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In the last post in this series , we looked at the way early modern "stadial theory" connected between stages of civilization and property regimes. Now let us examine some of the classics of modern commons theory, noting the fondness of theorists for stories reminiscent of various aspects of stadial theory. I wish to highlight here not simply that commons theorists of many stripes tend to connect pressure on resources to property regimes, as unanimity on this point could plausibly be explained by observations of a pervasive phenomenon. It is rather the connection of these two parameters — pressure and property — with the early modern idea of civilizational stages characterized by hunting, pastoralism, agriculture, and sometimes commerce, that I find striking. Whether seeing these stages in terms of the march of Progress or a fall from Edenic bliss, nearly all commons theorists seem to be attracted to the basic narrative of stadial theory. Garret Hardinʼs “Tragedy of the Commo...

Venetian aqueduct in Crete The latest issue of Water History  has an article by Yannis Spyropoulos, "Running water for the officials, rainwater for the poor: symbolic use and control of water in early modern Ottoman Crete" . The abstract: This paper deals with the issue of water management on the island of Crete from the beginning of the Ottoman–Venetian war in 1645 to the beginning of its Egyptian administration in 1830. Based primarily on information given by Kandiye’s (mod. Herakleion) Shariah court records, but also on a variety of published and unpublished archival material from Turkey, Greece, and France, it explores the socioeconomic aspects of water-resource exploitation in the island’s urban centers, analyzes the involvement of various local and imperial actors in water management, and locates the struggles created in the above-mentioned processes. Through a detailed analysis of the challenges faced by the administration and the population of an insular area with lim...

(Part II of the series, Part I is here .) The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents),  of what would come to be known as “stadial theory” or “four-stages theory.” This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New World societies that reminded Europeans of societies described in classical Greco-Roman and biblical sources, and raised the issue of what separated “savage” or “barbaric” peoples from “civilized” ones. Stadial thinking offered a theory of progress: In its most specific form, the theory was that society ‛naturally’ or ‛normally’ progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce. To each of these modes of subsistence, it came to be argued, there c...

Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981: Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then. Even though the statutes are the same, there have been a massive n...

To cap the series I've been doing on "The Tragedy of the Commons at 50"  (the last post is here ), I'm going to post my own contribution to the issue ( SSRN , Academia ), in installments. I'd be really happy to get feedback. This series makes a simple claim: that the commons theory of the last half century, in its various forms and schools, has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” passed down to the twentieth century through the disciplines of anthropology and human ecology, and strongly entrenched in the patterns of thought of property theorists to this day. I do not wish to argue that recent thinkers deliberately or consciously based their theories on early modern precedents, nor do I claim that their theories simply recast old theories, pouring old wine into new bottles. What I wish to ar...

California's Camp Fire, November 2018 Peter Reich recently posted "What Happened to Hispanic Natural Resources Law in California?" . The abstract: Before the US annexation of California in 1848, the region’s Spanish and Mexican governments supervised a geographically-adapted legal system emphasizing communal water rights and public allocation of minerals, land, and coastal areas. While many post-takeover judges considered Hispanic legal principles, the overall trend was to reject these in favor of common law. The prior anti-developmental tradition was in most cases distorted, overridden, or procedurally blocked, and the jurisprudence replacing it facilitated resource degradation that has been only partially reversed by California’s modern environmental policy. As one example, the stark contrast between fire zone rules in Mexico’s Baja California and in US Southern California, and the resulting far more destructive conflagrations in the latter, demonstrate the advantages o...

Next to last in our series on "The Tragedy of the Commons at 50"  (the previous post, on Carol Rose's article, is here ) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography" . The abstract: This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of rese...

I'm reposting (with permission) an email I recently got from Jim Salzman (the picture is my own addition): We are writing to invite you to participate in a survey we trust you will find interesting and fun. In 1999 and 2009, JB Ruhl (Vanderbilt Law School) and I surveyed environmental law practitioners and academics about which Supreme Court cases they thought were the most important to our field. The 1999 results were published in ABA’s Natural Resources & Environment, and the 2009 results were published in ELI’s The Environmental Forum. A decade later, we have prepared the 2019 survey and are eager to see how the data have changed. We intend to publish the results this Winter. Please click here for the link to the survey. We are posting this information on multiple environmental law list serves and apologize for cross-listings. Please take the survey only once. We hope you will take the two minutes needed to complete the survey to help give us as much data as possible.  Than...

The current issue of Water History  has an article by Anna Mazanik, "Industrial waste, river pollution and water politics in Central Russia, 1880–1917" . First, an extract (footnotes and references omitted): Imperial Russia did not have a unified legislation on water pollution comparable, for example, to the Rivers Pollution Prevention Act of 1876 in Britain. This did not mean that the tsarist government made no attempt to protect water resources and that the questions of industrial discharge and water pollution were not legally regulated. Rather, their regulation was dispersed across several legal statutes and decrees, often in unclear, repetitive or somewhat contradictory formulations, which meant that even contemporary bureaucrats and experts found it difficult to apply. Czar Alexander II The basic principles of water protection were stipulated in the state legislation such as the Medical and Building Statutes and the Statute of Industry. The Medical Statute forbade “conta...

