Gender discrimination in the commons

Marco Casari and Maurizio Lisciandra recently posted "Gender Discrimination in Property Rights: Six Centuries of Commons Governance in the Alps". The abstract:

Starting from the Medieval period, women in the Italian Alps experienced a progressive erosion in property rights over the commons. We collected documents about the evolution of inheritance regulations on collective land issued by hundreds of villages over a period of six centuries (thirteenth-nineteenth). Based on this original dataset, we provide a long-term perspective of decentralized institutional change in which gender-biased inheritance systems emerged as a defensive measure to preserve the wealth of village insiders. This institutional change also had implications for the population growth, marriage strategies, and the protection from economic shocks.

Preserving Austrian Forests—and More

“Sustainability is the key principle”—that’s how Bernhard Mittermüller describes the great Austrian Forest Act of 1975 in my latest video, “Preservation Waltz.” Mittermüller teaches at the University of Natural Resources and Life Sciences in Vienna, fondly known as BOKU, and he was kind enough to speak with me for this latest addition to my series about Austrian conceptions of law and the Austrian experience of landscape (discussed previously on ELH here and here).

One of the things that intrigued me during my Fulbright stay in Austria was the way that many of its modern, progressive legal concepts grew out its monarchical past, and they bear traces of that royal origin. In Austria, the echo of monarchy is everywhere, including in jurisprudence.

That’s certainly true of the legal concept of environmental sustainability, which now is enshrined in Austrian constitutional law as a national aspiration. Ironically, the regulation of Austrian forests today grew from the efforts of early modern archdukes and prince bishops to protect the woods because of the critical role wood played in the mining industry. This form of environmental protection involved a forceful assertion of power over the local population.

Even more deeply, the regulation of forests in Austria is inextricable from the development of the modern state as a whole. Whereas in England, the first use of the term “common law” was as a contrast to the law of the forest, in Austria the growth of the national approach to law and governance was based in a meaningful degree on the regulation of  the woods, as the spirited legal historian Martin Schennach of the University of Innsbruck explains.

And so the beauty of the well-tended Austrian landscape, which today forms the life-blood of the tourist economy on which the nation depends; the restriction of private autonomy in relation not only to environmental resources but as a general matter of Austrian social life; the progressive vindication of an ideal of the public good; and the social hierarchy of the Mandarin administrative apparatus which took the place of royal authority—all were of a piece in the formation of Austrian identity. And these links can be perceived, and caught on film, shimmering and hovering about everyday Austrian life.

The video isn’t only about the protection of the forests. It’s called “Preservation Waltz,” and it also meditates on the principles of sustainability, community, and order in two other fields involving law and wood. The first area is Austrian domestic architecture, discussed by Karim Giese of the University of Salzburg, which prizes harmony and uniformity as a form of cultural sustainability. Construction law in Austria is guided by the same resistance to market liberalization present in Austrian forest law.

The second area is the preservation of books (made from paper, derived from wood). The video indeed is structured around a conversation with Renate Schönmayr, director of the University of Salzburg’s law library, which I hope playfully links its look at forest and construction law with larger cultural themes about what it means to conserve, safeguard, and study the past.

Want to learn more about Austrian forests and forest law? Here a link to an English-language section of the Austrian forest ministry. Here is the English translation of the Austrian forest report of 2015. And here is the contemporary, amended forest legislation in German. And here is the video:

Reagan the environmentalist

A little while back Dan Farber at Legal Planet posted "Ronald Reagan – Environmentalist Governor". Some excerpts:

It may surprise you to learn this — it certainly surprised me. But Ronald Reagan has been called “the most environmental governor in California history — protecting wild rivers from dams, preserving a Sierra wilderness by blocking highway builders, creating an air resources board that led to the nation’s first auto smog controls.” This may be an exaggeration, but there were some major environmental achievements.

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[An LA Times story] recounts Reagan’s support for legislation to create the Lake Tahoe interstate compact in order to save the lake.... In addition... Reagan was instrumental in securing legal protection for California’s wild and scenic rivers. 

Perhaps most notably, Reagan signed the California Environmental Quality Act. He also signed the signed the Mulford-Carrell Act, combining the Bureau of Air Sanitation and the Motor Vehicle Pollution Control Board to create the California Air Resources Board (CARB). Reagan appointed the first head of the Board, Arie Jan Haagen-Smit, a Cal Tech chemist who was responsible for linking smog to automobile emissions. By all account, this “stubborn Dutchman” was a dedicated and successful champion of pollution control.

Reagan as President was a much different figure. As we all know, his Administration was no friend to the environment. But even during his Presidency, there were some bright spots, such as his enthusiastic signing of the Montreal Protocol to protect the ozone layer.

In short, Reagan was a more complicated figure than the stereotyped right-winger that both ends of the political spectrum have portrayed. And in his California days, he had a legitimate claim to be considered an environmentalist. 

