Throughout the history of disasters, legal solutions of one sort or another have played a significant role in recovery and prevention, as well as in shaping politics and individual behavior. After the Great Fire of London, following an extreme summer drought in 1666, the city council passed new building laws preventing the use of timber and man-dating stone or brick construction.Wood chimneys were prohibited after fires in Boston in 1631 and in New York in 1648. A list of similar legal changes in response to disasters would be endless. Through building codes,urban fire disasters have left visible traces in cityscapes almost everywhere around the world. In fact, because the new norms impact planning and construction for generations, they continue to leave such traces long after the buildings erected in the wake of the disaster have disappeared.
Legal solutions operate at the intersection between government and the members of a political community by sanctioning certain types of individual behavior, either through coercion or incentives. In other words, legal solutions aim to achieve a degree of behavioral homogeneity and predictability that legislators consider desirable. The potential of natural hazards and disasters to trigger cultural transformations over the long term ismost obvious in environmentally vulnerable regions, such as dense urban agglomerations, coastal settlements, or agricultural economies in precarious climatic conditions.
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So far, only a few historians have considered natural disasters as an element in the evolution of governance. The evidence that has been brought to light suggests that natural disasters probably deserve a place in the history of state power—along with war and state competition. Political response to the second Bubonic plague pandemic in Europe, beginning with the Black Death in 1348, evolved over several centuries and left permanent traces in legal and political systems. Robert C. Palmer diagnosed that, in medieval England, the Black Death transformed “the nature of English governance” towards centralization, a new under-standing of governmental authority,and an enlargement of the sphere of legal matters. Such feedbacks of legal regulations in the realm of governance also explain how hospitals, originally invented to interrupt the chain of infection by separating the healthy from the sick, went from temporary to permanent institutions. The same holds true for medical councils, whose members initially had been appointed only in times of high emergency. In the eighteenth century, however, they became permanent, which made them precursors of departments of health in modern nation states.
Over the next couple of days Jews will celebrate Rosh Hashana, the Jewish New Year, also the Jewish Day of Judgment. One of the highlights of the synagogue service for Ashkenazi Jews is the prayer known as Unetaneh Tokef ("Let us relate the power of the day's holiness"), a sort of Jewish Dies Irae,which contains these lines (translation Helen Plotkin):
On Rosh Hashanah it is written, and on Yom Kippur it is sealed.
How many will pass and how many will be created?
Who will live and who will die?
Who in their time, and who not their time?
Who by fire and who by water?
Who by sword and who by beast?
Who by hunger and who by thirst?
Who by earthquake and who by drowning?
Who by strangling and who by stoning?
Who will rest and who will wander?
Who will be safe and who will be torn?
Who will be calm and who will be tormented?
Who will become poor and who will get rich?
Who will be made humble and who will be raised up?
While our modern sensibilities make the causal connection between morality and environmental catastrophe difficult to accept at face value, there is an ethical attraction in the older view's refusal to absolve humans for their responsibility for the suffering caused by "natural" disasters; these become disasters only with the addition of human agency.
As the traditional Jewish New Year's blessing goes, may we all--the wandering and the tempest-tost, as well as those fortunate to have to face only the ethical dilemmas created by the suffering around us--be inscribed and sealed for a good year.
(For more on immorality and environmental catastrophe see here.)
Here's what Gosling has to say about one of the chapters:
Chapter three looks in more detail at the corruption of the law in the early 17th century, and the complaints of those that were expected to use it. The text does this by examining the case-study of The Case of the Isle of Ely (1609), which saw Coke attempt to negotiate the proposed draining of the Fens, the low-land area of marsh and bog in the east of England. This was such a thorny issue because in order to drain the Fens taxes would have to be raised in the surrounding areas, and parts of the Fens would have to be enclosed to incentivise investors. Although this case-study demonstrated how contentious the common law could be amongst the wider population, and how Coke attempted to solve the problems, this chapter more than any of the others feels like an unnecessary digression from the wider argument, with too much time spent looking at the law in the Fens rather than the more pressing topic of common law reform that the rest of the book had set about to describe.
