MARC-ANTHONY YAKOU

LEGAL SYSTEMS VERY DIFFERENT FROM OURS

FALL 2013

ROUGH DRAFT FINAL PAPER

 

Environmental Law in Legal Systems Very Different From Ours (Barring the creation of a better title)

 

i.               Introduction

 

a.     Scope

                 

                  This paper will explore ancient and exotic legal systems that provide for environmental protection and natural resource management. In ancient times, like today, populations have depended on life sustaining natural resources for sustenance, materials and fuel. Beyond survival, natural resources, as well as ecosystem services, are needed to accommodate any civilization. Environmental protection has been an element of at least a few historical legal systems.  The existence of environmental protection measures in various legal systems evidences an understanding by lawmakers of the harm caused by poor resource management, throughout history and across the world.  Comparing historical and modern conservation measures may lead to valuable insight with regards to modern environmental policy. 

                  The majority of this paper will be focused on environmental laws governing the use of one of the ancient world’s most precious resources: Trees. The services provided by stands of forests were apparent to observant ancients, and laws to protect from deforestation, though mostly unsuccessful, were existent. Management of other natural resources, such as water, wild animal products, and land can be found in exotic legal mandates and some key examples will be discussed. Further, regulation of land use also constitutes a substantial portion of my inquiry. By no means is this paper an exhaustive or complete picture of conservation laws in exotic legal systems, but a discussion of a few can lead to a curiosity about these types of laws in general.

b.     Function of environmental protection and management

                  The basic function of environmental protection law is to maintain healthy living conditions and protect valuable resources. In monetary terms, the basic goal is to use the interest without depleting the principal. In the context of natural resource exploitation, using the “interest” without depleting the “principal” is basically the logic of sustainability. (CITE Sand County Almanac  HERE).

                  A famous essay called “Tragedy of the Commons” by Garrett Hardin lays down the argument for why rational actors, left to their own devices, and focused on short term economic gain, will exhaust a common natural resource. His thought experiment takes place in a normal, open field, which is utilized by herdsman for the grazing of animals.

“Each herdsman, being a rational actor, will attempt to maximize his own gain. The herdsman will ask himself ‘what is the utility to me of adding one more animal to my heard?’ The utility has one positive and one negative component. The positive component is a function of the increment of one animal. Since the herdsman retains all the proceeds from the sale or use of such animal, the positive utility is nearly +1. The negative utility is a function of the additional overgrazing caused by one more animal, Since, However, the effects of overgrazing are shared by all the herdsman, the negative utility for any particular decision-making herdsman is only a fraction of -1. Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another... But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit--in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.

 

                  While Hardin credits “a little-known pamphlet in 1833 by a mathematical amateur named William Forster Lloyd” as the source of his theory, it seems that lawmakers have been attempting to abate this phenomena, practically since the birth of civilization. Law makers have tried to control and manage the extraction and exploitation of natural resources, sometimes thought of as common to all, so as to provide for livable and healthy conditions for the benefit of both individuals and enterprise. While no legal system has ever provided for true sustainability, some of the policies discussed in this paper reveal that the logic of sustainability justified environmental laws.

ii.              First Babylonian Dynasty

 

a.     Land Management

 

                  Hardin’s article was written in 1968, but apparently even very ancient lawmakers recognized the need to manage resources. There is some evidence of this even as far back as the reign of the famous lawmaker Hammurabi, from the first Babylonian dynasty, in modern day Iraq. My inquiry into environmental laws of the first Babylonian dynasty is founded mainly in a book of translated letters, which consists of official decrees by Hammurabi and his ministers. The name of the book is Letters of the First Babylonian Dynasty by Godfrey Rolles Driver.

                  Many of the letters demonstrate that the central government served a sort of land management function, mostly by settling property disputes. The main function of land is, of course, to utilize so as to produce goods. One of the letters in particular, shows that the central government’s land use policy attempted to ensure citizens the right to land for the sake of food production. It also gives a glimpse of the legal recourse that a citizen would have against the government if they were to go hungry because of their own lack of farmable land. The letter reads as follows:

Speak unto Samas-hazir, saying: Thus says Hammurabi: On reading this my tablet, give the fields unto the fisherman and the fowlers and show them their limit. Let them till (the fields), that they may not sue the palace for a field (for the satisfaction) of their hunger.  # 5 pg  2

 

                  Many of the letters show this type of land management, at times, even transferring or reinstating ownership of land among citizens. While this type of management might not constitute environmental protection per say, it does show the intent of the government to redistribute the land resource, so as to maximize good for citizens generally, and may even fight starvation. Land use regulations in modern U.S. law mandate use restrictions for private land, govern the subdivision of land, and can even have the effect of transferring title (Cite). They implement the planned arrangement of our communities, setting up agricultural, residential, commercial and industrial districts, thus essentially dictating the character and quality of the immediately surrounding human environment. The management of resources like land and water in the first Babylonian dynasty may have similarly shaped the lives of its citizens.

