Savagery, civilization, and property IV: The aboriginal property rights debate

In the last post in this series we saw how modern commons theory tracked many of the features of stadial theory. In this post I begin trying to uncover the routes by which the early modern theory reached modern thinkers on property.

The modern commons theorists discussed in the last post did not explicitly refer to the Enlightenment or Romantic thinkers whose theories may have influenced them. Yet the striking similarities between these two groups of theories, separated though they were by two centuries, seem to provide evidence of influence. It is likely that thinking in terms of civilizational stages was simply so deeply entrenched in the intellectual baggage of educated Westerners, whether through study of the classics, of Blackstone, or of Gibbon, that modern commons theorists replicated its patterns as a matter of course. Nevertheless, I suggest we can also trace more concrete lines of influence through the intertwined disciplines of anthropology and human ecology, as well as through the worlds of international development and conservationism.

Eleanor Leacock

An important branch of the field of anthropology’s research agenda was largely set in the mid-nineteenth century by stadial theory, and thereafter developed to a significant degree in dialogue with it. Anthropological works that clearly influenced modern commons thought, in particular those cited by Demsetz in his important 1967 article, were very much part of this dialogue, thereby infusing his work and that of others writing in the economic tradition with a large dose of stadial thinking.

The Victorian-era thinkers who strongly influenced anthropology in its founding era — Henry Maine, Lewis Henry Morgan, Karl Marx, and Friedrich Engels — were themselves influenced by the stadial theories of the late eighteenth century, and saw societies as evolving through modes of subsistence or production, viewed largely through the lens of property. But while Maine saw the transition from common to private property as a sign of civilization, Morgan, and, following him, Marx and Engels, saw this transition as a form of injustice and source of inequality (though perhaps a necessary one). 

Morgan, based on his knowledge of American Indians and reading of classical sources, argued that property was a key factor in the evolution of society as it progressed from a state of savagery (based on hunting) to barbarism (based on herding and farming) to one of civilization:

The idea of property was slowly formed in the human mind, remaining nascent and feeble through immense periods of time. Springing into life in savagery, it required all the experience of this period and of the subsequent period of barbarism to develop the germ, and to prepare the human brain for the acceptance of its controlling influence. Its dominance as a passion over all other passions marks the commencement of civilization. It not only led mankind to overcome the obstacles which delayed civilization, but to establish political society on the basis of territory and of property. A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of the mental history of mankind.

As twentieth century anthropology developed the tool of ethnographic fieldwork, the work of many anthropologists, particularly in North America, revolved around supporting or disproving Morgan’s evolutionary account, with one arena of contention concerning the question of whether “primitive” hunting societies had private property or not.

Cronon and commodification

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: proletarianization is, after all, a human process.

Commodification, on the other hand, tends to overwhelm distinctions, starting with the human-nonhuman: while only humans can be proletarianized, everything can be “priced”—placed in a relationship with other things that can be expressed in terms of a number. Even more, while the process of proletarianization seems never to engulf the whole of a person (see my argument in this post), commodification assimilates both individual humans and their internal qualities to a system of commensurable valuations: your cheerfulness as well as your blood pressure, your knowledge of Latin as well as your attention can all be denominated in dollars, no different from a television or a ticket to a concert.

In this way, the story of commodification flattens distinctions between humans and the (rest of the) natural world, demolishing proletarianization’s marked anthropocentrism. Putting a price on human lives or health or knowledge or creativity and putting a price on a chair or a car is one single continuous process; as much as labor could be abstracted as just one more input or one more production cost, the story of making humans into proletarians was always distinct from—if parallel to—the story of extracting value from the natural world.

There are various ways to account for this shift in historical narration away from proletarianization’s anthropocentrism. Certainly, the influence of environmentalism has something to do with it. While very much leftist critique descending from Marx is (still) only fitfully cognizant of ecological critiques of capitalism, some of the ontological premises of an ecological worldview have seeped into culture so generally that an older stark separation of the human and the nonhuman is no longer tenable.

Another possible explanation comes from the small explosion since the 1990s of works in the subfield of what Lorraine Daston has dubbed “historical epistemology,” which as Sklansky defines it is the study of “the invention of new kinds of fact such as employment figures and credit ratings along with the modern metrics and matrices that produced them” (Sklansky, “Elusive Sovereign,” 242). Offspring of the history of science, studies in this vein emphasize the ways that quantification and abstraction have profoundly reshaped the image of “the human,” creating what Dan Bouk has called the “statistical individual.” Incarnated in numbers, this creature can float freely as part of a universe of endlessly adaptable equations: where the human worker needs to occupy a certain place in the production process, the statistical individual can be plugged in far more flexibly at many points in a firm’s calculations and predictions.

*****

The other week on Twitter, Eli Cook pointed out one possible source of inspiration for a generation of historians, one reason why folks who entered graduate school from at least the mid-90s through the present might have had commodities on their minds. That source is a single chapter in a single monograph: the grain chapter of William Cronon’s Nature’s Metropolis (1991), Chapter 3. 

Materialism and legal historiography

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 Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The paper argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.

Might legal history be ready for an environmental turn?

Jan Brueghel the Elder & Hendrick de Clerck, Abundance And The Four Elements (c. 1606)

Inter-imperial riparian law I - Introduction: Inter-imperial law in an inter-imperial court

It seems I forgot to mention my own article when I posted it a while back. "Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences" was published as chapter 4 of Imperial Co-operation and Transfer, 1870-1930: Empires and Encounters (Roland Cvetkovski & Volker Barth eds., Bloomsbury, 2015). I'll do a few posts based on the article now; for the full version, please see the book.