Some might have a different opinion. I would actually like to see a full-length study of the law of drainage; from what I remember from Catherine Drinker Bowen's book on Coke, commissions of sewers were a fertile source of law.
Growing up in the DC suburbs, park police were just part of the scenery, like like ornamental cherry trees and squirrels. I never stopped to think about their origins, or why there are park police alongside regular police. David Thacher's "Olmsted's Police", published in the latest Law and History Review, provides some answers.
Central Park, 1875 (click image to enlarge)
Thacher explains that Frederick Law Olmsted, Central Park's co-designer and superintendent, rejected the deterrence model of policing as unsuited for an urban park, its values, and the harms that threatened it. Writing in 1872, Olmsted explained:
On the park there are no stores of private property, no walls or doors to be guarded, and respectable women and well nurtured children are much more tempted to the class of acts which it is the chief business of the park police to prevent than rogues or ruffians.
The service for which there is the most frequent need on the Central Park is, in fact, that of quietly and civilly pointing out to visitors, and mainly to women and children, how they can best obtain what they desire, so far as it is to be found in the park, and cautioning them in a respectful, courteous, and propitiating way when they may seen to be going wrong, either ignorantly or carelessly, or thorough an inadequate appreciation of the harm which would result in the park from actions which elsewhere often pass as venial, if not harmless. Such, for example, would be the picking of way-side flowers or the hunting of birds’ nests in thickets.
His 1873 General Order to the park police further set out his views:
The danger ... is chiefly this, that a few persons, perhaps one in ten thousand of all who pass near any such place, will tramp across it, and in so doing, stamp out the life of the plants, or will, one by one, pick and misappropriate the flowers to private use. They have no more right to do either than to pick their neighbor’s pockets, throw stones at his windows or vitriol at his coat. Yet, of the comparatively small number of visitors who will crush out the life of the ferns, or steal the flowers, it will certainly be still a very much smaller number who are capable of being led intentionally to do any such wrong to their neighbor... . Much the larger part are capable of being tempted to it only because having had no occasion, under ordinary circumstances, in walking along the streets, or when in the country, through the woods and fields, to consider the rights of others in the way that is necessary in the park, it fails to be clear to their minds that they will be wronging others.
A pernicious myth has it that environmental protection and conservation are a sort of upper-class conspiracy, or at the least a luxury appreciated by the well to do. An H-Urban review by Eliza Martin of Matthew Gandy's The Fabric of Space: Water, Modernity, and the Urban Imagination (MIT Press, 2014) discusses the book's treatment of water in interwar Berlin ("Weimar Berlin" is evocative but confusing), showing that in this context, as in many others, proto-environmentalism was a working-class issue. Martin writes:
Gandy asserts that examining the changing paths water takes through urban spaces gives us new ways of viewing and understanding cities and how they evolve. He is particularly interested in the process of modernization of urban space, and the role water infrastructure plays in that activity. Gandy states that controlling water is a key aspect of modernization and state formation...
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Gandy... demonstrates [the] movement towards an emphasis on nature as leisure, when he discusses changes in urban planning taking place in Weimar Berlin. As part of creating a modern city, Martin Wagner, city building commissioner in Berlin, was concerned with providing residents, especially working-class residents, with an opportunity to have contact with nature. Wagner felt one way to do this was to provide access to local lakes and rivers as spaces of leisure. Wagner moved to protect remaining lakeside land from privatization to keep these areas open for the city as a whole, as a public resource, and provided public transportation to these areas. Here we see links between water and infrastructure as not purely a public health issue, but also as about democratizing access to urban space, and offering working-class Berliners the chance to enjoy urban nature.
Layzer argues that contemporary conservative ideas have had an important and mitigating effect on environmental policy—one that is easily underestimated. In part, this can be explained by the conservative movement’s effectiveness at shaping both how and what policy questions come to the table, and not just how they affect policies once they are in place. The author concludes that the consequences of both the direct and indirect (“low profile”) attacks against environmental regulation by conservatives have led to significant delays in the adoption of regulatory measures, the rollback of existing regulations, and a discrediting of the environmental narrative.
