Response to Richard Lazarus & Eric Freyfogle
By Peter Brooks
For a long time now, the poetic imagination has not been able to get a grip on the core of things. As poet Stephen Spender put it: “Ever since the Industrial Revolution it has been impossible for the individual to envisage the organisational centre of productivity as being the extension of the inner world of values that are at once personal and generally human.” Spender's remark came in his book, The Year of the Young Rebels, a sympathetic and bemused account of the student and other uprisings of the 1960s. These uprisings were in part--at least for certain of their partisans--linked to a visionary, often hopelessly romantic desire to renew ties to the land as to the body. A dream of community animated many of the young rebels--a dream that ended, as so many American utopian experiments have over the centuries--with largely isolated communes and ashrams, not to mention the compound of the Branch Davidians.
The story that Spender alludes to is traced in more detail by Eric Freyfogle. It is a story of the loss of the commons not only to the dark satanic mills but also to the accompanying enclosure and privatization of land according to a model of property that a number of nineteenth-century visionaries, from Proudhon to Marx, resisted.
Proudhon's vision in What Is Property? has always seemed to me a very attractive one. His model was the Greek amphitheater. At the amphitheater, those people already seated accommodated a newcomer by simply moving over along the stone benches and squeezing more closely together to include a new member of the human community. Property, as Proudhon notoriously declared, is theft. I have often wondered why he was never quite taken seriously on this claim. He had the misfortune of being ridiculed by Marx and by property owners and of having his ideas represented in parodic form during the Revolution of 1848 in France. In any event, he arrived too late because the private property die was cast by the time the Industrial Revolution had done its transformative work on the landscape, on the relations of labor and capital, and on the poetic imagination evoked by Spender. As Freyfogle forcefully, and I think entirely accurately, argues, the poetic visions of the landscape henceforth will not be central enough to the evolution of society, government, and law to be useful to lawyers.
In English literature, the pastoral imagination since the late eighteenth century has been more of a polemical trope than a real option. It has been the means of evocation of a “green world” set in opposition to city and civil society in general. It is a world of escape into which one plunges (as in Shakespeare's comedies and romances) for self-renewal. The great American literalized pastoral found in Thoreau is not all that different. He is a hermit in the woods, like one of those early Church fathers in the desert, and eventually he leaves Walden because, as he tells us, he has other lives to lead.
The American writer who most persists in the claim that the natural must inform the social and the moral worlds is Emerson. Emerson famously declares that words are signs of natural facts, and natural facts are signs of spiritual facts, and therefore nature is the symbol of spirit. If you can believe him, then everything is connected in a chain of being that makes nature, spiritualized, the very foundation of law, and thus of legislation, litigation, and the environmental cause. “Nature as a collection of commodities”--as Freyfogle describes the dominant American view--is of course the very opposite of the Emersonian vision (or that of his avatar, John Muir). Although some of the myriad American utopian communities were Emersonian in conception, they have not led, any more than Emerson himself did, to changes in the history of American land use. More often, they end up parodied, as in Hawthorne's Blithedale Romance, or as in snail darters, hapless toads and other ridiculed endangered species.
Is this to say, as Richard Lazarus suggests, that “human nature,” the “laws of nature,” and “the nature of the nation's lawmaking institutions” operate on different timetables and imperatives? Lazarus observes that in the case of environmental law, formal legal rules are devised to coerce people in the here and now to temper potentially disastrous consequences to the future. Such a fiduciary relationship to nature and the land goes against all the tendencies of our present administration. It also dissents from most of American history, based not only on a sense of manifest destiny in relation to the possession of land, but also on an implicit belief that there would always be enough of it. You could pull up stakes and move on, and in the process leave your trash behind you. The laws in some European countries that force you to tear down and clean up an abandoned strip mall, for instance, still seem unthinkable here. The right to make a mess is still very much part of American freedoms, despite what Justice Blackmun's clerk called “those horrible EPA cases.”