Next up in the series of posts on "The Tragedy of the Commons at 50"  (the last post is here ) is the article of my co-editor for the volume, Carol Rose, "Commons and Cognition" . The abstract: Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. While Hardin viewed the herder’s attitude as identical to that of actors in many other collective action situations, the work of other commons theorists suggests several different cognitive stances among such actors, largely depending on the scale of the commons issues they face. Thus participants in t...

Richard Frank recently posted at Legal Planet on the 50th anniversary of the enactment of the US Wild and Scenic Rivers Act. Some excerpts: 1968 was an especially tumultuous year in modern American history.  The nation endured the assassinations of both Martin Luther King, Jr. and Robert F. Kennedy; then-President Lyndon Johnson announced he would not seek reelection due to growing public dissatisfaction with the government’s conduct of the Vietnam War; and protests and riots consumed Chicago, Detroit, Washington, D.C. and many other American cities. So it was in stark contrast and a most welcome development when in 1968 Congress passed, and (in October of that year) a lame duck President Johnson signed into law the Wild and Scenic Rivers Act ....  The Act represented a major political and conservation achievement 50 years ago.  It remains an important cornerstone of America’s conservation efforts a half century later. ***** Under the WSRA, rivers are classified as wild,...

Next in our series on "The Tragedy of the Commons at 50"  (the last post is here ) is Michel Morin's "Indigenous Peoples, Political Economists and the Tragedy of the Commons" . The abstract: In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal  and anthropological literature. His main lifelong focus was on limiting population growth. He could have avoided the conceptual confusion he created by turning to well-known political economists such as John Locke and Adam Smith or, for that matter, jurists, such as Blackstone. Instead, he simply envisioned indigenous lands as an unbou...

Construction crane at Norris Dam (TVA) ( Currents of Change ) Yesterday's New York Times  had a piece by Naomi Oreskes and Erik Conway on the need for government help in making the technological transformations necessary to avert disastrous climate change - in particular, phasing out fossil fuels by the year 2050. They write: None of the major technological transformations of the 19th and 20th centuries were the product of the private sector acting alone and responding only to the market. Railroads, radio, telegraph, telephone, electricity and the internet were all the result of public-private partnerships. None was delivered by the “invisible hand” of the marketplace. All involved significant interventions by the visible hand of government. What does this mean for us? Right now, government is widely seen as inefficient and ineffective, and our needs are thought to be best addressed by the private sector, through entrepreneurship, venture capital and Silicon Valley-style “disrupt...

Continuing the series on "The Tragedy of the Commons at 50" (the last post is here ), Fabien Locher's "Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)"  provides interesting historical context for the work of Ostrom and the huge body of commons studies she inspired. The abstract: The goal of this article is to write a social and political history of the now preeminent approach to the ‘commons’ institutions, by focusing on Elinor Ostrom’s contributions to its development. My methodology is that of Science and Technology Studies (STS). I focus here on the materiality of E. Ostrom and her team’s research practices (fieldwork, data collecting, indexing and analysis), on their intellectual and institutional strategies, their networking practices, how their research was funded, and their interactions with administrative and academic institutions and actors (USAID, NSF, National Academy of Sciences). ...

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential  Nature's Metropolis  (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts: [Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries. This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica . The most important distinction, perhaps, was between the human and the nonhuman: pr...

The English Commissions of Sewers remain a fertile source of scholarship (for earlier posts see, e.g., here and here .) Last year Environment and History  published John Emrys Morgan's "The Micro-Politics of Water Management in Early Modern England: Regulation and Representation in Commissions of Sewers" . The abstract: Early modern water management was as much a social and political endeavour as an environmental one. This paper explores this assertion by analysing the different forms of knowledge used by English Commissions of Sewers in the governance of flood defence and drainage in the sixteenth and seventeenth centuries. Using examples drawn primarily from Gloucestershire and Lincolnshire, in south-west and eastern England respectively, this paper traces the rise and decline of popular influence over water management. Where Commissions of Sewers operated harmoniously, they were staffed by significant numbers of local people, who valued their right to participate in wa...

Next in the series of posts (the last one is here ) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'" . The abstract: Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take acc...

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here ). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland" . The abstract: This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs;...

Next in the series of posts on "The Tragedy at 50" (the last one is here ), we have Monica Eppinger's "Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space" . The abstract: Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedie...

I'm pleased to announce that The Oxford Handbook of Legal History , edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here . The book is available both in print and online . I'd be happy for any comments on my paper!