EP Thompson on (forest) law in history

Kurt Newman at US Intellectual History Blog had an interesting post the other day on the place of legal history in the thought of Marxist historian EP Thompson. The post includes a long quote from Thompson's Whigs and Hunters (1975), arguing that law (here, specifically the early eighteenth century English law against commoners' traditional uses of the forests) functioned as more than just a mystifying tool of (upper-)class power. Some selections:

To be sure, I have tried to show, in the evolution of the Black Act, an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status; this oligarchy employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to do. But this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none.

What was often at issue was not property, supported by law, against no-property; It was alternative definitions of property-rights: for the landowner, enclosure; for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters, the right to take turfs. For as long as it remained possible, the ruled––if they could find a purse and a lawyer––would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case.

When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means. Moreover, if we look closely into such an agrarian context, the distinction between law, on the one hand, conceived of as an element of ‘superstructure,’ and the actualities of productive forces and relations on the other hand, becomes more and more untenable.

For law was often a definition of actual agrarian practice, as it had been pursued ‘time out of mind.’ How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law…

...people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig.

Yellow fever control in colonial Senegal

The latest issue of the Journal of Colonialism and Colonial History has an article by Christian Strother, "'A Danger Which More or Less Threatens Us All': Yellow fever and the politics of disease control in Senegal 1890–1914". The abstract:

Prior to 1900, the colony of Senegal had suffered from periodic epidemics of yellow fever. In an attempt to combat the disease, the government of Senegal began to enact new legislation to prevent the spread of epidemics. The government hoped that these new laws would allow them to control yellow fever epidemics without hurting the economic viability of the colony, but they found that the new laws created new challenges. Within the first decade of the passage of the new legislation a series of formal complaints and court cases would challenge sanitation laws and test the limits of government authority.

School of Medicine and Chemistry inaugurated in Dakar in 1918 (ASNOM)

Environmental law and policy in Brazil (1930-1945)

[Today we have a guest post from Frederico Freitas, a Ph.D. Candidate in Latin American History at Stanford, who recently presented a paper at the World Congress of Environmental History on environmental law during the Vargas regime:]

Ranger of the newly created Forest Service, c. 1944
(O Serviço Florestal no Biênio 1943-1944
(Rio de Janeiro: Ministry of Agriculture, 1945))

Brazil during the first Getúlio Vargas regime (1930-1945) produced a boom in conservationist legislation that included a forest code, a new water law, the creation of the country's first national parks, and the establishment of a forest agency and a national institute of forestry. The move by the Vargas regime to implement a conservationist agenda was unprecedented—apart from the establishment of botanical gardens and a few protected semi-urban forests around Rio de Janeiro, previous governments had never acted to establish a conservation program. The change brought by Vargas had its root in a new phenomenon—the appearance on the Brazilian national stage of a cadre of conservationists who were able to align US- and Europe-born ideas of conservation of nature with a nationalist discourse akin to the one put forward by Vargas’s ideologues.

Yet, all the energy invested in environmental legislation failed to change the previous pattern of lack of state commitment to environmental issues. In fact, the new legislation concealed a reality of chronic lack of federal control over both public and private land. Brazil had a long tradition of what historian José Drummond called a “weak hand in controlling the use of associated resources and features, such as soils, ores, water, coasts, flora, and fauna.” After the fall of the Brazilian monarchy and the promulgation of the Republican constitution of 1891, all public land, which had been in control of the Brazilian state in the nineteenth century, was then turned to the hand of state governments. In the Vargas years the Brazilian federal government had almost no public land left to manage besides a handful of federal and military properties and the land alongside railroads. 

In the 1930s the federal government not only did not control most of Brazil’s public land but also had no legal instrument to expropriate private land. It was only in 1941 that the central government issued a decree-law granting itself the powers to expropriate land for public interest. This new legislation allowed the federal government to expropriate both private land and public land owned by state or municipal governments. However, it failed to trigger an era of federal intervention in land issues. The regime of Getúlio Vargas, despite being turned into a fascist-leaning dictatorship after 1937, lacked the power to curb the interest of the local agrarian elites.