I am struck that the century that produced the U. S. Constitution saw, through the discoveries of the great circumnavigators and other travelers, some version of a fully developed ecological imagination. Rousseau's meditations on how primitive societies were destroyed by the coming of private property--which not incidentally entailed the coming of law, to protect the property one had usurped--do not of course come out of nowhere. Rather, they are prepared by the discovery of so-called primitive peoples who seemed to live in much greater harmony with the land and nature than did Europeans. The most telling discoveries are those of the French, which follow Rousseau's great Discourse on the Origins of Inequality. In fact, his treatise becomes something of a lens through which Louis-Antoine de Bougainville and his companions register and recount their discovery of Tahiti, which they see as the true seat of the earthly paradise. It is a non-theological paradise, as Bougainville and his resident naturalist Philibert de Commerson make clear, and as Diderot then polemically argues in his Supplement to Bougainville's Voyage, which stages a dialogue between a French chaplain and a Tahitian elder. The French, who discovered Tahiti in 1768, got many things wrong, of course. They thought the Tahitians lived in a sort of primitive communism, sharing all the bountiful produce of their island, sharing too the distribution of women without the distorting conventions of European marriage, and its accompanying adulteries and other unhappiness. The Tahitians appeared to be free of the surplus repression that European institutions (state and Church) had over the centuries seen as needful in the repression of their subjects. Tahitians worked only as much as needed to fulfill their wants. They had industry only for the making of subsistence items, such as fish hooks. They seemed to take as their motto some anticipated echo of the Sixties slogan: make love, not war. Above all, they lived in harmony with their island ecology.
The French did not see some of the more oppressive aspects of Maori society. Their report on their discovery was itself the death knell for the island. By the end of the eighteenth century, Tahiti was overrun with Catholic, Protestant, and even Mormon missionaries. It had also lost its complex tribal structure since the Europeans needed to recognize one chief as “king” in order to do business in the way they understood. Nonetheless, the thinking about Tahiti and other societies--including less fortunate ones, such as Patagonia-- represented a remarkable act of empathy and attempted understanding of cultures that conceived their relation to nature differently. Enlightenment, ethnography and anthropology contain a measure of truly ecological understanding.
I am not going to claim that this kind of ecological understanding found its way into the U.S. Constitution--Americans were too busy taming nature, including native populations. But it evokes a vision that is not incompatible with the Constitution, and that finds various American expressions, including James Fenimore Cooper, as the nation follows its largely heedless course of development. In the penumbra of the Constitution--by which I mean the thinking of those who inspired the American Revolution and its aftermath--one can discern a good deal of writing sympathetic to the ecological vision. Could it be drawn on by the environmental movement in the future? For instance, Lazarus's paper ends with the issue of water, which, along with energy, is surely the overwhelming challenge to the near and farther future. As we think about the legal complexities of water, we might keep in mind the vision of American waters in the early accounts by European explorers and travelers. For example, there is Chateaubriand's wildly lyrical account of the Mississippi River--on whose banks bears drunk from eating too many grapes cavort in peace. We might also consider Father Hennepin's account (the first by a European, I believe) of Niagara Falls: “Betwixt the Lake Ontario and Erie, there is a vast and prodigious cadence of water which falls down after a surprizing and astonishing manner, insomuch that the universe does not afford its parallel. ‘Tis true, Italy and Suedeland boast of some such things; but we may well say they are but sorry patterns, when compared to this of which we now speak.” In this manner, maybe water could become a vision and an inspiration, as well as a need and a right.
The story that Spender alludes to is traced in more detail by Eric Freyfogle. It is a story of the loss of the commons not only to the dark satanic mills but also to the accompanying enclosure and privatization of land according to a model of property that a number of nineteenth-century visionaries, from Proudhon to Marx, resisted.
Proudhon's vision in What Is Property? has always seemed to me a very attractive one. His model was the Greek amphitheater. At the amphitheater, those people already seated accommodated a newcomer by simply moving over along the stone benches and squeezing more closely together to include a new member of the human community. Property, as Proudhon notoriously declared, is theft. I have often wondered why he was never quite taken seriously on this claim. He had the misfortune of being ridiculed by Marx and by property owners and of having his ideas represented in parodic form during the Revolution of 1848 in France. In any event, he arrived too late because the private property die was cast by the time the Industrial Revolution had done its transformative work on the landscape, on the relations of labor and capital, and on the poetic imagination evoked by Spender. As Freyfogle forcefully, and I think entirely accurately, argues, the poetic visions of the landscape henceforth will not be central enough to the evolution of society, government, and law to be useful to lawyers.
In English literature, the pastoral imagination since the late eighteenth century has been more of a polemical trope than a real option. It has been the means of evocation of a “green world” set in opposition to city and civil society in general. It is a world of escape into which one plunges (as in Shakespeare's comedies and romances) for self-renewal. The great American literalized pastoral found in Thoreau is not all that different. He is a hermit in the woods, like one of those early Church fathers in the desert, and eventually he leaves Walden because, as he tells us, he has other lives to lead.
The American writer who most persists in the claim that the natural must inform the social and the moral worlds is Emerson. Emerson famously declares that words are signs of natural facts, and natural facts are signs of spiritual facts, and therefore nature is the symbol of spirit. If you can believe him, then everything is connected in a chain of being that makes nature, spiritualized, the very foundation of law, and thus of legislation, litigation, and the environmental cause. “Nature as a collection of commodities”--as Freyfogle describes the dominant American view--is of course the very opposite of the Emersonian vision (or that of his avatar, John Muir). Although some of the myriad American utopian communities were Emersonian in conception, they have not led, any more than Emerson himself did, to changes in the history of American land use. More often, they end up parodied, as in Hawthorne's Blithedale Romance, or as in snail darters, hapless toads and other ridiculed endangered species.