One of the most dynamic areas of law in the nineteenth-century Anglo-American world was that of water rights, or, as it was typically denoted then, “riparian rights”. This body of law dealt with the relative rights of owners of land adjacent to water—riparian land—to use the flowing waters, whether for power, irrigation, transportation, fishing, or waste disposal. The historical development of the law in this field in the nineteenth century has been analysed from several points of view, including economic property theory and Marxian legal history.  Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic—that is, Anglo-American—framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development.  Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.

The court case of Miner v. Gilmour can be seen as the epicentre of this inter-imperial encounter. The case began as a conflict in the 1850s between two prominent citizens of the Eastern Townships village of Granby, in the part of Canada then known as Canada East (in the half century preceding 1841 called Lower Canada, the southern part of today’s Quebec). Harlow Miner’s tannery on the south bank of the Yamaska River, the town’s major industrial enterprise, was powered by water directed from a dam in the river, but Francis Gilmour, the town’s store-keeper, had been opening a sluice on the north side of the dam in order to allow the water to flow through and power his gristmill downstream. In order to put a stop to Gilmour’s interference with his business, Miner brought a lawsuit in the Superior Court of the District of Montreal.  When the court ruled in Miner’s favour, ordering Gilmour to cease and desist diverting water away from Miner’s mill, Gilmour brought an appeal to the Court of Queen’s Bench of Canada. Here the decision went in his favour, and the court dismissed the plaintiff’s suit. Unsatisfied with this result, it was Miner who appealed this time, making use of the only remaining judicial recourse available to him, an appeal to the Judicial Committee of the Privy Council in London.

The Privy Council, an organ of the British monarchy, was for years the executive body through which British overseas possessions were governed, also hearing appeals from the courts of these colonies. In 1833, in an effort to give these appeals a more judicial character, Parliament created the Judicial Committee of the Privy Council, composed primarily of judges from other British high courts. Though formally not a court of law—the members of the committee did not wear judicial garb, they sat around a table with the parties’ counsel and their decisions were, strictly speaking, merely recommendations to the monarch, who would then issue an order giving force to the recommendation—in practice it functioned like a court, and was treated as such by all. This new judicial body was tasked with hearing appeals from overseas possessions (as well as from the British court of Admiralty and ecclesiastical courts).

The Judicial Committee, hearing cases from far-flung possessions around the globe, was an imperial institution par excellence. The nature of litigation in the common law, adversarial, system—in which the parties, not the state, generally determined if and when court proceedings would be conducted, and on what legal grounds—meant that the court’s agenda was largely shaped by the decisions of litigants in the courts below. Nonetheless the Judicial Committee’s worldwide jurisdiction, along with its judges’ parallel tenures on other British high courts, gave it a potentially harmonizing and homogenizing role; ‘The assumption was that there could be cohesion and certainty in the legal system of the Empire only if appeals could be referred up to a judicial body in London.’ (Cornish, Lobban, Smith, "Empire’s Law", p. 245)

At the same time the Judicial Committee was in effect an inter-imperial institution.

Red and Green

Over at Religious Left Law, Patrick O'Donnell recently posted a reading list on Red-Green (or ‘Eco-’) Socialism. He adds there:

I think it’s also interesting to examine “conflicts on the ground” as it were between the Left and Green movement parties to the extent the latter finds little or nothing of value in the Marxist tradition (e.g., the early conflicts between the ‘Realos’ and ‘Fundis’ in West Germany and the ‘deep ecologists’ and largely Bookchin-led and inspired ‘social ecologists’ in the US).

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.

Teaching the history of law and the environment

I’d like to thank David Schorr for inviting me to post my thoughts on teaching law and environmental history, and for his work in developing this blog, which I have found to be a vital resource for keeping up-to-date on this rapidly developing field.

“Legal Issues in Environmental History” was a course description developed by the New Jersey Institute of Technology’s innovative undergraduate program in Law, Technology, and Culture, headed by legal historian Alison Lefkovitz. The goal is to teach students how humans have regulated and managed the natural environment in North America from the colonial period to the present. 

By looking at the evolution of environmental rules from customary use rights to modern state-based regulation, students learn how ideas about nature, law, and the market have changed over time. Hopefully, they leave the class with a better sense of the possibilities and pitfalls that surrounded the federalization and, increasingly, the globalization of environmental law.

I’ll start this discussion by suggesting what the course doesn’t do. As you can see in the syllabus, the course tries to avoid a teleological history of federal environmental law that follows a path from the shortcomings of local governance to the virtues of a national system. Instead, it assumes that people in each period of American history we study had particular rules about environmental management and analyzes how these practices were grounded in the social, cultural, political, and economic conditions of their time and place.

As a result, the course steers away from instrumentalist explanations for changing practices of governance. I use historical examples to introduce important theories about legal and environmental change (Marxism, the “Release of Energy,” or the ever-popular “Tragedy of the Commons”), but leave it to the class to decide whether the facts support these approaches.

Frank Leslie's Illustrated Newspaper, Aug. 13, 1859
(from Ted Steinberg, Down To Earth (2002), 161)

Finally, using Dirk Hartog’s classic article "Pigs and Positivism" (1985) as our theoretical starting place, I try to shift the conversation away from sharp lines between “law” and “custom” and toward questions about nature and power. As a result, the course integrates topics, such as labor history or the role of gender and race in shaping law, that ordinarily get left out of environmental history courses focused on land use, pollution, and resource extraction. It also leaves space to discuss non-elite views of law and nature.

In an upcoming post, I’ll write about some of the topics discussed in the class and the theoretical and practical problems of teaching them.

[Links to all of Adam's posts are here]