The Israeli (and Ottoman and Islamic) public trust doctrine

Chapter heading from the Hebrew translation of the Mejelle by Frumkin

Zafrir Rinat, Haaretz's environment reporter, recently wrote about the story of Moshe Puterman's arrest for entering a municipal beach without paying the admission fee, and the court decision which might be thought of as a foundational document of an Israeli public trust doctrine:

One day in 1959, Puterman and a few friends went to the seashore in Herzliya. As was usual at that time, the municipal attendants demanded that they pay in order to enter. But Puterman was fed up with paying, and he snuck in – with the attendants hot on his heels.

“There was a scuffle and I escaped, but they caught me and I was taken into custody,” he recalled recently. “I told the attendants that this was a public area and that they were acting like thieves. It upset me to pay for something that should have come to me by right.”

Puterman was convicted in Tel Aviv Magistrate’s Court for refusing to pay and for resisting the attendants with force. He was ordered to pay a fine. But he did not let the matter rest there.

“My lawyer was the late Avraham Socholovsky, who was also a personal friend,” Puterman told me. “As we left the courtroom, I asked him, ‘Do we keep going?’ ‘Of course,’ he replied.”

Socholovsky appealed, and Tel Aviv District Court Judge Jacob Gavison overturned the earlier conviction. [see excerpts of the decision below-DS]

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The ruling became a precedent that enshrined the public’s right to free access to the seashores. According to attorney Amit Bracha, executive director of Adam Teva V’Din: the Israel Union for Environmental Defense, the verdict led to legislation, in 1964, that prohibits charging an entry fee to beaches where only basic services – lifeguards, toilets, showers – are provided (though a fee can be charged for parking near a beach). It also led to the High Court of Justice decision in a petition filed by the IUED against the Interior Ministry more than 10 years ago. The court then instructed the ministry to order local governments to uphold the law concerning free entry to beaches. Nevertheless, there are a few beaches that still charge an entry fee.

I've translated below some excerpts from Judge Gavison's decision, which, it is worth noting, predates the well-known line of New Jersey beach access cases by a decade (see here, pp. 17-22). (I'd also like to note that Gavison taught law at the Tel Aviv extension of Hebrew University, the predecessor of the institution at which I teach.) Two points of contact with the American public trust doctrine seem interesting:

Resource extraction and property rights in Guyana

Joshua Bryant, Rainbow over a Plantation (Demerara, early 19th century)

Environment and History recently published Janette Bulkan's "'Original Lords of the Soil'? The Erosion of Amerindian Territorial Rights in Guyana". The abstract:

The consequences of State claims to, and controls over, the territories of Guyana's Indigenous Peoples (Amerindians) are traced through successive Dutch and British colonial to post-Independence governments. From the mid-eighteenth century, a numerically small sugar plantocracy wielded influence within local government and ensured that colonial policy served its interests located on the coastland. Hinterland policies extended the capitalist approach to natural resources extraction and favoured the dominance of the small stratum of monied interests over the majority of Crown licences for forestry, mining and ranching, which were superimposed on claimed Indigenous lands. The colonial governments' approach to Amerindians was protectionist, but the Amerindian land rights were not codified in law. Authoritarian post-Independence governments have used the discretionary power in the legislative framework inherited from the colonial times to expand the numbers of, and areas covered by, logging and mining licences. The State is aided by the lack of a participatory reservation process for forests and/or a formal settlement process to determine and codify pre-existing customary rights of Indigenous Peoples, twin processes that were instituted in the majority of British colonies. Indigenous rights and privileges on their customary lands have been steadily eroded in law, policy and practice. Amerindians receive few economic benefits from natural resources operations on either their legally titled communal lands or customary lands.

Law on Nantucket

G. Edward White recently posted "Law on Nantucket", a rumination on the ways people have written about the island and its law. The essay concludes (note in the original):

Underneath Nantucket’s beauty, benign atmosphere, and apparently paradisial prospects lay, as all islanders knew and visiting mainlanders quickly understood, its environmental fragility. [note: Despite what would seem to be the foundational status of environmental law on Nantucket, I have been unable to find any sustained scholarly analysis of the topic.] The consequences of human and natural pressure on the earth, now thought of as mainly occurring over vast stretches of time, seemed telescoped in Nantucket’s natural history. Its native tribes had so few competitors to their hunting, fishing, and environmental activities that Nantucket’s original jack pine and spruce forests were quickly decimated, its codfish supply dramatically reduced, and its wild animal population, never vast, adversely affected by the domestic animals brought by the English, all in a century or two. The island’s constant exposure to the Atlantic ocean, coupled with climate change, resulted in ponds disappearing, bays changing course, and cliffside areas becoming flat beaches in the lifetimes of individual inhabitants. Erosion of the Nantucket shoreline, because the eroding force is the huge, volatile, and seemingly whimsical North Atlantic, has been constant and at times dramatic. The moist soil that spawned cranberry bogs on the island alternately dried up or was flooded over decades, not eons. Ancient places of spiritual significance, or hills with breathtaking prospects, disappeared over time as the topography of the island appeared to constantly change. Today homes and paths on seaside cliffs are in danger of falling into the ocean; there are numerous natural preserves being safeguarded from human invasion; and the areas where aspiring non-resident owners can buy property are shrinking. And in the winter of 2014-15 islanders received a possible vision of the future: a massive blast of winter air and violent ocean conditions that destroyed some beaches on the island’s north shore.