The Versailles Conference: upcoming deadlines

The deadline for the American Society for Environmental History 2015 conference in Washington DC (March 2015) has been extended till July 31. The theme, "Turning Protest Into Policy: Environmental Values and Governance in Changing Societies", seems particularly appropriate for legal-themed papers and panels.

The British Legal History Conference 2015 (Reading, July 2015) has a call for papers out; the themes is "Law: Challenges to Authority and the Recognition of Rights". Paper proposals are due September 30.

The European Society for Environmental History's biennial conference will be held in Versailles in June-July 2015. This conference, too, seems particularly welcoming for law-related work, as the call for proposals says, "Through an emphasis on disciplines, methods, and questions, we hope to encourage dialogue with all types of history, other humanities and social sciences, and the natural sciences." Submissions are due by October 1.

Feel free to use the Environment, Law, and History listserve to find potential panelists with similar interests!

Attendees at an earlier conference at Versailles

Evolution and environmental law

Jotwell recently posted "A Legal Beagle's Voyage", Steve Gold's review of Nicholas A. Robinson, "Evolved Norms: A Canon for the Anthropocene", in Rule of Law for Nature (Christina Voigt ed., Cambridge UP, 2013). Robinson, Gold tells us, observes that "the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law."

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.

Gold is somewhat skeptical:

Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.

Wilderness management agencies

Two articles from Environmental Law's latest issue each compare the performance of two US federal agencies tasked with protecting wilderness, examining, among other factors, the legal and institutional history of the agencies.

Robert Glicksman's "Wilderness Management by the Multiple Use Agencies: What Makes the Forest Service and the Bureau of Land Management Different?" explains (461, notes omitted):

a commitment to preservation of wild lands is deeply rooted in the Forest Service’s history. The utilitarian philosophy to which Gifford Pinchot, the first Chief of the Forest Service, was committed “was basically antithetical to the views of John Muir and other wilderness advocates.” Soon after Pinchot’s departure in 1910, however, interest within the agency in preserving national forest lands surfaced, and agency scientists in the ensuing two decades criticized the significant expansion of the national forest road system, calling for permanent protection of wilderness regions of the forests. In 1919, Arthur Carhart, a landscape architect employed by the Forest Service, persuaded the agency’s office in Denver to halt development that threatened the scenic beauty of Trapper Lake in the White River National Forest. During the 1920s, Carhart and another Forest Service employee, Aldo Leopold, began pressing for the creation of national forest wilderness areas. In 1924, the Forest Service established the Gila Primitive Area, “the first formally protected wilderness in the United States, perhaps in the world,” and the establishment of five more such areas followed shortly thereafter.

Regulations in the 1920s and '30s led to the designation of over 9 million acres of wilderness by the forest service before the adoption of the Wilderness Act in 1964. The BLM, on the other hand, followed a different path (462):

Until Congress enacted the BLM’s organic act, FLPMA, in 1976, the agency’s traditional mission involved transferring land to private interests and facilitating resource extraction. As Michael Blumm explained, “Congress considered BLM lands temporary public lands—soon to be sold or granted to private owners. Thus, designating wilderness on BLM lands made little sense until the federal policy of disposition changed.” It was not until FLPMA’s adoption that Congress settled on a policy that “the public lands be retained in Federal ownership” and that those lands “be managed in a manner that will protect the quality of scenic, scientific, historical, ecological, [and] environmental . . . values,” and “that, where appropriate will preserve and protect certain public lands in their natural condition. . . .”

Sandy Zellmer's "Wilderness Management in National Parks and Wildlife Refuges" deals with National Park Service (NPS) and Fish and Wildlife Service (FWS), neither of which have been particularly supportive of wilderness protection (508-9):

More on early modern water law treatises

In response to my desire to hear more about the water law treatises described in Mark Weiner's video, "Water, Paper, Law", Yale Law's Rare Book Librarian Mike Widener (featured in the video) has posted information on the books featured in the video. These include a treatise by the great medieval jurist Bartolus and other works on Italian, German, and Dutch water law.

