authors introduce a few key aspects of Paolo Grossi’s research path and link them to their work on the legal questions raised by landed-commons and local ecologies.

There follows a contribution by Grossi himself, "Une autre façon de posséder. Réflexions historico/juridiques sur les aménagements fonciers en Italie" (An alternative to private property. Reflections on land set-ups in Italy from a legal history perspective):

In his contribution Paolo Grossi provides his viewpoint as a legal historian on collective land set-ups in Italy and shows how, through constitutional jurisprudence and the adoption of Law n° 168 of 20 November 2017, the Italian legal order not only recognizes their legal autonomy but also recovers its pluralism and complexity. Such recognition benefits to the protection of the environment.

Climate in the American legal academy

A recent post by Dan Farber at Legal Planet discussed the issue of when climate awareness began to enter American law. 

In "The Origins of Climate Awareness in the Legal Academy", Farber writes:

The earliest clear references to climate change that turned up in my search... were in 1978 articles about nuclear energy. The most notable was by an administrative law professor at Harvard, one Stephen Breyer. Now-Justice Breyer argued that it was misleading to consider the environmental impact of nuclear power without also considering the impact of alternatives such as coal. In particular, he said, “reliance upon coal, on the other hand, could aggravate the ‘greenhouse effect,’ whereby excess carbon dioxide (which accompanies coal burning) traps heat inside the earth’s atmosphere, thus possibly melting the icecaps and raising the level of the oceans.” He apparently viewed this as a speculative concern, however, since he immediately added that coal “more realistically” could cause harm to coal miners and other health effects. The other article about nuclear power also observed in passing that “coal combustion may disrupt global weather patterns by increasing the amount of carbon dioxide in the atmosphere, creating a ‘greenhouse effect.’”

***** 

In another article, Herbert Taubenfeld recounted that:

“In 1980, when I spent the summer with the International Division of the EPA, I did an exercise in ‘forward drafting.’ I tried to draft an international treaty limiting the production by all methods of carbon dioxide (to control the global warming trends caused by increasing levels of carbon dioxide) and limiting the production of chlorofluorocarbons (in particular, limit the production of freon, which is the most important element used in refrigeration and air conditioning processes).”

*****

Edith Brown Weiss

A 1981 article by Edith Brown Weiss provided the most thorough (as well as thoughtful) treatment of the climate change issue.... Given the higher level of scientific uncertainty forty years ago, Brown called for consideration of a series of measures, including requiring environmental impact statements to include CO2 emissions, removal of CO2 from smokestacks, and limits on the use of coal. She also called for international consultations and for strategies to deal with deforestation.  Given the uncertainties, however, she said that the issue “should not be pushed into high-level political debates that would cause countries to adopt premature positions based on inconclusive premises and embedded in national political rhetoric.”

I suspect that there were several reasons why legal academics failed to focus more on climate change in this early period. First, the problem was more remote forty years ago than it is today. There was also much more scientific uncertainty about the magnitude of warming and its impacts than there is today. Second, there weren’t any legal developments to talk about, with the first UN treaty 7-10 years in the future. Third, there was so much else going on in environmental law. For instance, Weiss wrote the year after the Superfund law was passed and barely a decade after the Clean Air Act went into effect.

Whatever the reason, legal scholarship seems in retrospect to have been a bit slow to focus on the issue of climate change.  With a few exceptions, legal academia cannot claim much credit for foreseeing how large the issue would loom in the future (now).

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.

Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

*****

The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Trends in commons scholarship

More on (transatlantic) commons scholarship: The editors of the International Journal of the Commons (Frank van Laerhoven, Michael Schoon, Sergio Villamayor-Tomas) just published an interesting quantitative review of commons scholarship over the last five decades, "Celebrating the 30th Anniversary of Ostrom’s Governing the Commons: Traditions and Trends in the Study of the Commons, Revisited". There are interesting statistics and tables on journals, citations, disciplines, and more. (For a different take on the history of the field, see The Tragedy of the Commons at 50.) Some highlights:

The start of commons scholarship can be understood as growing out of a rejection of Hardin’s prediction of natural resource degradation unless managed by governments or through private property rights (Poteete et al. 2010). Over time, however the approach appears to have been evolving.