So the interaction of law with the environment is now the best way of rendering what law on Nantucket now is. That is not to say that most lawyers on Nantucket gravitate to environmental work, or even that much of the environmental law and policy affecting residents is actually generated on the island. It is to say something different: that the place which Nantucket is – an island with a unique topography, paleontology, archaeology, and social and economic history – is now a place where law is all about the environment. Nantucket is a case study, writ small, of humans’ ability to coexist with and to profit from, but also to destroy and to be threatened by, the natural world. It is a place that cries out for law, and at the same time a place that illustrates the limits of law. Small wonder that people write about it.

Public ownership of water

Yesterday's "This Day in Water History" had the following historical editorial, including not only the record of enforcement action for exceeding a water allocation but also some historical justification for public control and ownership of water resources:

June 14, 1919: Municpal Journal and Public Works editorial. Public Control of Water. “Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it.

The right of state or federal government to guard the quality of river waters has been recognized and become familiar, and western states have long controlled the amount that could be withdrawn for irrigation; but limiting the amount that cities can use for their public supplies is a novelty. There is every reason, however, why power to limit the amount that can be used should rest in a central authority and be exercised on occasion. No one city has a right to monopolize a water supply because it “saw it first.” The water flowing in the rivers of a country comprises the run-off from every square foot of land in that country; and as the entire area yielded it, the entire area has a right in it. Moreover, to permit one or a few cities to monopolize all the water available in a state would be fatal to the growth in population and industrial development of the state outside of such cities.

The New Jersey plan seems to be a rational one and one that all states must adopt in some form, sooner or later; and the sooner, the less will be the confusion and individual hardship and the greater the benefit resulting therefrom.”

Rockaway River (Capture the Moment)

Scalia's shadow

James May recently posted "Environmental Law Jurisprudence and Associate Justice Antonin Scalia's Legacy". The abstract:

Associate Justice Antonin Scalia left a long and indelible jurisprudential shadow on environmental law. Over his nearly 30 years on the bench, the former professor of administrative law shaped — sometimes single-handedly — a multitude of areas that serve as stock-and-trade of environmental, energy, and natural resources lawyering across the nation. This article focuses on standing, takings, and deference to environmental agency rulemaking.

Digital resources on the commons

"General map which shows the status of the mother river Queiles from the Kingdom of Aragon until it enters the terms of Tudela, the dams, main ditches, Bracers highest grade, which includes the villages with their jurisdictions and roads", drawn March 15, 1792 by Fernando Martínez Corcín. Source: Archivo general de Navarra, Cartografia, signature 146.
(from the ICA page on the Albalá de Tudela)

Rechtsgeschiedenis Blog recently covered digital resources on commons institutions, highlighting the website of Institutions for Collective Action, the Digital Resources on the Commons page of the International Association for the Study of the Commons, and Indiana University's Digital Library of the Commons. There's a tremendous amount of historical material, both primary and secondary, available through these sites.

Like Otto at RB, I'm particularly interested in the water institutions. Institutions for Collective Actions's portal has case studies for 5 Dutch and 3 Spanish waterboards, with a tremendous amount of information on the historic legal institutions governing the management of water in these areas. For instance, here's an excerpt from a description of how the waters of the River Queiles around Tudela, in Navarre (in the north of today's Spain) were governed under a series of ordinances going back to 1220 (a hundred years after the city's Muslim rulers were ejected, but obviously showing the continued influence of their rule):

The ownership of the water of the river Queiles was divided into monthly shifts between the communities that were entitled to irrigation. The first description of this system is to be found in the ordinances of Tudela of 1220. Each month was divided into three periods of different lengths: the almoceda, the alhema. and the entremés. The almoceda began at sunrise on the 22nd of each month and ended on the 26th, lasting four days and nights. The alhema began at sunrise on the 26th and was of variable duration, depending on the location and the time of year: on the right bank, it lasted five days in ten of the twelve months of the year and four days in April and May. From 1376 onwards, on the left bank the alhema lasted for eight days and nights, except in April and May, when its duration was reduced to seven days. The remainder, between the end of the alhema and the start of the almoceda was called entremés.

ELI interviews of environmental law pioneers

The Environmental Law Institute (where years ago I spent a great summer internship as a law student) recently uploaded interviews with 24 people involved in creating the legal framework for modern environmental law in the US, along with short biographies of the interviewees. Scott Fulton, ELI's President, explains:

Nearly 50 years ago, thousands of Americans rallied in the spring of 1970 to celebrate the first Earth Day, an event that marked the beginning of the modern environmental movement. As we approach the 50-year milestone, the Environmental Law Institute has interviewed and recorded the stories of 24 of the men and women who inspired, created, and implemented U.S. framework laws to protect public health and the environment. We asked them why they chose to work on environmental problems and what caused the rise in public concern and support for new environmental laws in the early days. We learned how sweeping new laws like the Clean Air Act and the Clean Water Act came to be created and carried out by able leaders from both political parties, what innovations in those laws made environmental law work well, and where they fell short of expectations.

[Sorry I've been lax in blogging lately. As always, I'm happy for others to pitch in with posts!]