CFP: Law and Art in the 19th Century: Power in Images

Here's a call for papers for a conference set to take place at the Universita’ di Verona this coming October, on a topic that I think relevant to the intersection of environmental and legal history:

The research team, set up to further study the project Images, Law and Power in the Modern Age, within the framework of the Excellence Project of the Department of Legal Sciences of the University of Verona (2018-2022), is organising a conference on the theme of the artistic representation of law in the 19th century, from the French Revolution to the early twentieth century.

The purpose is to investigate the ways in which, during the nineteenth century, the substantial change in the structural characteristics of the legal phenomenon, and the emergence of an alternative legal experience, corresponded to the replacement - or re-semantization - of the symbols and images traditionally expressed in the law, so that they were more suitable to convey the new concept of the juridical in society.

Details are on the conference website.

Elihu Vedder, Good Legislation mural, Library of Congress Jefferson Building (1896)

Control of outdoor advertising

The Historical Journal recently published James Greenhalgh's "The Control of Outdoor Advertising, Amenity, and Urban Governance in Britain, 1893–1962". The abstract:

This article examines the control of outdoor advertising in Britain, tracking its development as a mirror of the practices of spatial governance. It evidences both a largely forgotten, yet radical change in the urban environment, whilst also functioning as a lens through which we might examine local government's role in driving change in the visual environment of cities and towns. The article argues that, despite important early work by preservationist organizations, local corporations and councils were the principal drivers of legislation, altering attitudes in central government that ultimately led to stringent control of outdoor advertising in urban space. Beginning in the nineteenth century, but coming to the fore during the interwar period, corporations and councils pushed for ever greater controls over the size and siting of billboards, hoardings, and posters. In doing so, they deployed a language of amenity, and conjured with seemingly social democratic notions of citizens’ rights to push their agenda. The study is thus revealing of the ways in which town planning, patterns of holistic control in the visual environment, and the philosophy of urban modernism shaped even the most mundane, extant urban areas and left a lasting impression on the urban landscape.

Historical Analysis in Environmental Law V: What is to be done? Police, public health, statutory nuisances, planning and zoning, labor law, and literature

In the last post in this series I suggested looking at the histories of commons regulation, forest law, and 'police' to better understand the historical roots of modern environmental law. Before moving on to note several other relevant areas of historical law, I would like to note that while critics (most recently Markus Dubber) have impugned police for its broad discretion and patriarchal foundations, these very elements were powerful enablers of environmental regulation in the public interest. Moreover, the opposing tradition that Dubber identifies—the Enlightenment ideal of the 'rule of law'—has often used the liberal ideal of private property to frustrate public-minded environmental regulation. In any case, police regulations, with their wide remit and geographic dispersion, are natural places to look for sources of modern environmental law. Noga Morag-Levine has indeed made the connection between early modern 'science of police' and later regulation of air pollution, but it is likely that 'police' was—for better or worse—a fertile source of much more of environmental regulation than we yet realize.

An important sub-set of police regulation was the public health law that grew up in the Victorian age as a response to the urbanization and industrialization of the period, giving expression to the sanitary movement's concern with the effects of environmental degradation on human health and welfare, particularly of the working classes. Public health statutes, bylaws, regulations, and licenses regulated issues such as smoke pollution, industrial odors, and sewage disposal. This highly developed area of law could be investigated for its influences on later environmental law, including its emphasis on technical solutions to pollution problems and the division of labour between central and local regulation that continue to characterize the field. Public health law is also likely responsible for the creation of a bureaucracy of professionals with expertise in the health and engineering aspects of pollution that would form the core professional staff of modern environmental regulators.

Associated with public health law in the Anglo-American world was the law of statutory nuisances. Statutory nuisances allowed for private and public administrative and criminal enforcement of prohibitions on various forms of pollution and encroachment on the public domain, and thus are a likely source of much modern environmental law. Moreover, this area of law may be a source of the prevalent confusion over the role of nuisance law in the pre-1970 area. It may be true that 'nuisance law' was the dominant vehicle for environmental regulation in this period; yet the category of 'nuisance' included not only a common law variant (private and public, the latter of which could be criminally prosecuted), but also statutory nuisance, with its explicit prohibitions on specific types of environmental harms and risks, such as discharges of pollution into water sources and emissions of 'noxious vapours'. If the law of nuisance one imagines is the private, common law of nuisance usually thought of, modern environmental legislation might indeed seem to represent a major revolution. If, on the other hand, statutory nuisance is given its due, the environmental legislation of the 1970s may look more like an elaboration of existing law.

In search of post-Brexit England

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

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

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

In the History Carnival

This month's History Carnival, hosted by "Art and Architecture, mainly", featured, among an amazing variety of history blogs, Mark Weiner's post on Austrian law and landscape, and my own series on art and the history of environmental law.