                  The Babylonian government managed land not only so as to ensure an adequate personal food source, but also for the benefit of industry:

Speak unto Samas-hazir, saying: Thus says Hammurabi: Ibin-Amurrum, the secretary of the bakers, has spoken thus to me, saying: “The 20 bakers, men of Ea-dungi, under my control, have not obtained possession of the field.” Thus has he spoken to me. If, as Ibni-Amurrum has spoken to me, the 20 bakers, men of Ea-dungi, under the control of Ibni-Amurrum, have not obtained possession of the field, give to the 20 bakers, the men of Ea-dungi, under the control of Ibni-Amurrum, as to the bakers their companions, a field in the field which belongs to the palace. # 10 pg 4

 

In this passage it seems the central Babylonian government used land to subsidize the bakers. It also seems to show that the central government owned and managed its own land. These and many other passages show recognition by the Babylonians of the finiteness of the land resource, and the value of managing that resource so that it could be used for various purposes.

                  The U.S. government also maintains title to lands, sometimes subsidizing private industry like cattle ranching by allowing access and grazing. (cite). These public lands are also commonly held as open space and recreational areas, providing important ecosystem services and opportunities to experience the outdoors. Policies governing the use of public or royal land, existing in both modern U.S. law and ancient Babylonian mandates, serve an important function in managing environmental conditions. While the impact of providing a field for what seems like a guild of bakers in the first Babylonian dynasty, would hardly effect environmental conditions in the same way a lease to extractive industries on federal property would, it shows that these types of land management decisions were manifest even then.

b.     Water Management

                  In addition to the land resource, water sources were also subject to management by the central Babylonian government. It seems they had water management policies, and to some extent, canals and damns to ensure water supplies in times of drought, and prevent flooding in times of wetness.

Speak unto Samas-hazir, saying: Thus says Hammurabi: if there is water at Larsa and Ur, build no damn at the mouth of the rivers, of which I have spoken to thee. If there be not water at Larsa and Ur, build dams at the mouth of the rivers, of which I have spoken to thee. That there may be water indeed at Larsa [and at] Ur.  #2 pg 2.

 

Speak unto Samas-hazir, saying: Thus [says] Hammurabi: The flood makes (haste in) coming; the waters are (increasing) much. Have the reservoir which has been constructed for the marsh opened and fill with water the field on the confines of Larsa.  #7 pg. 3.

 

Speak unto Yakun-asar, Samas-hazir and Ubar-Sin saying: Thus says Hammurabi: If you inspect and (find that) in the flood which is coming the embankments do not hold those waters, [open] the canal Hurram (and) the canal Nub- . . . ., as I have told you. #31 pg 10

 

Again, while these illuminating passages may not evidence a protection of environmental resources per say, they show a management of water resources by the central government. The construction of canals that could be opened and closed, as well as damns that could be utilized to ensure water supplies, shows that much energy was expended to ensure livable environmental conditions, especially near two of the empires biggest cities, Larsa and Ur. This passage also shows a reliance on empirical data in setting policies governing the management of water sources.

                  Considering the arid nature of the region, management of natural resources like farmable land and water supplies was a key role of the central Babylonian government. It is self evident that water supplies were needed to maintain environmental quality and livable conditions, for drinking, farming, and carrying away effluent. But the letters reveal perhaps an even more protective policy with regard to the use of lumber.

c.     Forest Management and Conservation

                  A use of lumber which is discussed in the letters is shipbuilding. One letter in particular consists of a royal decree with regards to a ship building project.

                  . . . He shall construct ships in Larsa; withhold not the grain and the dates which he asks of thee for the caulker, but give it to him. Let the work be accomplished in accordance with the wages which have been given; let grain and dates. . . . . be given. They shall not be negligent, they shall not be remiss in building the ships. And I have written unto Sep-Sin; he has built one ship. Give him 3 kors of grain and 2 kors of dates for the hired workmen. And let them give unto Sep-Sin 2 poplars from the poplars which are stored in Larsa and let them leave of the tarpaulins. . . And let them give unto Sep-Sin indeed tarpaulins for the ship which he has built. 63 pg. 24.

