faulker080

A recent issue of Federal History  has an article by Nancy Germano, "Negotiating for the Environment: LBJ's Contributions to the Environmental Movement" . From the article: Environmental historian Martin V. Melosi refers to the Johnson administration as "a transitional force in the evolution from old-style conservation to modern environmentalism." This article presents evidence in support of Melosi's statement by showing that the Johnson presidency, typically associated with civil rights, the War on Poverty, and the Vietnam conflict, also created an environmental legacy. In addition to a record number of federal laws directed at protection of natural resources, Johnson's rhetoric and actions set the stage for American environmentalism. He, along with Lady Bird Johnson, initiated new conversations and approaches for natural resource protection and shaped environmental advocacy for the nation. In the process, Johnson generated an enduring conviction that e...

In the last couple of posts in this series I suggested several directions of inquiry for uncovering the history of environmental law. In this final post in the series, I would like to tentatively offer some thoughts on why the historical exploration of environmental law matters. First of all, history can help us better understand current environmental law. For instance, David Driesen has recently advanced a positive theory of environmental law , attempting to explain its salient features, such as reliance on certain types of standards. Notably missing from his account are historical explanations for these aspects of environmental law, explanations which might be provided by works such as those of Morag-Levine .  Or take the argument of 'free market environmentalists' that private law would do a better job of protecting the environment than modern regulation; this type of argument could be checked against the historical experience of legal systems that have relied on private law...

Eric Biber recently posted a series at Legal Planet based on his recent  Georgetown Law Journal  article, "Law in the Anthropocene Epoch"  (abstract below). The Anthropocene, for those who have somehow missed this buzzword , is (according to its proponents--it has yet to be officially adopted) a new epoch, in which the signs of human changes to the planet are visible in the geologic record. The article and blog posts contain a useful catalog of ways in which current legal doctrines and institutions do a poor job of dealing with environmental challenges, and essentially argue for the desirability of major changes in liberal conceptions of individual rights and private property. That sounds right, but I'd like to quibble over three historical elements of the argument. First, Biber's confidence in the direction of future political and legal change ("Humans will inevitably respond to the Anthropocene", "These responses will ineluctably lead to greater gove...

In developments close to home, the latest issue of the New York Review of Books  has a review by Raja Shehadeh of Gary Fields's Enclosure: Palestinian Landscapes in a Historical Mirror  (U. California Press, 2017). Some excerpts: Starting in the mid-nineteenth century, a series of legal developments in the Ottoman Empire—which ruled Palestine until 1917—had enabled the growth of... large land holdings. They included the promulgation of the Ottoman Land Code of 1858, which attempted to eliminate the musha system, whereby land was held in common, and required that the cultivator-turned-owner register his land with Treasury officials. ***** The legal processes the Ottomans had begun were continued in the years after the end of their rule—first by the British military occupation of Palestine from 1917 to 1922, and then when the League of Nations granted the British a mandate over Palestine from 1922 to 1948. During both periods, the British continued to revise the land laws with a vie...

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 ...

"Fungus coccineus Melitensis Typhoides" , from Paolo Boccone, Icones & Descriptiones rariarum plantarum Siciliae, Melitae, Galliae, & Italiae (1674) A recent trip to Malta took me to the Dwejra on the beautiful island of Gozo, off the coast of which lies the small islet of Fungus Rock. The island is named after the rare "Malta Fungus" (actually a flowering plant) that grows on the top of this rock and was once thought to possess medicinal properties. The Knights Hospitallers exhibit at the former Sacra Infermeria in Valletta explains that the Knights (also known as the Knights of St. John), who ruled Malta from 1530 to 1798, so prized the plant that they often gave gifts of it to kings, noblemen, and distinguished visitors. Collection was only allowed 15 days after the feast of St. John in May, this allowed the plant to flower and propagate. The increasing demand on this restricted plant led to concern on its possible extinction. Grand Master Pinto decreed t...

At the end of  the previous post in this series  I argued that the history of environmental law remains in need of extensive work both in uncovering the legal roots of contemporary environmental law and in making the lateral connections between historical environmental law and other historical topics. I would like to suggest that of these two dimensions—we might think of them as longitudinal and lateral—the first order of business should be longitudinal, deepening the temporal dimension of environmental law. We will be hard pressed to assess the significance of historical environmental law or its interactions with other areas of law and life without knowing what it was or what people thought about it. However, given that 'environmental law' is a recently coined term, where are we to look for historical environmental law? I will offer several directions of inquiry, some of them already explored by environmental and other historians, though often without the sensitivity to...

‘A plotte of the landes about Ashebourne’, Derbyshire. 1556–1557 (Folger Shakespeare Library) One difficulty of English water-law history is the dearth of reported water cases predating the nineteenth century. Fortunately young historians are doing good work in digging up archival documentation of water litigation. We heard a few years ago from Leona Skelton about her interesting work on the Tyne River Court, and now I'd like to note Lehua Yim's work on a sixteenth century water law dispute litigated in the Court of Star Chamber:  "A Watercourse ‘in Variance’: Re-situating a Sixteenth-Century Legal Map from Ashbourne, Derbyshire" , published last year in Imago Mundi. The abstract: Law-related English local maps, especially those dating from the early- to mid-sixteenth century, remain in need of both extensive and close study. In this article, a hand-drawn sketch map in the Folger Shakespeare Library, Washington, DC, is re-contextualized in relation to documents connec...

In the previous post in this series  I discussed the seeming lack of interest of legal historians in environmental angles. Nonetheless, recent years have seen deepening interest in the history of environmental law, with a few scholars highlighting the connections between the supposedly foundational environmental legislation of the 1970s and earlier law. One prominent work in this genre of pushing back environmental law's start date is Karl Boyd Brooks's Before Earth Day . Brooks's book is notable not only for identifying the statutory precursors of modern environmental regulation, but for its attempt to trace the manifold legal, personal, and institutional connections between legislation and litigation, and between pollution control law and the law of nature protection, two areas of modern environmental law that might be assumed to have distinct, even antagonistic, origins. Another front opened recently regards the relationship between modern environmental law as it coale...

The latest issue of Grotiana  (noted by Legal History Blog) has an article by Sylvie Loriaux, "Grotius and Kant on Original Community of Goods and Property" . The abstract: Immanuel Kant This paper is interested in the critical potential of the idea of original common possession of the Earth. On the basis of a comparative analysis of Hugo Grotius and Immanuel Kant, it shows how different the meaning of this idea can be within a theory of property or territory. The first part is devoted to Grotius’s account of why and how the institution of property was progressively introduced. It highlights the importance this account attaches to the intention of the first distributors for a good understanding of property laws, and in particular, for an understanding of their non-application in situations of extreme necessity. The second part takes the opposite path and shows that although Kant rejects the very existence of a right of necessity, the idea that one might be liberated from a la...

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...

I recently came across Tapio Katko's Finnish Water Services: Experiences in Global Perspectives (Finnish Assn. of Water Utilities, 2016). It's been reviewed in several journals; here are some excerpts from Glen O'Hara's review in Scandanavian Economic History Review  (references to page numbers omitted): Particularly impressive sections include those on the post-Second World War growth of transnational water governance systems through the auspices of the United Nations, including the International Hydrological Decade of 1965–1974, the subsequent International Hydrological Programme and the regional Baltic agreements that followed the UN Conference on the Human Environment in Stockholm and then, in a further burst of maritime co-operation, after the end of the Cold War in the early 1990s. Perhaps because of Finland’s small population, and her traditional Nordic role within the international aid and development network, the international situation plays a key role in thi...