Historical analysis in environmental law II: "The one came not near the other all the night"

Edvard Munch, Separation (1896)

(Continuing the series on historical analysis in environmental law. Links to the full series and the article are here.)

In May 2010 Environmental History, the leading journal in its field, published an article by Aaron Sachs on antebellum environmental thought as expressed in contemporary American cemeteries. A few months later legal historian Alfred Brophy published a blog post on American antebellum constitutionalism as expressed in speeches made in cemeteries. Though both pieces focused on the same cemeteries, with rich discussions of the political, social, and cultural contexts in which they operated, neither work made any reference to the other, nor, indeed, to the literature or historical sub-discipline in which the other was located. Three years later, both pieces were released in expanded form, again with no interaction between them or their scholarly worlds.

This was not an isolated (non-)incident. Though the fields of environmental history and legal history seemingly share a wealth of common interests—the histories of capitalism, slavery, and the administrative state are a few of the topics receiving intense attention in both fields in recent years—the two fields move through parallel intellectual universes with nary a glance at one another.

If there is a certain symmetry in the blissful ignorance in which each field operates with regard to the scholarship of its sister field, the same cannot be said of the relative interest each takes in the subject matter of the other. In the last decade (2007-2016) Law and History Review, the leading English-language legal history journal, published only three articles that might be described as engaging with environmental issues; and only one of these—its author an environmental historian, not a legal one—was directly on an environmental topic. Meanwhile the situation in Environmental History, the leading journal in its field, in the same period was radically different; counting conservatively, over twenty-five articles in this journal engaged significantly with legal issues, on a wide variety of topics, including a collection of essays dedicated to a single environmental statute. A similar picture emerges from an examination of leading European journals in the two fields: On the one hand, Journal of Legal History with two articles dealing with issues of public property that might be tagged as environmental and Rechtsgechichte with three on environmental topics; on the other, Environment and History with close to thirty articles with significant treatment of legal issues.

A new metaphor for Magna Carta and property - Part II: A new metaphor for property

The second post by Paul Babie on Magna Carta and the Forest Charter (the first post is here):

Green Man (13th Century), Bamberg Cathedral, Germany
© 1992 Clive Hicks (reproduced with permission)

At the outset of Part I, and of my article, quite intentionally, but without comment, I placed the image of a medieval forest; it is a visual representation of lands as they might have been at the time of Magna Carta. It captures, at least partially, Magna Carta’s legacy for property centered, one way or another, in the individualist-absolutist story.

We have heard this individualist-absolutist story told repeatedly, over a very long time: property as choice structured to suit the interests and preferences of the individual, with that power of choice and control protected against all others, including the sovereign. It has become, more than anything else, a metaphor for the liberal conception of property; the same conception that the Supreme Court adverts to and relies upon again and again, just as Chief Justice Roberts did most recently in Horne. The image of the medieval forest represents, visually, that metaphor. While romantic, that image is misleading and false.

The metaphor of Magna Carta as individualist-absolutist property misleads and is false because it represents only half the story—the other half is told by the Great Charter’s lost sister, the Forest Charter. Without the Forest Charter’s story, a necessary dimension of the freedom and liberty of property—the obligation towards others and towards the community—is neglected. The Forest Charter forces us to find a new metaphor, one that represents the dual stories of property as both individualist-absolutist and as community-obligation. This Section suggests replacing the metaphor in the form of an image that would have been very familiar to Kings John and Henry III, to the barons who forced their hand, and to most other people alive at the time that those kings set their seals upon Magna Carta and the Forest Charter: it is the image of the Green Man.

A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):

A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))

Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:

To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.

And on June 18, Lord Faulks answered:

The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.

At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

Farming, antislavery politics, and nature parks

The latest Environmental History has a book review by Timothy Johnson of Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era (UNC Press, 2015). Johnson writes:

In a new study that traces the relationship between land use and politics not in the South, but in the North, Adam Wesley Dean sets out to challenge the common notion that the war was a conflict between an urban, industrial North and an agrarian South. To do so, Dean looks to the ideology of the Republican Party. The author argues that Republican ideology was “fundamentally agrarian” and shaped by “an environmental understanding of social development” (pp. 2–3). Dean convincingly demonstrates how beliefs about the tenuous relationship between soil and civilization were at the heart of the Grand Old Party’s ideology.....