*****

Arguably, commons studies grew out of concerns associated with the tragedy of the commons. Accordingly, typical studies of the commons have been associated with local contexts, particularly with common pool resources such as forests, fisheries and irrigation, and an interest in the opportunities and challenges of common property rights and rules....

Hardin (1968) asked us to “picture a pasture, open to all.” Pastures, together with fisheries, forests, irrigation systems, and water management belong to what the authors of the 2007 study referred to as the “Big Five” in the study of the commons. Through 2007 these topics drew most of the combined attention of commons scholars. Overall, we find that this trend continues [unabated]. Over time, we see a relative increase in interest in water and fisheries since 2007.

*****

Where Hardin claimed that only the state or the market could prevent a tragedy of the commons, Ostrom dedicated most of her career to showing how there is a lot of room on the spectrum that ranges between these two extremes (e.g. Ostrom, 1994). Figure 18 presents a crude way to gauge our field’s attention to the market, the state, and self-governance over time.

Juergensmeyer and transatlantic commons scholarship

We've written before (here and here) on Julian Juergensmeyer as an early scholar of environmental law in the United States. The Journal of Comparative Urban Law and Policy recently published a Festschrift in his honor, including an article by Becky Jacobs, "Professor Julian Conrad Juergensmeyer's 'Impact': Scholarly, Theoretical, and Practical". Jacobs notes the influence of Juergensmeyer's "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem" (co-authored with James Wadley), published in Natural Resources Journal in 1974. 

There's a deeper "Atlantic crossings" story here, too, one which I have yet to fully explore: The 1974 article was preceded by an earlier one by Juergensmeyer, with overlapping content and a similar title, "The Common Lands Concept in American Jurisprudence", published in a 1973 issue of the Belgian Revue De l'Institut De Sociologie. The special issue on "Les Terres Communes: Eléments d'approche historique et comparative" contained a series of articles by scholars on communal property in various legal systems: Scotch, Soviet, French, Belgian, African, and American. The other authors were all European, mostly from Brussels. 

Yet the origins of the issue were actually American. As Jacques Vanderlinden explained in his introduction (see below), the idea for the collection arose among the editors of the Boston University Law Review in 1970 (presumably when Vanderlinden was visiting BU), but subsequently dropped by the next editorial board. So the project moved to Brussels and took on a more European cast; Juergensmeyer must have been picked while he was studying in Europe in the early 1970s.

Modernisation in English nuisance law

I somehow missed this one from Ben Pontin: "A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’". published in Legal Studies in 2018. The abstract:

The paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.

For the uninitiated (like me), Pontin explains in the article (I've removed footnotes and added links):

The idea under consideration of a mismatch between formal law and academic exposition opens onto well-charted territory. David Sugarman made an important contribution to this with his critique of the ‘English textbook tradition’. Sugarman's thesis is that Victorian and Edwardian-era legal scholars, exemplified by Professor Frederick Pollock, wrote textbooks that emphasised the permanence of common law principles, downplaying their changeability. They did so in order to counter a negative impression of the common law as chaotic and unpredictable, and thereby unworthy of a university education. The crucial part of Sugarman's analysis for present purposes is that textbook understandings of the common law are ‘not reducible’ to the law itself. Against this, William Twining has suggested that formative legal scholars were attuned to the common law's spontaneity, and that Pollock was in fact in the vanguard of a proto-realist understanding of ‘living law’. In defence of Sugarman, I argue that Pollock and other scholars writing about nuisance overlooked the modernity of contemporary case law. 

Sir Frederick Pollock, 3rd Bt (by Lafayette)

Some foundations of modern British environmental law

The recent issue of the Journal of Environmental Law has a review by Stephen Tromans of Richard Macrory's Irresolute Clay: Shaping the Foundations of Modern Environmental Law (Hart, 2020). An excerpt:

In a series of Chapters, Macrory looks at the development of the profession of environmental law: the ‘early sparks’ of environmental law as an academic discipline; practising environmental law as a barrister; and the ‘coming of age’ of academic environmental law. Here of course, the author is on strong ground, having been at the heart of the development of environmental law as an academic discipline since its inception. He has also had some, though very limited, experience of advocacy at the environmental Bar.