Also check out the post on the current Israel Museum exhibit, "Twilight over Berlin: Masterworks from the Nationalgalerie 1905-1945" (and visit the exhibit if you can).

George Grosz, Grey Day, 1921

Art and the history of environmental law - part VI: Art and hidden environmental law

The last part of a series based on my article on art and history of environmental law. After looking at what art can teach us about environmental law's historical effects, we turn now to how works of art document historical environmental law itself, exposing historical law we might otherwise not know about.

Smoke over Des Moines (right), discussed in Parts IV and V of this series, does more than document the contemporary concern over air pollution that served as the background for the mid-twentieth century’s wave of environmental legislation or the failure of early legislation to solve the problem; it also alerts us to the very existence of air pollution regulation in mid-twentieth-century America, penetrating even to a relatively small Midwestern city. The poster is useful on yet another level, disclosing the legal and institutional form—local ordinances and smoke commissions—that the regulation often took in this period, thereby helping the modern historian bridge the conceptual and semantic gap between today’s legal forms and those of the past.

The WPA poster also opens further avenues of inquiry about environmental law circa 1940. We know from other sources that smoke commissioners and inspectors were appointed under a local Des Moines ordinance. Yet it was the St. Louis Smoke Commissioner, not a local official, who was the featured speaker of the advertised event. Historians have noted that the St. Louis Commissioner, Raymond Tucker, was a particularly effective and influential figure in the American anti-smoke movement, and the 1940 St. Louis ordinance that he pushed through and zealously enforced attracted attention outside the city.  The poster’s recording of Tucker’s visit to Des Moines, probably in early 1941,  might indicate the arteries of legal influence through which environmental norms flowed between jurisdictions during this period, raising questions about whether law traveled as a disembodied printed text or as a companion to flesh-and-blood travelers, and about the possibly limited geographic scope of legal diffusion during this time.

Turning to land use law, Monet’s work is once again suggestive. His 1870 paintings of the beach and boardwalk at Trouville (e.g. The Beach at Trouville, 1870, Wadsworth Atheneum, right, and La Plage à Trouville, 1870, private collection) display an interesting feature—the apparently flush building line and open beach.  Beach setbacks are a hot environmental issue today, but a supposedly recent one, as evidenced by historic building right up to the shoreline in many places. Assuming Monet’s depiction of the beach setback is historically accurate—its repetition in at least two paintings suggests it is—why did the owners of the expensive real estate in the trendy Norman resort not take advantage of the full extent of the beach to increase the built areas of their casinos and hotels? Why did they leave the beach open to the public?

The straight building line indicates a measure of coordination, and the owners’ withstanding of the temptation to “defect” and extend their buildings further out toward the sea suggests a degree of legal coercion. What kind of legal norm operated here is a mystery. Was it a French version of the “public trust doctrine”? A local initiative to preserve the tourist-attracting beach, anchored in local ordinance, contract, or servitude? An early law aimed at beach preservation, or perhaps one that sought to prevent storm damage to built structures? In any case, that Monet’s eye was drawn to this feature seems to attest to both its salience and its aesthetic value in the eyes of contemporaries.

Similarly, while Victorian environmental law may not have brought about clean skies, some paintings hint at other effects. Though mandating minimum chimney heights in order to lift pollution away from populated areas (transferring the fallout somewhere downwind) was apparently a product of the twentieth century, earlier paintings suggest that minimum chimney heights were being established already in the nineteenth. The multiple smokestacks in Caillebotte’s Factories at Argenteuil and Pissarro’s Bords de l’Oise à Pontoise (both in Part III of this series), among others,  appear to be of uniform height, towering above the squat chimneys in earlier paintings, such as De Loutherbourg’s early nineteenth-century depictions of the iron works at Coalbrookdale, Shropshire (below).

Phillipe Jacques de Loutherbourg, Iron Works, Colebrook Dale
(engraving William Pickett), 1805,
Science Museum at Wroughton

The standardization of heights evident in Caillebotte’s and Pissarro’s paintings from the latter part of the century suggests a legal moment behind the smokestacks’ specifications. Whether the elongated stacks were a uniform response to legislation requiring consumption of smoke, to more specific technical requirements imposed by legislation or licensing procedures such as the enquête de commodo et incommodo, or an attempt to head off nuisance suits by adopting industry-wide best practices needs to be investigated, but their artistic rendering at least opens this avenue of historical inquiry.

These examples suggest that while it may be difficult to discern the precise content of environmental law from artistic sources, these sources can at least alert us to the presence, and sometimes the form, of environmental legal norms, in historical contexts in which we might not have suspected their presence. Art can thus be a tool for understanding not only the preconditions and effects of environmental law, but the law itself.