The first three chapters follow the strand of agrarian thought in American politics from the Northwest Ordinance through the landmark wartime legislation of the Homestead Act, the Morrill Act, and the Pacific Railroad Act. Dean argues that Republicans defined themselves in opposition to the extensive agriculture of the South, where observers like Frederick Law Olmstead cited soil erosion as physical evidence of the moral decay inflicted by slavery. But Dean goes beyond the North-South dichotomy and also moves along the East-West axis to triangulate the centrality of land use to Republican discourse....

The final two chapters take an abrupt turn to postwar debates about park creation in Yosemite and Yellowstone, and then to settlement policies in the South and among Native Americans out West. While these subjects might seem like a detour from earlier chapters, they lead to the book’s most original contributions. One of the more surprising findings relates to the creation of national parks. The conservation question drove a wedge within the party between those who believed that natural beauty could nourish republican virtues and old Free-Soilers who believed that all land—even Yosemite and Yellowstone—should be divided into small farms. The final chapter examines how agrarian thought shaped policy intended to bring freed people and Natives Americans into the national fold after the war. Some readers might take issue with the provocative claim that Republicans “had an environmental view of citizenship,” but Dean makes a strong case that the ideology of soil and civilization hewn in the congressional turmoil in the 1850s helped structure postwar Republican policies in distant regions, long after war’s end (p. 136). 

Agrarian politics and American parks

The environmental history of slavery is a topic that has gotten much attention recently. Thanks to Legal History Blog for pointing out a new angle on this: H-War recently posted a review by Eric Burke of Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era (UNC Press, 2015). Some excerpts from the review:

Historians have long attributed the ascendance of the Republican Party during the late 1850s to its broad appeal with Northern farmers, especially in the Midwest. The political ideology of the party was weighted heavily toward lauding the benefits of the proliferation of small-plot family farming throughout the nation. Indeed, as Eric Foner has pointed out, though Republicans are often connected in historical memory to their efforts to champion industrialization during the Gilded Age, antebellum and wartime Republicans emphatically insisted that America could (and should) remain "a society of family farms and small towns, while still experiencing the benefits of industrialization," and constructed their platform and policies accordingly.

*****

In 1864, Congress... debated the fate of the Yosemite territory in California—a gem of natural beauty that many hoped "would 'civilize' the average person and improve his or her intellectual abilities" upon the mere sight of its splendor, and thus could best serve the public good preserved in its natural state (p. 7). Consistent with their near deification of the smallholding farmer however, radical Republicans disagreed. "The Constitution and the laws are for the protection of citizens and not for the creation of fancy pleasure grounds by Congress," one radical remarked, aptly summarizing the sentiments of many Republicans like George Julian of Indiana (p. 109). Radicals instead argued that the territory should be opened up for settlement by small farmers at once, thus fostering the spread of "freedom, union, and an improved society" (p. 126). The situation was complicated by the presence of "squatting" farmers already productively working the soil of the territory, forcing Republicans to decide whether or not to evict their beloved yeomen in order to preserve the territory's natural beauty for the enjoyment of the public at large—a plan supported by ardent Republican and landscape architect Frederick Law Olmsted. As Dean shows, Republicans fractured on these lines during the Yosemite debates of 1864, with the Olmsted project finally prevailing. But more important, Dean argues, the debates themselves offer a glimpse into the prevailing agrarian ideology of radical Republicans, suggesting that such "environmental controversies were not about preservation versus destruction," but rather were directly "connected to the main political currents of the time" (p. 8).