 

It seems shipbuilding was indeed an activity championed by the Babylonian government, and those who constructed ships were the subject of much support and reward from the palace. The passage also shows a possession of stockpiles of lumber by the Babylonian government.

                  The materials for building ships seem to be primarily wood (poplars) and tarpaulins. Because ship building was highly valued in Babylonian society, inevitably, it seems the government decided to manage forests and thus the lumber resource.

Spear unto Samas-hazir, saying: Thus says Awel-Ninurta: May Samas grant thee life! Sin-magir and Apil-yaum, the minister of the forests, have come in unto the palace about the timber and the tithe on them, and I have given them their orders. Concerning the forests, the king has thus bidden them, saying: “Neglect not your forests but take care of your forests. When I see damage done to a single bough in the whole thereof, I will not suffer the man charged with that duty to live.” Thus have they spoken, saying: “. . . . has not a tablet touching the forests indeed been given to us? In accordance with that tablet we have not indeed let the rangers be disorderly in the forests.” Thus have they spoken to me, and I have sent word to thee. Now I am dispatching them unto thee: let them not take on lease whatever forests there are and. . . . write this upon a tablet and give it to them. . . . let them not incur blame. These things are very pressing in the opinion of the palace; complete it for me. . . . # 33 pg 11.

 

                  This passage evidences the existence of a minister of the forest, along with rangers, who it seems were in charge of looking after forested areas. It also shows that a tithe was levied on lumber. Perhaps, as in modern times, such a tax was levied so as to create a disincentive or barrier to logging and the use of lumber. In this ancient letter we can read Hammurabi’s mandate to the foresters, not to neglect the forests. If harm comes to one tree branch the man responsible for caretaking is to be killed. He also forbids the leasing of any forests; this may be a prohibition on leasing to private parties the right to carry out logging or agricultural operations in forested areas. This policy may have been to reserve the precious trees for official use by the palace, or for specific government contractors. The penalty for negligence of a forester in maintaining the forest seems to be extremely harsh, death at the site of a broken bough. Such a policy was likely used to deter negligence, instead of kill foresters. 

                  This harsh regulation of the forest was likely due to a dire shortage of lumber in the empire, on account of ship building, clearing land for agriculture and other activities. Such regulation shows a recognition by the government of the finiteness of the lumber resource, and the need for conservation and management of that resource. As with most reactionary laws, as we will also see in mid-evil Germany and Venice, these policies probably failed to effectuate a useful maintenance of the lumber resource. There is some evidence that Babylon was forced to take part in the importation of lumber, an extremely expensive activity in the ancient world. Some argue that the lack of resources like lumber, and the disappearance of ecosystem services provided by forests, was a driving factor in the decline of the Babylonian empire under Hammurabi’s rule.

 

iii.            Inca Empire

a.     Land Use Management

                  My Inquiry into Incan laws pertaining to the environment is based mainly on an article published in the scholarly journal, Capitalism Nature Socialism entitled “Conservation in the Inca Empire” by J. Donald Hughes published on February 25th 2009.  According to this article, the Incan state was divided as so:  The Sapa Inca, or the head monarch, was a sacred person, which absolute power. The Sapa Inca legally owned all the land within the empire and all the people as well. While the Sapa Inca was based in Cuzco (the capital city), four governors ruled the North, South, East and West divisions of the empire. The priesthood, who were in charge of the worship of the Sun God, was also powerful, and had control over a large segment of land and labor.

                  The Inca took power over their vast empire through use of force. Upon conquering an area, they would appropriate and redistribute lands, herds, forests and waters: what Hughes calls “reproductive goods.” According to Hughes, enough lands and herds were granted to local communities so as to meet the basic needs of the people. There was also a sort of general welfare segment, which was used to support the needs of widows, orphans and soldiers. A 3rd segment of productive lands and animals were given to the sun god, and a 4th for the benefit of the Inca. A set order of planting was mandated, first to be cultivated were the fields of the Sun God, second were the general welfare fields, third the fields of normal peasant families, followed by the fields of the local chief, and finally the Incan land. All able bodied people were charged with working the land. Tilling the soil with a foot-plow was required for all men. Even the Sapa Inca is to have ceremonially tilled the soil.

                  The products of the Sun God and Incan lands were placed in storehouses, preserved using such methods as freeze-drying for potatoes, and blanching and drying for maize. Wool from the Sun God and Incan herds was to be made into clothing by local people, and also put into store houses. All stored products would be redistributed, as needed, throughout the empire, using the seemingly very effective Incan road system, which was also maintained using mandated labor. Those subject to Incan control paid taxes in the form of labor, and were rewarded by having access to a mass distribution of essential goods from around the empire.