*****

To sum up this series, I would say that art can provide a valuable set of historical sources for understanding the cultural attitudes toward the environment against which environmental law did or did not develop. It can also help evaluate the effects of environmental law, particularly as these were perceived in history. While its utility for uncovering environmental law itself is probably more limited, we have seen that it can at least suggest lines of historical inquiry into the presence of environmental law and the form it took.

If you haven't seen the rest of this series or the original article, please take a look. I would appreciate your thoughts, as well as further research in this field!

Art and the history of environmental law - part V: Art and the effects of environmental law

The latest in a series based on my article on art and history of environmental law. After looking at what art can teach us about the historical background of environmental law, we turn now to what we can learn from it about environmental law's effects.

James W. Earl, Twelve Square Miles, 2010 (courtesy of the artist)

Hugh Ferriss, Study for Maximum Mass Permitted
by the 1916 New York Zoning Law, Stage 4, 1922,
Smithsonian Design Museum, Cooper Hewitt collection
(courtesy of the Smithsonian Institution)

The effects of law on landscape are clearly seen in the case of land use law. The U.S. Northwest Ordinance’s imposition of Cartesian order on the living earth is perhaps best appreciated through often beautiful satellite or aerial images (e.g. above). The effects of New York City’s famous zoning ordinance of 1916 were given visual form in Hugh Ferriss’s drawings (e.g. right) and in photographs of the architectural icons built under the code (e.g. below). And the environmental upheaval wrought by American postwar suburban zoning ordinances was given early expression in the utopian/dystopian photographs of places like Levittown, Long Island (below).

Samuel Gottscho, Chrysler Building Midtown Manhattan New York City 1932

Thomas Airviews, Aerial view of Levittown, 1949
(courtesy of Levittown Public Library)

Art and the history of environmental law - part IV: Art and the conditions of environmental law (twentieth century)

Following Part III of this series, featuring the French Impressionists and Oscar Wilde, we move on to the twentieth century.

Franz Marie Jansen, untitled, from Industrie, 1920

In the first half of the twentieth century, air pollution seems to take on a progressively darker cast, both literally and figuratively. While it is difficult to read the pollution in many posters of the interwar era, such as one for the 1925 Paris Exposition Internationale des Arts Décoratifs (above), as anything but a symbol of progress, in the works of the German Expressionists such as George Grosz and Franz Marie Jansen (right), pollution often seems an inseparable part of their generally bleak world view.

George Grosz, Outside the Factories, 1921

Beyond the cultural and aesthetic, American art in this period also seems to begin to engage with pollution as a political issue, and thus potentially a legal one. An early but suggestive understanding of pollution is offered by the symbolist Elihu Vedder’s mural Corrupt Legislation (below) created for the new Library of Congress building around 1898. Art historian Richard Murray explains:

Art and the history of environmental law - part III: Art and the conditions of environmental law (more Impressionists and Wilde)

Following Part II of this series, I continue the discussion of art and the conditions of environmental law as seen in the work of the French Impressionists.

Monet and Pissarro produced many landscapes of the industrializing Seine Valley around Paris, as did other Impressionists and Post-Impressionists. Manet’s 1874 Argenteuil, les canotiers (1874, above), with its idyllic foreground and smoky background, seems uncertain in its attitude to industrial pollution. It was ridiculed by a contemporary critic who insinuated that the blue of the river must have been the product of industrial pollution, yet T.J. Clark sees it as the picture in which effort was made to place in order the middle class, the countryside, and industry “and insist they belong together.”  

Gustave Caillebotte’s depictions of the same site show a cubist-like ability to shatter reality into multiple points of view. While his Boats Moored at Argenteuil (1883, above) shows no hint of the industry in the area, Factories at Argenteuil (1888, right) shows a bleak industrial landscape with gray smoke feeding gray skies, reflected again in the gray water. La Seine à Argenteuil (c. 1892, below), with its almost natural landscape dominating the foreground and smoking factories in the background, juxtaposes these two aspects of reality, distinguishing, on the one hand, between pristine nature and industrial pollution, yet at the same time melding chimney smoke and natural clouds.  Are these depictions of Argenteuil simply the artist’s attempt to depict different facets of reality, a celebration of industrialization, or a critique and warning of the threat posed by modern pollution to the aesthetic of nature and countryside?

Art and the history of environmental law - part II: Art and the conditions of environmental law (Impressionists and Dickens)

Following Part I of this series, today I take up art and the conditions of environmental law.