Also connected to these currents were Republican endeavors to reconstruct the South in the aftermath of victory and "civilize" Native Americans on western reservations. In his final chapter, Dean argues against the tendency of historians to find "inconsistency in [Republicans] promoting African American land rights in the South while curtailing Native American freedoms in the West." Republicans perceived no such inconsistency. "Both groups, they believed, would become small farmers and, in doing so, adopt white cultural values," Dean explains. "Since most northerners lived in rural communities and celebrated the environmental and political benefits of small farming, converting others to their lifestyle seemed natural" (p. 186). By emphasizing this factor, Dean ably supports his claim that "Northern policy makers did not want to industrialize the South and the West," but rather "intended to promote farming communities and strengthen the yeomanry that provided the foundation for republican government" (p. 136). Although perpetual violent resistance and the ever-decreasing tenability of small farming across the late nineteenth century gradually dismantled dreams of "civilizing" the Republic, Dean's approach highlights the continuity of Republican projects across the Civil War and Reconstruction era and "allows historians to make new connections between seemingly different topics" (p. 186).

The environment and the African slave trade

We've noted before (here and here) that the history of slavery, obviously a topic of legal history, has important environmental dimensions, as well. Now, by way of Imperial & Global Forum, we have news of  Emory University’s very impressive Trans-Atlantic Slave Trade Database. At Not Even Past, Henry Wiencek writes that the site

reminds readers that the process of moving enslaved Africans across the ocean was as much an environmental process as an economic one. The map, Wind and ocean currents of the Atlantic basins [below] reveals how oceanic forces played a role in determining the travel routes for slave ships. Red and blue lines respectively denote winds and currents swirling between Africa and the Americas, facilitating particular geographic courses better suited for crossing the ocean. These natural forces effectively created two separate “slave-trading systems,” as the site identifies them: one originating in Europe and North America and the other originating in Brazil. Historians have certainly detailed the racism and greed motivating the slave trade, but comparatively little time examining the environmental processes that made it possible. Particular centers of trade emerged along the coasts of Brazil, the Caribbean and West Africa to meet an economic need, but also to harness the currents and winds essential to moving so many men and women such vast distances.  And here too, the visual character of the map makes it easy to see how natural forces worked to shape the historical events.

Mahogany in early America

The latest issues of Law and History Review and Environmental History both review Jennifer Anderson's Mahogany: The Costs of Luxury in Early America (Harvard UP, 2012). The reviews highlight the way the interaction of environmental history and legal history can shed light on wider topics such as labor, slavery, and empire.

Jeffrey Kosiorek in EH emphasizes the importance of environmental history for the wider social and economic history:

Anderson recognizes throughout that the cultural value of mahogany and its social, political, and economic importance through history cannot be separated from the ecological realities of the trees and the ecosystem they inhabit. For instance, the rich beauty, durability, and size of the wood that made it so desirable is itself a product of the tree’s tropical environment where it grows year-round leaving tightly packed, indiscernible growth rings. Widely dispersed amid many other species, harvesting mahogany not only resulted in deforestation, but it also allowed slaves a degree of autonomy and local knowledge that they could use to gain their freedom. Likewise, the trees’ limited range set off a scramble to control its territory among European powers and individual speculators.And, as extractors depleted the choicest trees, smaller, inconsistent mahogany lumber came on the market, causing a shift in consumers’ taste and understanding of the wood.

Zachary Dorner's review in LHR has more of a legal emphasis:

Environmental history and legal history in the Republic of Nature

The new (August 2013) issue of Environment and History has a review by Lisa Brady of Mark Fiege's The Republic of Nature: An Environmental History of the United States (U. of Washington Press, 2012), which she calls "a sweeping, challenging and utterly engrossing study of America’s past".

Environmental factors, Fiege contends, are present in all aspects of the nation’s past but often have been obscured by a failure to recognise them. Fiege seeks to remedy this by analysing nine historical episodes, most without obvious connections to nature, and by focusing on individuals not known for their environmentalism.

As Brady describes it, the book shifts attention away from the "environmental canon" (e.g. Thoreau, Muir, Carson) to aspects of the American past not typically noted for their connection to environmental history.

Interestingly, at least half of the topics covered by the book are part of the legal history canon—