Historical Analysis in Environmental Law

Abstract

Environmental law has no history. This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun. Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history. Environmental law has no history in a second, sense, too; it lacks history as a mode of argument or analysis. In legal cultures in which precedent and history are often what make a winning argument, the unavailability of historical analysis as a mode of legal discourse — as it is, for instance, in constitutional and property law (two fields in which environmental legal disputes are often entangled) — means that environmental values often are forced to retreat in the face of others. For these reasons environmental law needs both heightened historical analysis and a sense of its own historical roots. This essay aims to sketch current, possible, and desirable directions for future research into the history of environmental law. Before doing so, it notes a current scholarly pathology.

Keywords: environmental law, environmental history, legal history, history of environmental law