                  The extent to which these land use schemes regarding agricultural production contemplated abating over use is not apparent. Diving the land, designating uses, and requiring labor does not evidence conservation per say, but as with the Babylonians, and indeed in modern U.S. law, land use policies serve to manage the environment, and thus dictate the use of resources and ecosystem services that derive from the land. The Inca seem to be mainly concerned, in the land management context, with producing a surplus of necessaries, like clothing and food, which can be easily distributed throughout the empire. This redistribution could perhaps minimize over use and maximize the benefit gained from the agricultural production of every parcel of land. Thus, a policy of non-waste is in itself a conservation policy.

                  Use of terracing and construction of irrigation systems also demonstrates an attempt to derive the most benefit out of the land, and maintain the land resource in a productive state. The Inca would terrace whole mountain sides, fighting erosion and increasing arable land. Specialized engineers oversaw the building of terraces as well as irrigation channels. The use of terraces signals a knowledge of the harm that can come from unabated erosion, and a need to conserve the soil conditions for the purpose of agriculture.  Irrigation channels were used in the highlands, as well as in the coastal lowlands. These channels extended into desert regions of the empire, increasing agricultural productivity of arid lands. All of these works, when mandated by the government, constitute a portion of the environmental policies of the Inca. Overall they show an effort to maximize goods produced by the land and animals, and distribute those goods for the benefit of the Incan subjects.

                  Natural sources of fertilizer were protected by mandate of the Incan government. Deposits of bird guano on the Chincha islands were extremely valuable. The guano from each island was rationed, and designated for use in specific provinces. Again, this type of redistributive policy likely had the effect of abating over use and preventing waste.

                  The guano was used to fertilize crops in the coastal lowlands and was even transported into the mountains. The Incan government protected the valuable fertilizer by protecting its source, the birds. No person was to set foot on the islands during the birds breeding season, the penalty for killing a sea bird or disturbing a nest was death.  This policy shows an understanding of the finiteness of the resource, and an intention to avoid the tragedy of the commons through the use of strict government regulation. This is also a prime example of managing a resource so as to utilize the interest, without depleting the principal.

                  The Inca had conservation schemes governing the use and promotion of forests and lumber. There is some evidence establishing a pattern of deforestation in the region around Cuzco before Incan dominance. The Incan government practiced tree planting and extended tree stands considerably. The main use of lumber (mostly Alder) was for construction purposes and fuel. Other uses, such as to shade roads and canals, to improve landscaping, and to prevent soil erosion, also justified tree planting schemes.  These functional reasons for mass tree plantings were accompanied by the belief that trees were sacred. The word for tree, malqui, is also the Incan word for ancestor.  Thus there may have been both functional, and religious incentives behind tree planting schemes. Objectively, such practices can be seen as conserving both tree resources and environmental services provided by trees. 

                  Wild forests were deemed state property under Incan rule, and the exploitation of trees was closely regulated. A special minister, called malqui camayoc, was appointed to oversee the management of the forests. Unless property authority to do so was granted, Cutting or burning fruit trees, woodlands, timbers or fields of straw was forbidden, and was punished by “death or some lesser punishment.”

                  The use of wild animals was also closely regulated by the Inca. Wild relatives of the llama were prized for their wool, and deer were used as a source of hide and meat. The hunting of these animals was forbidden at all times except for during the annual ceremonial hunt, a mass event involving thousands of people, which would rotate once a year, to a different quadrant of the empire. The rotation allowed animal populations to rebound and wool to grow. Hughes also suggests that this made the animals docile, unafraid of humans, and thus very easy to kill.

                  The annual ceremonial hunt, called chacu, was presided over by the Inca himself. The animals were herded together by “beaters” and then extracted. According to Hughes, tens of thousands of animals were caught. Young female deer and the best male deer were released, while older female dear, beyond the age of breeding were killed. Wild lamas were not killed but were sheered and released.

                  In the first Babylonian dynasty, there seems to have been a more ad hoc approach to land use management, settling cases, transferring land, and providing for people on a case-by-case basis. In the Inca state, land use restrictions were dictated on conquest and were absolute.  Both civilizations had special administrators who governed the forests, and protected the resource with strong regulations. (ADD ANALYSIS different approaches)

iv.             Islamic Law

a.     General Principals

                  My inquiry into Islamic laws relating to the environment is based on an article in the Columbia Journal of Environmental Law entitled “The Ancient and the Modern: Environmental Law and Governance in Islam” by Geoffrey E. Roughton.  The Quran, which is regarded as the word of god relayed through the prophet Muhammad, is the primary source of Islamic law. The sunnah are a collection of Muhammad’s “sayings, deeds, and tacit approval of practices.” The sunnah can be used to fill in gaps and clear up ambiguities left by the Quran. Secondary sources of Islamic law are created by scholarly consensus and analogy to the rules of the Quran and sunnah. Islamic law also allows for the creation of legislation, where that legislation serves the public well being and comports with general Islamic law.