A survey of paintings and other works of art from Western Europe and North American reveals that air pollution was a salient fact in the pre-1970 industrialized West. This point, while basic, is not trivial, as one might have imagined that the relative lack of advanced legislation in this area was due to clean skies, or at least to a lack of awareness of the problem. Yet it is clear that artists from Turner to the French Impressionists and on through the American Works Progress Administration were fascinated by air pollution. The aesthetics and politics of this fascination will be explored later; at this point it will suffice to demonstrate its prevalence.

A good place to start is the French Impressionists. Though associated today with paintings in and of nature, they were strongly attracted to scenes of industrialization and modernizing landscapes. The movement was named after Claude Monet’s Impression, soleil levant (1872-73, right), a painting relevant to our topic. The rising sun is indeed prominent in this landscape of Le Havre harbor, but the left side of the painting is dominated by smoke-belching smokestacks and their reflections in the water. Their activity suggests that the gray “mist” enshrouding the rising sun and streaked through the sky above and to the right is in fact the product of air pollution, not morning mists or the artist’s hazily romantic vision.

Many of Monet’s other paintings feature air pollution as well. His paintings of London typically feature chimneys and smokestacks spewing thick clouds of smoke into the air of a city covered in a thick layer of air pollution (often denoted “fog” in the works’ titles). Perhaps most striking are the paintings purporting to be studies of the effect of sunlight on the thick London air; the reference to sunlight in the names of these paintings seems almost ironic. In Le Parlement, effet de soleil (1903, left), for instance, the sunlight indeed plays upon the Thames on the right of the picture, yet in the overall composition the sun’s rays are overwhelmed by the thick, polluted air, much as they are in other paintings in the Houses of Parliament series.

Dickens provides a literary counterpart to Monet’s paintings of London’s air pollution in the opening of Bleak House:

London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. . . . Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snowflakes—gone into mourning, one might imagine, for the death of the sun . . . .

Art and the history of environmental law - part I: Introduction

I'm happy to report that my article, "Art and the History of Environmental Law", has been published by Critical Analysis of Law. CAL's online format, along with excellent editing, made publishing an article with lots of color pictures a real possibility; my article has 29 color figures, a level of illustration impossible in print journals, even one as amenable as Environmental History to this kind of work.

Claude Monet, Boats in the Pool of London, 1871, private collection 

Since I really like the pictures I collected, I decided to share some of them on this blog as well, along with modified excerpts from the article, in a series of posts. Today's, the first installment, outlines the justification for the project.

The first reason for my turn to art is prosaic. Traditional legal sources—treatises, digests, national legislation, and appellate decisions—clearly dedicated to identifiably environmental topics were few and far between before the 1970s, and so legal-historical research of even the simplest sort—identification of the norms of positive law—needs to take up whatever tools, however indirect, it can find. Though the physicality of the environment seemingly makes environmental law a good candidate for historical investigation based on visual sources, the legal element of environmental issues has only been foregrounded infrequently in art, even when environmental issues are clearly the subject of that art. Beyond this seemingly technical task, art may be a useful source for two further dimensions of the historical understanding of environmental law: it might provide insight into the background conditions—environmental and cultural—against which and in reaction to the law developed; and it might provide data for assessing the effectiveness of environmental law.

It is, of course, problematic to assume that a work of art presents an accurate representation of historical reality;  even on the level of subjective perception, assuming that the work of an individual artist is somehow representative of general attitudes may be unwarranted. Nonetheless, the potential profit to be gained from this heretofore unexamined set of sources seems great enough to justify a tentative attempt at using art to try to learn something about the history of environmental law that we might not be able to learn otherwise. In this article I would like to use art mostly as evidence of historical attitudes towards environmental issues, but I believe that it also has some value as evidence of the physical environment in history. As Peter Brimblecombe writes:

Corrupt (and polluting) legislation

I recently gave a paper on environmental law in art, on which I plan to post soon (see here). In the meantime, today's post by Dan Ernst at Legal History Blog, the final one in his series on his new book, provoked further thoughts on the subject. Ernst mentions two murals by Elihu Vedder in the Library of Congress, part of a five-mural set on "Government" executed in 1895-6. In "Good Administration" we see order and justice against a background of waves of grain.

Elihu Vedder, "Good Administration" (Library of Congress)

In "Corrupt Legislation", on the other hand, the signs of corruption are evident not only in the overturned voting urn and broken scales of justice, but in the polluting industries in the background.

Elihu Vedder, "Corrupt Legislation" (Library of Congress)

I find this intriguing. In Vedder's view, was the pollution of the late-nineteenth-century industrial revolution the result of corrupt legislation? Were the harmful effects of corruption best seen in the permissive environmental regulation of the period? What can we learn from this mural about contemporary attitudes toward pollution and the law that did or didn't control it?

Please let me know your thoughts!