faulker080

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law  on "The Tragedy at 50" , which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse. First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin" . The abstract: The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is ine...

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...

The latest Environmental History has an article by Ian Matthew Miller, "Forestry and the Politics of Sustainability in Early China" , with some fascinating discussion of arguments for and against regulation in Chinese philosophy. The abstract: Between the sixth and second centuries BCE, Chinese states developed offices to oversee the sustainable use of forest resources. This era, often cited as a period of rampant environmental degradation, also saw the emergence of a discourse of sustainability. The early philosopher texts criticized the environmental and moral degradation of their era in order to promote specific policy interventions. In response to the deforestation they depicted, moralist and pragmatist philosophers alike argued for regulations on land use as the basis of a sustainable political order. Early states used these ideas to justify state forestry, culminating in extensive forest bureaucracies under the Qin and Han empires in the second and third centuries. Thes...

Environmental history has been debating its relationship with materialism . Now Chris Tomlins calls for legal history to turn toward the material in his recently posted "A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjamin" . The abstract: As the linguistic/cultural turn of the last forty years has begun to ebb, socio-legal and legal-humanist scholarship has seen an accelerating return to materiality. This paper asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and older materialisms – both historical and literary, both Marxist and non-Marxist – that held sway prior to post-structuralism? What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in current legal studies? To attempt answers, the paper turns to two figures from more than half a century ago: Gaston Bachelard – once famous, now mostly forgotten; and Walter ...

Over at the Niskanen Center blog, Mark Weiner recently posted the very interesting  "Climate Change Denial as the Historical Consciousness of Trumpism: Lessons from Carl Schmitt" . Some excerpts: We need to understand Trumpism as a philosophical movement even better than its own adherents do, and with full interpretive sympathy, and we need to be prepared to confront it along all its philosophical axes. The most central of these axes is Trumpism’s approach to history, because the identity of a political movement, like that of a nation, becomes fully apparent only once it possesses a self-conscious understanding of the past. ***** As a framework for interpreting the past, climate change denial grows logically from the core metaphysical commitments of contemporary populist nationalism in its confrontation with trans-Atlantic, cosmopolitan, individualist liberalism. In this respect one might thus regard it as the distinctive form of anti-liberal historical thinking of our era.  ...