                  Roughton argues that Islamic beliefs place man in the role of steward on earth, and require man to govern his relationship with the environment according to God’s will. This role includes refraining from abusive exploitation of environmental resources, and “preserve[ing] the environmental balance that god has established.” He later considers man’s role as a usufruct, writing, “A usufruct is a right of “use and enjoyment of the profits of property belonging to another as long as that property is not damaged or altered in any way.” This type of understanding of man’s role on earth comports with the logic of sustainability, in that it allows use of resources, but not destruction of the earth’s ability to produce those resources.

                  One interesting aspect of Islamic environmental beliefs presented by Roughton is the lack of a functional justification for those beliefs. While the civilizations discussed above seem to ground the majority of their environmental policies in maximizing material benefit, some sunnah suggest a more philosophical and religious justification for environmentally beneficial practices. The passage follows.

A famous hadith contains the instruction that “when doomsday comes if someone has a palm shoot in his hand he should plant it” and that he will be rewarded for doing so. Scholars have taken this saying to mean that Muhammad encouraged the planting of trees not only because they might provide some tangible profit, but because there was some intrinsic good in planting a tree that made it a worthwhile act even at the end of the world. Similarly, Muhammad is related to have said: “if anyone plants a tree or sows a field and men, beasts, or birds eat from it, he should consider it as a charity on his part” and “whoever plants a tree and looks after it with care, until it matures and becomes productive, will be rewarded in the Hereafter.” These hadith suggest that, because planting a tree is a productive act of charity that pleases God, Muslims should promote the growth of plant life even where it will not materially benefit them personally. (INTERNAL CITATIONS OMITTED)

Activities that benefit people, animals, and the world generally are championed not because of the potential that they will be used to generate material wealth, but because of a dilute and even intrinsic perceived benefit. Whatever the justification, planting trees and cultivating fields are objectively beneficial to the human environment when done with due restraint and proper methodology.

                  Roughton presents other Islamic stories that contemplate the role of man as steward of earth. The following story suggests that future generations should be considered when using land. Benefiting future generations can be seen as a functional justification for such laws, assuming one has a real interest in the survival of future generations of humans. Perhaps it can be seen as a more religious based justification, because of the uncertainty of death and the argument that there is not any real utility in fostering good living conditions on earth for the sake of posterity.

One story tells of Umar--a companion of Muhammad and his second successor as leader in secular matters--encountering an old man who had not planted his crops because he expected to die soon. Umar admonished the man, who had a son, to plant them anyway--and he did, with Umar’s help. This account further illustrates the principle that personal profit is not the only reason to care for land and crops: a Muslim must take future generations into account as well.

                  A concern for future generations is central to any environmental ethic. While natural resource conservation and environmental protection serve to benefit people and markets in the present, the welfare of future generations more fully justifies the concept. Technological progress prompts many to believe that future generations will be well suited to cope with the anthropogenic degradation of resources and ecosystems, but planning to maintain the conditions which we know are hospitable to human life is principally, more sound, than just assuming that they will figure it out.  

                  Beyond the religious underpinnings of Islamic environmental policies, formal land use institutions called harim and hima are used to protect environmentally sensitive lands, or common resources which benefit the community. Harim will restrict development near certain sensitive zones, “around watercourses, wells, and settlements,” So as to prevent damage to water sources or living areas. Hima is used to reserve hunting lands or forests for the benefit of the public. Woodcutting and grazing are activities that would normally be forbidden in the Hima zone. As in other civilizations, land use restrictions like harim and hima manage the way the human environment is utilized, as thus impact environmental conditions. The existence of formal institutions for conserving land evidences a legal method for placing restrictions on land use so as to fight environmental degradation and prevent poor living conditions.

b.     Ottomans – Mejelle

                  The Ottomans were responsible for putting together the first comprehensive and modern Islamic legal code known as the Mejelle. Written according to the Hanfi school of jurisprudence, the Mejelle had a few mandates pertaining to the environment.