Chapter 3 deals with ‘the emergence of environmental lawyers’ in the UK, covering forerunners such as Professor Jack Garner, the Lawyers’ Ecology Group founded in 1972, and the inception of the UK Environmental Law Association (UKELA) in 1986. Having been involved in that process, it is always interesting to read about it, though how interesting generally to later practitioners may be questionable. The key point made is the undoubted development of environmental law ‘as a distinct and vibrant field’—the growth of UKELA reflecting that development. Macrory concludes that ‘the notion of both environmental law and environmental lawyers seems now to be fully embedded in our legal system.’ As in other areas, the possible weakness of the analysis maybe derive from the quite narrow focus of the author’s own personal journey, which does not really provide a full account of why and how environmental law came to achieve that position. In particular, a fuller analysis might have revealed quite a complex synergy between different areas of the law and different types of lawyers.

The strength of an organisation like UKELA has always been that it has drawn together lawyers from private practice, both as barristers and solicitors, lawyers working in house with industry, increasingly—and to be welcomed—lawyers working for environmental NGOs, lawyers within central and local government and agencies, as well as academics (and as Macrory points out, also many members from non-legal professions). The teaching and research in environmental law burgeoned in the late 1980s and 1990s, with many noted academics not mentioned in Macrory’s book—for example, Brian Jones and Michael Bowman working with Professor Garner in Nottingham; the engaging David Hughes at Leicester, who wrote one of the first student texts on the topic; the late Simon Ball at Sheffield, who wrote the other, later joined as co-author by Stuart Bell; Lakshman Guruswamy at Durham; Lynda Warren at Aberystwyth; and others. However, a relatively small cadre of academic lawyers would not have sustained the subject. What was also instrumental in the development of environmental law was that it became possible for people who had studied it to go on and get a job in that field and have the opportunity of making it their career. This occurred in the early 1990s because the major solicitors’ firms, and their clients, particularly US companies, began to regard environmental law as a necessary and even desirable practice area. New legislation such as the Environmental Protection Act 1990, and new EU Directives being transposed into UK law, meant that there was a need for advice on compliance. Perhaps even more important, from a commercial perspective, was the recognition of environmental risk—particularly the risk of liability for historically contaminated land—in transactions. These included loans, with very considerable interest and concern by the mainstream banking industry in such risks. The result was rapid growth in environmental departments in established London firms and the appointment of environmental lawyers as partners to head them, in some cases being appointed from an academic background. This provided strong support for the development of environmental law and the incubation of a future community of environmental lawyers and is a strong factor in it becoming an established practice area.

Water pollution regulation: an economic analysis

Last year the Journal of Economic Perspectives published "US Water Pollution Regulation over the Past Half Century: Burning Waters to Crystal Springs?" by David A. Keiser and Joseph S. Shapiro. The abstract:

In the half century since the founding of the US Environmental Protection Agency, public and private US sources have spent nearly $5 trillion ($2017) to provide clean rivers, lakes, and drinking water (annual spending of 0.8 percent of US GDP in most years). Yet over half of rivers and substantial shares of drinking water systems violate standards, and polls for decades have listed water pollution as Americans' number one environmental concern. We assess the history, effectiveness, and efficiency of the Clean Water Act and Safe Drinking Water Act and obtain four main conclusions. First, water pollution has fallen since these laws were passed, in part due to their interventions. Second, investments made under these laws could be more cost effective. Third, most recent studies estimate benefits of cleaning up pollution in rivers and lakes that are less than the costs, though these studies may undercount several potentially important types of benefits. Analysis finds more positive net benefits of drinking water quality investments. Fourth, economic research and teaching on water pollution are relatively uncommon, as measured by samples of publications, conference presentations, and textbooks.

Hartog on property in land and water

Monk's Ditch in the Gwent Levels, Wales, land reclaimed in the Roman period

As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine:

I spent many hours reading and rereading those waterlot deeds [granted by the eighteenth century Corporation of the City of New York]. I wrote many pages that unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.

In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.

