Environment, Law, and History

(Continuing the series on water rights:)

The empirical work of Ostrom (1990; Ostrom and Gardner, 1993) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions (Ostrom et al., 2010):

Elinor Ostrom

Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other three systems, however, have mixed records in terms of sustaining water resources, including both great successes and massive failures. Thus, the ability of a type of ownership to enhance sustainable resource management depends on a number of other factors…

Many legal and environmental historians have focused on historical transitions between property regimes in water, particularly two major developments in the Anglo-American legal world: the development of the "reasonable use" riparian regime in the early to mid-nineteenth century, and the rejection of riparian rights in favor of the system known as "prior appropriation" in the western United States in the second half of the same century.

Some historians' accounts, beginning with Walter Prescott Webb's "Great Plains Thesis" (Webb, 1931), have supported the economic view associating with aridity with private rights in water (Robert G. Dunbar (1985) 'The Adaptability of Water Law to the Aridity of the West', Journal of the West 24: 57; Percy, 2005). Yet aridity has also been associated with strict state control, as in Karl Wittfogel's (1957) hypothesis associating "hydraulic civilizations" with "oriental despotism", applied to the western American context by Donald Worster (1985).

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

Today we have a guest post from Dan Allosso, a PhD candidate in history who runs the new www.environmentalhistory.us website, which has video lectures, a blog, and reviews of important books in environmental history. Dan recently reviewed one of the most important books of legal history, Morton Horwitz's The Transformation of American Law, 1780-1860 (Harvard UP, 1977), as well as Ted Steinberg's Nature Incorporated: Industrialization and the Waters of New England (U Mass Press, 1994). He put together a condensed version for our blog:

Harvard Law professor Morton Horwitz’s The Transformation of American Law, 1780-1860 is not an Environmental History text, per se. Nor is it a well-known volume outside legal history circles, in spite of winning the Bancroft Prize in 1978. It’s not an easy read, but it tells an important story, which was amplified by Horwitz’s student Ted Steinberg in the EH classic, Nature Incorporated.

Horwitz argues a fairly radical case, which unfortunately is not widely understood because of the book’s subject matter and style. Horwitz focuses on common law. Constitutional law, he says, “represents episodic legal intervention buttressed by a rhetorical tradition that is often an unreliable guide to the slower (and often more unconscious) processes of legal change in America” (xii). Constitutional law also focuses on judicial review, rather than what Horwitz characterizes as a very active, constructive, legislative role taken on by nineteenth century jurists. “By 1820,” he says, “the process of common law decision making had taken on many of the qualities of legislation. As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame general doctrines based on a self-conscious consideration of social and economic policies” (2). The ancient tradition of “an eternal set of principles expressed in custom and derived from natural law” gave way to an understanding of law as “an instrument of policy” that could be used “for governing society and promoting socially desirable conduct” (30). Once this change had been accomplished, the game became defining the terms “socially desirable.”