It specifies that water, grass, fire, and naturally-growing trees are “free to be used by all” and that men “are partners in these three things.” In the case of water, underground channels, naturally-occurring wells, seas, and large lakes are specifically mentioned as water sources that are free for all to use. Grass or trees that grow on unowned land and grass that grows naturally on owned land are similarly available to all.

 

Here we see that some natural resources were held as common among all. Following Hardin’s logic, one would expect the rational actors to increase their use of the land incrementally, until those common resources were depleted. Even resources occurring naturally on private land are open to use by all. But there was an important flip side to this common ownership of rights to natural resources.

 

the Mejelle protects the ability of the community to use common resources and limits personal use where it conflicts with community rights. One can use a community resource only “on the condition that he does not cause damage to another” and does not prevent another from taking a community resource. This rule applies even when a community resource is located on private property. For example, although one can generally acquire property rights to land near a well or a river and exclude others from that land, one cannot exercise this right if there is no other nearby water source from which the public can drink. In such an instance, the Mejelle requires the water source’s owner either to take water to the people who need it or to allow these people onto his or her land as necessary.

 

 

The Mejelle likewise imposes punishments on those who damage community property: anyone who destroys another’s property willfully or negligently is liable for the diminution in value that he caused.

 

Thus the exploitation of environmental products is also limited by the common ownership principal. Using a common resource to the point of depletion would be to interfere with the rights of others and thus violate the law.  Damaging community property would lead to what seems to be the equivalent of a suit in nuisance, in modern American legal terms. One who damages community property, like this who cause public nuisances, is made to pay for the damage suffered. Nuisance suits were some of the first legal avenues used to challenge activities that harmed common resources, especially with regards to air quality. Perhaps in the case of the Ottomans, these laws could be used to prevent activities which negatively impacted common resources, and thus the human environment. 

v.              Holy Roman Empire

                  My inquiry into forest conservation measures is based on a book called Green Imperialism by Richard H. Grove. The book has only a small excerpt pertaining to the Holy Roman Empire’s regulation of forests and, because the primary sources cited to by Grove are all in German, I had trouble expanding upon his findings.

                  In the German case, as well as the other civilizations of the middle ages discussed, it is very clear that the rules were intended to conserve the forest for the sake of maintaining the lumber resource. This shows a realization by central governments of the risk of resource depletion, and the harms that would befall the empire if a nationalized lumber resource was non-existent.

                  Germany was one of the first European countries during the middle ages to establish regulations pertaining to forests. The German’s utilized lumber for building materials and fuel, and the extent to which forests were disappearing was of great concern to governmental entities. Early on, by about the 12th century A.D., anti-deforestation mandates exited across various localities in Germany. By the end of the middle ages, a general rule against forest clearing was established, and permission to clear wooded areas was granted only in special circumstances.

                  King Rudolf was responsible for promulgating an entire forest ordinance in 1289, which was later restated by Henry VII, who ruled the empire for a brief period during the early 14th century. King Rudolf’s forest ordinance of 1289 pertained mainly to protection of the NÜrnberg Royal Forests. The ordinance stated that “harm had come to [the king] and the city of the kingdom in the destruction of the forest of the kingdom and in its transformation to cultivated land.” The transformation of previously forested lands into cultivated lands is regarded in the ordinance as a catastrophe.

                  While this shows the protection of a lumber resource, it may also suggest early environmental justice issues. The environmental justice concept is centered around the idea that well off peoples have a disproportionate access to the benefits derived from environmental protection. When the king creates an ordinance protecting those forests which belong to the palace, it would perhaps serve the interests of the king, by providing game for hunting, lumber, fresh air, and a general recreational area. This type of regulation would likely not effect a meaningful conservation of the lumber resource, or the ecosystem services provided by trees, for the benefit of the populations that inhabited the empire. In fact, in the modern world, as we will see in the venetian case, poorer peoples sometimes oppose conservation measures, because of the perception that they diminish their ability to make economic use of the resources which are being conserved.  Poorer peoples also suffer disproportionately from the effects of environmental degradation, perhaps because of the increasing ability for more wealthy and politically powerful groups to exclude land uses that cause harm to human health and environmental quality from their own localities. In the case of King Rudolph and King Henry, they also had such power.

                  The ordinance went further though, and anxieties about the shortage of timber for fuel and construction lead to replanting schemes in the empire. In 1304, “The Hagenaure Forest and the Frankenweide near Annwiler,” agricultural lands which had previously been forested areas, were the subject of replanting schemes. A few years later, in 1309 and 1310, replanting orders pertaining to the NÜrnburg royal forests were promulgated. The ordinance mandated the replanting of forests on lands abutting the Pegnitz River, which has been subject to clearing for agricultural use in the preceding half century.