Is this to say, as Richard Lazarus suggests, that “human nature,” the “laws of nature,” and “the nature of the nation's lawmaking institutions” operate on different timetables and imperatives? Lazarus observes that in the case of environmental law, formal legal rules are devised to coerce people in the here and now to temper potentially disastrous consequences to the future. Such a fiduciary relationship to nature and the land goes against all the tendencies of our present administration. It also dissents from most of American history, based not only on a sense of manifest destiny in relation to the possession of land, but also on an implicit belief that there would always be enough of it. You could pull up stakes and move on, and in the process leave your trash behind you. The laws in some European countries that force you to tear down and clean up an abandoned strip mall, for instance, still seem unthinkable here. The right to make a mess is still very much part of American freedoms, despite what Justice Blackmun's clerk called “those horrible EPA cases.”
I am struck that the century that produced the U. S. Constitution saw, through the discoveries of the great circumnavigators and other travelers, some version of a fully developed ecological imagination. Rousseau's meditations on how primitive societies were destroyed by the coming of private property--which not incidentally entailed the coming of law, to protect the property one had usurped--do not of course come out of nowhere. Rather, they are prepared by the discovery of so-called primitive peoples who seemed to live in much greater harmony with the land and nature than did Europeans. The most telling discoveries are those of the French, which follow Rousseau's great Discourse on the Origins of Inequality. In fact, his treatise becomes something of a lens through which Louis-Antoine de Bougainville and his companions register and recount their discovery of Tahiti, which they see as the true seat of the earthly paradise. It is a non-theological paradise, as Bougainville and his resident naturalist Philibert de Commerson make clear, and as Diderot then polemically argues in his Supplement to Bougainville's Voyage, which stages a dialogue between a French chaplain and a Tahitian elder. The French, who discovered Tahiti in 1768, got many things wrong, of course. They thought the Tahitians lived in a sort of primitive communism, sharing all the bountiful produce of their island, sharing too the distribution of women without the distorting conventions of European marriage, and its accompanying adulteries and other unhappiness. The Tahitians appeared to be free of the surplus repression that European institutions (state and Church) had over the centuries seen as needful in the repression of their subjects. Tahitians worked only as much as needed to fulfill their wants. They had industry only for the making of subsistence items, such as fish hooks. They seemed to take as their motto some anticipated echo of the Sixties slogan: make love, not war. Above all, they lived in harmony with their island ecology.
The French did not see some of the more oppressive aspects of Maori society. Their report on their discovery was itself the death knell for the island. By the end of the eighteenth century, Tahiti was overrun with Catholic, Protestant, and even Mormon missionaries. It had also lost its complex tribal structure since the Europeans needed to recognize one chief as “king” in order to do business in the way they understood. Nonetheless, the thinking about Tahiti and other societies--including less fortunate ones, such as Patagonia-- represented a remarkable act of empathy and attempted understanding of cultures that conceived their relation to nature differently. Enlightenment, ethnography and anthropology contain a measure of truly ecological understanding.
I am not going to claim that this kind of ecological understanding found its way into the U.S. Constitution--Americans were too busy taming nature, including native populations. But it evokes a vision that is not incompatible with the Constitution, and that finds various American expressions, including James Fenimore Cooper, as the nation follows its largely heedless course of development. In the penumbra of the Constitution--by which I mean the thinking of those who inspired the American Revolution and its aftermath--one can discern a good deal of writing sympathetic to the ecological vision. Could it be drawn on by the environmental movement in the future? For instance, Lazarus's paper ends with the issue of water, which, along with energy, is surely the overwhelming challenge to the near and farther future. As we think about the legal complexities of water, we might keep in mind the vision of American waters in the early accounts by European explorers and travelers. For example, there is Chateaubriand's wildly lyrical account of the Mississippi River--on whose banks bears drunk from eating too many grapes cavort in peace. We might also consider Father Hennepin's account (the first by a European, I believe) of Niagara Falls: “Betwixt the Lake Ontario and Erie, there is a vast and prodigious cadence of water which falls down after a surprizing and astonishing manner, insomuch that the universe does not afford its parallel. ‘Tis true, Italy and Suedeland boast of some such things; but we may well say they are but sorry patterns, when compared to this of which we now speak.” In this manner, maybe water could become a vision and an inspiration, as well as a need and a right.