A plea for more historical awareness in environmental law

The latest issue of Rechtsgeschichte has a generous review by Jan-Henrik Meyer of my chapter in the Oxford Handbook of Legal History, "Historical Analysis in Environmental Law". Meyer writes:

Schorr ascribes the lack of historical awareness to the apparent novelty of the subject area. Environmental law as a field only emerged in the wake of what already some of the contemporaries self-confidently described as the »environmental revolution« of the early 1970s. In a short span of time, roughly between 1969 and 1973, promoted by international organisations such as the OECD, NATO, the United Nations (UN) and pace-setting governments – notably the United States and Sweden – the environment emerged as a new area of policy and legislation. New institutions such as environmental agencies and ministries were established. Ambitious environmental action programmes were drafted, outlining legislative and administrative measures. The nascent environmental movement first gathered internationally around the UN Conference in Stockholm in 1972. Environmentalists critically observed and pushed these new institutions to make and shape the new environmental law. Consequently, environmental law quickly became a new subfield within government administrations, legal practice, the courts and legal scholarship.

The apparent novelty of environmental law tends to induce environmental lawyers to discount the importance of history, Schorr rightly argues. Not only do environmental lawyers frequently ignore the longer-term historical legacy, they also tend to forget that conflicts about and regulations concerning the use and abuse of nature and natural resources are not something altogether new. Schorr deplores that practitioners in particular tend to refrain from using history and historical precedent as an »argument«. This is both counterproductive and counterintuitive in the field of law, where arguing with precedent is standard practice, as many non-lawyers were reminded recently when the House of Commons’ speaker John Bercow’s mobilised 17th-century precedents of parliamentary procedures to fend off a third Brexit vote.

David Schorr is aptly placed to raise such a critique, as he is one of the few specialists of both legal history and environmental law. Schorr’s point of departure is thus a plea for a greater historical awareness in environmental law and among environmental lawyers. He convincingly argues that a longue durée view of environmental law avant la lettre would be extremely insightful. Scholars and practitioners should consider the large body of rules and regulations on nature, property, nuisances, pollution and resources produced long before such norms were actually defined as and subsumed under the new umbrella of »environmental law« in the early 1970s.

Schorr convincingly demonstrates the extent to which legal historical scholarship remains isolated from the burgeoning interdisciplinary field of environmental humanities. He is right in diagnosing a lack of dialogue with environmental history, a growing field in which legal and political aspects of human interaction have always featured prominently. For decades now, environmental historians have analysed legal texts as sources for understanding human use of natural resources, for instance, through forest codes, water laws or human attempts to protect public health through rules for urban sanitation. Such proto-environmental law often dates back to the Middle Ages or the early modern period.

Even environmental history research focusing on more recent decades involves the law: Environmental movements often pressed for legislation or used the courts, for instance, to stop the construction of nuclear power plants. Indeed, the existing legal scholarship on such issues is largely from the 1980s, when activist lawyers or administrative lawyers specialising on such issues followed up on current developments. Thus Schorr’s plea for more mutual awareness and interdisciplinary collaboration between environmental history and legal history – putting together the skills and expertise of both disciplines – is very timely. Such long-overdue cooperation is something also the author of this review is committed to.

*****

There is a sense of both scholarly and political purpose to Schorr’s final plea for a renewed emphasis on legal historical research and to using historical knowledge thus generated as an argument in legal and (thus) political debates. Three issues, he argues, are at stake: First, deepening historical knowledge is necessary and useful to better understand current environmental law. At first sight, his argument about making history relevant seems very convincing. Many political claims, such as the supposed superiority of private (vs. state) regulation, could be put to a test, with the historical record acting as a referee. However, such a view treats history as an ancillary force whose main purpose is to provide empirical evidence to back certain arguments in theoretical and political discussions. Many self-respecting environmental and legal historians would frown upon ascribing history such a role. They would also highlight methodological issues – such as anachronistically applying a clear binary distinction of public vs. private rule-making to pre-modern times, or point to contextual factors that make a comparison across time highly problematic.

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.

Farber's 1981 casebook

Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981:

Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then.

Even though the statutes are the same, there have been a massive number of new regulations and court decisions. In 1981, we were able to cover both the Clean Air Act and the Clean Water Act in just over a hundred pages of fairly large print. In the latest edition with Ann Carlson, covering those statutes takes 170 pages in much smaller print. (The next edition will add one more co-author, William Boyd.) In 1980, we could excerpt just about every Supreme Court environmental case, but now there are too many. And of course, there’s CERCLA now. Despite dropping an important topic (public lands) and having smaller print, the latest edition is over 200 pages longer.