                  These types of environmental policies seem to be mainly a reaction to the panic surrounding the need for lumber for use as fuel and building materials. Because trees take a long time to grow to useable size, reactionary laws are likely less effective in providing sources of lumber for use than say, Incan style conservation measures, which preserved existing stands of lumber, as well as perpetuated their existence. As principal is depleted, surviving on interest becomes harder and eventually, extremely impractical. This is especially true with a resource like trees, which take decades to regenerate.

vi.             Venetian Empire

                  The Venetian empire of northern Italy also developed tree planting and forest conservation measures as a response to the decline of lumber resources in the empire. The Venetians were engaged in trading with Islamic states in the east who had a great need for sources of lumber. The Venetians also had a dire need for lumber, especially for the purpose of building ships and barges. The center of ship construction in the empire was forced to move from Venice, further inland, where sources of lumber were more readily available.

                  The lack of forested areas also seems to have caused a problem for the citizens of Venice. Increased erosion due to forest clearance near waterways threatened to fill the Venetian lagoon with silt, carried by rivers and streams. While none of the forest conservation measures from the Holy Roman Empire, discussed above, were justified by the ecosystem services provided by stands of forests, the Venetians seemed to have an awareness of the erosion problem, and the services forests provided in combating that problem.

                  In response to the siltation of the lagoon, The Council of Ten (who ruled the Venetian empire), required replanting programs of all formerly forested areas near the banks of flowing waters in the mid 15th century. In modern times, siltation due to increased erosion causes water quality and infrastructure problems. Silt building up on the back side of dams increases the physical stress on those dams. Substances sequestered in the soil, when released in too great a quantity, can impact water quality, and add to the cost of treating the water we drink every day. A considerable amount of money and energy is expended to mitigate the damage cause by erosion, and the state of California has set up laws which prevent logging on or near the banks of rivers and streams. Erosion control is thus an extremely valuable service provided by forests, and the Venetians recognized that value.

                  The use of lumber for ship building materials was also a high priority for the Venetians, and between 1470 and 1492, “a definite policy designed to conserve and increase the supply of oak from state woodlands was formulated.” Hugh Cleghorn, a man affiliated with the East India Company, who was considered a great proponent of conservation, wrote an influential report to the British Association for the Advancement of Science in 1852, in which Venetian forest conservation measures were referenced.

“As far back as 1475 the subject attracted the attention of the famous Venetian Council of Ten, by which a law was passed on the 7th of January of that year, regulating in great detail the clearance of the forests. . . the mountain forests especially were protected by judicious regulations, which were renewed from time to time down to the very year of the extinction of the old Republic.” Pg 28 FN 29

 

                  Attempts to replenish the supply of lumber ultimately failed, and the destruction of Oak forests in northern Italy continued. As the situation worsened, the panicked attempt by the Venetian state to maintain what lumber supplies it had left negatively impacted economic enterprise in Crete. By the late 16th century, the Venetian state prohibited vineyard development in Crete in an attempt to save any remaining forests on the island. This situation demonstrates the interrelatedness of natural resources, and the broad negative impacts to populations and economies that can come from poor management. 

                  Increased demand for a product can lead to an increased supply, where that product is easily renewable, but sustainable management of forests was perhaps, too great a task for most ancient lawmakers. The Venetians, like the Babylonians, were eventually compelled to import lumber. Their failure to manage and maintain lumber resources contributed to the decline of Venice, and favored maritime powers who had yet to deplete their stands of lumber.  Grove explains the shift:  

“By about 1600, a general famine of timber was being experienced throughout the Mediterranean region. This assisted the process by which the Dutch and British were able to move into the Western European and Mediteranean carrying trade. Moreover, Venice was impeded, through the sheer cost of shipbuilding in Italy, from competing for trade and colonies further afield. . .” pg.27-28

 

                  The Venetian example, like others, demonstrates the ability of resource conservation and environmental management policies to affect economic and political power struggles. It also shows the ineffectiveness of laws that react, as opposed to laws that plan ahead, especially with regards to non-renewable resources. 

 

vii.           French Forest Ordinance of 1669  

 

                  Perhaps one of the most highly respected administrations in European history, Louis the XIV and his regime decided to codify an ordinance governing the French forests in 1669. Colbert, a famous right hand man of Louis the XIV, perhaps drawing on lessons from the Venetians, Germans and others, persuaded Louis the XIV that a lack of wise forest management would lead to the destruction of France. The ordinance did not come out of nowhere, but was a collection, and reworking, of “confused and miscellaneous body of custom, ordinance, and rights of use in the past.”