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The evolution of the tools used by conservatives to try to attack the environmental movement is strongly correlated to changes in the understanding of the economics of regulation and the theory of externalities.... What Layzer... point[s] out... is how cleverly the conservative movement was at playing the academic card. When the economics matched the conservatives’ own needs, they adopted them as their own, and when they did not, they pushed the story line of the minority intellectual elite trying to bully the silent majority. For example, the conservative argument that free markets can solve the problems of the environment if governments are not allowed to intervene simply does not hold water when externalities are present. However, that is not the story that the conservative movement spins. The conservatives’ story begins and ends with the efficiency of the free market. On the other hand, demanding cost–benefit analysis when adopting a new environmental rule is a brilliant strategy when one can attack all the uncertainty associated with both the cost and benefit estimates, guaranteeing a slowdown in rule adoption.
Jed Purdy's forthcoming (Harvard Law Review) "Coming into the Anthropocene" is a thoughtful review essay of the book, recently posted. The abstract:
This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and highly contested regulatory and judicial interpretation. This analysis, however, does not limit the interest of Cannon’s analysis to this political moment. Rather, Cannon’s integration of legal and cultural analysis has great promise for the Anthropocene, the dawning era when human decisions and values will be among the most important forces shaping the planet. In the future, it will be necessary to think of environmental law as both reflecting and producing ideas of the value and meaning of the natural world. Cannon’s analysis is an excellent starting point for an Anthropocene approach.
The beach lots at issue in Lucas v SC Coastal Council, the salient case in
which the Supreme Court used Property to limit environmental regulation
(courtesy of William Fischel)
It seems a group of scholars based in Britain is doing interesting work on the history of international environmental law. A paper by Stephen Humphreys and Yoriko Otomo, "Theorising International Environmental Law", puts forward a thesis about the historical tensions operating in international environmental law. The abstract:
This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law.
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.
Erling Nielsen, "The Norwegian Labour Party" (1930) (Thornews)
While political science looks at the past a little differently than does the discipline of history, it can pose theories that can be helpful for structuring or motivating historical inquiry.
A framework is presented for thinking about state intervention in developed capitalist economies in two domains: social policy and environmental policy (and, within that, climate-change policy). Five drivers of welfare state development are identified, the ‘five Is’ of Industrialisation: Interests, Institutions, Ideas/Ideologies, and International Influences. Research applying this framework to the postwar development of welfare states in the OECD is summarised, distinguishing two periods: up to 1980, and from 1980 to 2008. How far this framework can contribute to understanding the rise and differential patterns of environmental governance and intervention across advanced capitalist states since 1970 is explored, before briefly comparing and contrasting the determinants of welfare states and environmental states, identifying common drivers in both domains and regime-specific drivers in each. The same framework is then applied to developments since 2008 and into the near future, sketching two potential configurations and speculating on the conditions for closer, more integrated ‘eco-welfare states’.
The article finds that the two issues actually react differently to the "five Is":
A broad-brush conclusion might be the following. Common drivers of changes in welfare states and environmental states include globalisation and internationalisation, the rising power of capital and business over other classes, and the continuing dominance of neo-liberal ideas. Neo-liberalism is a block to progress in both domains, but the other factors operate in different ways in the two domains. International economic and political linkages favour the environmental state but weaken the welfare state. Business power promotes inequality and weakens welfare and, in many countries, blocks climate-mitigation programmes; but its impact on the environmental state depends on the balance of carboniferous and Green business interests.
On the other hand, institutions and ideas continue to explain cross-national differences in both domains. Deep institutional differences persist across the advanced capitalist countries reflecting welfare regimes and varieties of capitalism. These, interacting with different power and ideational constellations, continue to drive different policy outputs in both spheres of state activity with contrasting social and environmental outcomes. Broadly speaking, these demarcate the Anglosphere from the EU.
The law of toxic torts – those arising from toxic pollution and products – has often been viewed as an application of old doctrine to new problems. While it is true that tort law existed long before the widespread dissemination of toxic chemicals, the common law of nuisance has, since its inception, protected a range of environmental rights and interests. This article will argue that the law of nuisance is a species of environmental law, has always functioned as a form of environmental regulation, and ought to be applied and interpreted as such in the modern era.