I was also interested to see that the 1981 edition had a chapter on federalism, including restrictions on state environmental regulation. We also included some material on the ability of cities to pursue environmental regulations under state law. Both have remained hot topics and the subject of frequent litigation today.

The 1981 edition was ahead of its time in one way: there was a separate chapter on energy and the environment. The amount of pride that I can take in that is dimmed, however, by the fact that we dropped that chapter very soon thereafter and redistributed the contents to other chapters. People had lost interest in energy issues at that point. 

Savagery, civilization, and property I: Introduction

To cap the series I've been doing on "The Tragedy of the Commons at 50" (the last post is here), I'm going to post my own contribution to the issue (SSRN, Academia), in installments. I'd be really happy to get feedback.

This series makes a simple claim: that the commons theory of the last half century, in its various forms and schools, has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” passed down to the twentieth century through the disciplines of anthropology and human ecology, and strongly entrenched in the patterns of thought of property theorists to this day.

I do not wish to argue that recent thinkers deliberately or consciously based their theories on early modern precedents, nor do I claim that their theories simply recast old theories, pouring old wine into new bottles. What I wish to argue, rather, is that modern commons theory is a series of variations on a theme, the theme being the passage of human societies from stages of “barbarism” or “savagery” to “civilization.” This way of thinking, largely elaborated in the eighteenth century, has proved to be so powerful that it continues to shape the discourse around common property and environmental commons into the twenty-first. As Nathaniel Wolloch has argued with respect to similarities between stadial theory and Norbert Elias’s civilizing-process theory, “the similarities between these two perspectives are much clearer than their differences, and point to a continuing tradition in modern historiographical interpretations of the rise of civilization.” For Elias’s theory substitute property theory, and for historiographical interpretations of the rise of civilization substitute theoretical interpretations of the rise of private property, and you have my argument.

The significance of this claim lies not only in its implication that modern commons theory has been somewhat confined by the straits of a discourse of which it is not even always aware. It lies also in that its portrayals of transitions between property regimes largely partake either of Enlightenment assumptions of civilizational progress or of a Romantic reaction to this attitude, with its valorization of the primitive. Thus do deep cultural attitudes, rooted in the speculative thinking of an earlier age, color todayʼs theories — positive and normative — of the commons.

A commons

To set the stage, consider the concrete examples or allegories used by commons theorists of the last half century, to be discussed in the next post. Nearly without exception, they have skipped over such familiar but prosaic commons as cooperatives, condominiums, corporations, and neighborhood associations, in favor of studies of the exotic worlds of hunters, herdsmen, and smallholding farmers. The reason, I suggest, is the continuing influence of early modern theories of civilization.

After describing (in post II of this series) these earlier ways of thinking I will note (in post III) the striking similarities of recent theories of the commons to the earlier models, and then (in post IV) try to trace the channels of influence. I will conclude with why I think this matters.

Trends and approaches to the commons in historiography

Next to last in our series on "The Tragedy of the Commons at 50" (the previous post, on Carol Rose's article, is here) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography". The abstract:

This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research. The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long-enduring institutions that efficaciously manage commons. The second line has focused on the conflicts caused by exogenous interferences in the management of common land, such as state or market intervention, and their social and environmental consequences. The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level. The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis.

Thomas Malthus

Commons and cognition

Next up in the series of posts on "The Tragedy of the Commons at 50" (the last post is here) is the article of my co-editor for the volume, Carol Rose, "Commons and Cognition". The abstract:

Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. While Hardin viewed the herder’s attitude as identical to that of actors in many other collective action situations, the work of other commons theorists suggests several different cognitive stances among such actors, largely depending on the scale of the commons issues they face. Thus participants in the Prisoner’s Dilemma (a very small commons) would appear to be dominated by distrust rather than the hypothetical herder’s ignorance or indifference. Participants in midsized commons — such as Hardin’s herders in real life — show some distrust, but also great knowledge and engagement in common pool management. Participants in the largest-scale commons issues are actually those most likely to exhibit the ignorance and indifference that Hardin attributed to the herder. This Article discusses the ways in which these different cognitive stances track the scale of collective action “tragedies” as described by major theorists and concludes with some observations about the cognitive aspects of climate change.

Robert Axelrod, author of The Evolution of Cooperation (1984)