The page below is taken from a 4-volume Italian treatise on Roman water law, published originally 1670-86. Stay tuned for more on Mike's work on these interesting books.

from Francesco Maria Pecchio, Tractatus de aquaeductu (2nd ed., Ticini Regii, [1700?]-1713)
Rare Book Collection, Lillian Goldman Law Library, Yale Law School

Planning for public lands

Robin Kundis Craig has posted "An Historical Look at Planning for the Federal Public Lands: Adding Marine Spatial Planning Offshore". Though the article's focus is on marine spatial planning (the marine equivalent of land-use planning) in the present, it opens with a historical survey of US law dealing with planning on federal lands: the Classification and Multiple Use Act (1964) and Federal Land Policy and Management Act of 1976 for Bureau of Land Management lands; and the Multiple Use Sustained Yield Act of 1960, the Forest and Rangeland Renewable Resources Planning Act of 1974, and the National Forest Management Act of 1976 for National Forests.

Triggering planned avalanches, Gallatin National Forest, 1970.
(Ross McPherson, Forest Service Photo Collection, National Agricultural Library.
Courtesy Forest History Society)

Borderland smelter pollution

Legal action over transboundary pollution from copper smelters has a long history; think of Georgia v. Tennessee Copper Co. or the Trail Smelter Arbitration. It seems it also has a recent history. Environmental History recently noted a 2013 dissertation by Stephanie Capaldo, "Smoke and Mirrors: Smelter Pollution and the Cultural Construction of Environmental Narratives on the U.S.-Mexico Border, 1970-1988". The abstract:

Working at the nexus of environmental, cultural, and Borderlands history, my research, "Smoke and Mirrors: Smelter Pollution and the Cultural Construction of Environmental Narratives in the U.S.-Mexico Borderlands," follows the evolving late 20th-century debates over transnational smelter pollution in southern Arizona and northern Sonora, Mexico. The region has pivoted around copper mining since the late 19th century and by the mid-1900s, the transnational copper industry, concentrated in Douglas, Arizona, and Cananea and Nacozari, Sonora, coupled with the prevalence of maquiladoras in Agua Prieta, produced a severe air pollution problem. In reaction to environmental damage and public health problems, concerned citizens on both sides of the border organized to legally enforce existing environmental regulations and improve local conditions. The ensuing struggle over local air quality in the small towns of Douglas, Cananea, and Nacozari--coined the "Gray Triangle"--quickly escalated to national environmental and economic conversations, and resulted in international cooperation and legislation.

courtesy Pomona Public Library - The Frasher Foto Postcard Collection

Revisionist English nuisance law history: Part 2

[by Ben Pontin]

As explained in Part One, interpretations of English nuisance law’s contribution to environmental protection during the industrial revolution are changing. That is to say, increasing attention is being given to those instances where victims of industrial nuisance obtained remedies from the courts. Previously, emphasis had been placed on the doctrinal (notably in Joel Brenner’s account) and institutional limitations (in John McLaren’s) of victims of industrial nuisance obtaining a remedy. One of the turning points has been the close study of Adderley’s action against Birmingham Corporation in 1858 (the ‘Great Birmingham Sewage Case’), discussed in my book Nuisance Law and Environmental Protection.

In order to make sense of Adderley’s (and nuisance law’s) achievements – and why they do not fit within the traditional account of nuisance law failure – it is necessary to embrace a level of complexity in the social and economic backdrop of nineteenth century nuisance law that is lacking in the earliest leading studies of this subject. Thus, whereas Victorian Britain in Brenner’s account is characterised as dominated by urban and manufacturing interests in the face of which the courts daren’t say ‘no’ (McLaren is more nuanced), Adderley’s case suggests a power structure far more sympathetic to the plaintiff than hitherto contemplated by historians in this field. A power structure, that is, in which the landed aristocracy spun a persuasive enough (at the time) narrative of noble, honourable and authoritative resistance to the materialist excesses of industrialisation.