                  The French government was able to effectuate a sort of preliminary injunction on use of the royal forest during the 8 year period when the ordinance was being created. During that time, while Colbert, distinguished council and others formed the ordinance, “. . . no cutting was done in the forests of the king, no one with rights of use took wood from them, no livestock went into them.” Other peculiarities of the ordinance include its express purpose of securing resources for the sake of future generations. It proscribed the over use of the forest, but allowed for private exploitation of the resource within limits.

                  The ordinance is fairly comprehensive and based on sound ecological principals. My exploration of the ordinance is limited to those provisions pointed out by Glacken in his book Traces on the Rhodian Shore . The ordinance regulates the exploitation of lumber, the use of lands for grazing and the extraction of fruits, acorns and beechnuts. It also set up a governmental entity to manage the forest, and collect valuable data regarding the forests. Additionally, it safe guarded the reproductive capacity of trees, by protecting seedlings and young trees. Importantly, it recognized the need of industry to utilize the forest, and permitted uses that would not endanger the viability or perpetuation of the forest.

                  Sheep, goats, ewes, and lambs were forbidden in the forest, on its boarders and on other lands. (Title II, 6). This policy is sound because these animals will eat young seedlings and other plants essential to the forest ecosystem, thus jeopardizing the perpetuation and even expansion of forests.  

                  “Kilns, furnaces, charcoal making, grubbing and uprooting, lifting or removal of beacons, acorns, and other produce” were all restricted activities under the ordinance. (Title XIX, 13). All these activities require an exploitation of forest resources, and thus were the subject of regulation. Acorns and beechnuts could be collected and sold when they were available in sufficient abundance so as not to injure the forest.

                  Acorns and other nuts were also a valuable food source for domestic pigs and thus subsidized pig farmers. Allowing pigs into the forest to feed was strictly regulated. The number of pigs allowed in the forest was dictated by the government, after careful examination by the proper authority. (Title XVIII, 1). Those wanting to access the forest for the sake of pannage bore the cost, proportional their number of animals, to dig ditches or clean out old ditches, wide enough and deep enough so as to protect young tree shoots or coppice woods from the animals.

                  The hammer-stamp, used “for marking corner trees, divisions, border trees, balliveaux or seed-bearing reserved trees, and others to be reserved” was locked in a chest in the council chamber and its use was highly restricted. (Title II, 3). Rights of use did not extend to reserved trees, and the 27th title considers the rights of private parties in relation to reserved trees or protected seedlings. It says such trees “shall, in time coming be reckoned as part of the capital of our woods and forests, without the dowagers, donees, contractors, usufructiers, and their receivers, or farmers, being able to make an pretensions to them, or to any fines which proceed from them.” (Title XXVII, 2).

                  The ordinance also provided for the exploration of the woods, to find royal lands that were void of trees, so that they may be replanted. Owners of forested areas abutting royal forests bore the cost of digging a separation ditch “four feet wide and five feet deep,” between the royal forest and their private land.  

                  Uprooting of certain trees was allowed only through proper permission from the palace. Lime could not be manufactured within a set distance (one hundred “perches”) of royal forests, and removing substrate (sand, earth, marl or clay) was strictly regulated. Extracting copsewood and small wood for the purpose of deriving black powder or saltpeter was prohibited and was heavily penalized. (Title XXVI, 11-13) All huts built of stakes within half a league of the forest were to be demolished, and no such huts could be built within two leagues of royal forests. (Title XXVII, 17). Demolishing already existing structures is a seemingly wasteful practice and no doubt, implicated the wellbeing of residents. Perhaps this regulation was meant to be severe so as to inform all living near royal forests of the gravity of the new ordinance.

                  Making ashes in the royal forest was prohibited, (Title XXVII, 19) as was the charring, burning or bark stripping of trees.  If Coopers, tanners, turners, sabot makers, and others of like occupations kept workshops anywhere within half a league of the royal forests, their stock-in-trade would be confiscated, and they would be fined one hundred livres. (Title XXVII, 22-23). Conveying or kindling fires was subject to an absolute prohibition. (Title XXVII, 27,32)

 

                  ADD ANALYSIS.

viii.          Conclusion

a.     Analyzing the exotic systems has revealed the importance of environmental conservation across different civilizations and geographical locations.

b.     These ancient people’s protection of resources and environmental features evidences a common concern among all people to maintain a suitable level of environmental quality for ourselves and generations to come.