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H is for History: making the case for studying environmental law history

In our ‘time of change’ – which in the United Kingdom largely revolves around Brexit but takes different forms elsewhere – it is important for environmental lawyers to think about history. How, though, are we to do so, given that history is the most underdeveloped area of socio-legal environmental law, with very little literature to guide the way? Helen Macdonald’s celebrated book H is for Hawk is written for a general audience rather than a lawyerly one, but it contains valuable insights that account for why environmental lawyers have been indifferent to the historical side of the discipline. This blog is about these barriers.

By way of a brief introduction, Macdonald’s book is principally an autobiographical reflection on the author’s experience of training a wild goshawk (called Mabel) in the aftermath of her father’s sudden death. Its engagement with the subject historically comes through the telling of the parallel story of medieval revivalist T H White, author of The Sword in the Stone, who 80 years ago trained the hawk ‘Gos’, keeping a diary which Macdonald repeatedly references.

One of the historical challenges that the book illuminates is the almost limitless multi-disciplinary character of the study of humankind’s past relationship with the earth. Seemingly every discipline is brought to bear by the author, with a prominent role for study of ‘timeless’ laws of nature (especially geometry, but mathematics and physics more broadly) governing hawk killing of prey, alongside empirical observations and theories relevant to nature-culture of biologists, natural historians, ecologists, psychologists, and scholars of various genres of literature, arts, social sciences, and humanities. Macdonald’s display of polymathic talent is impressive, but also humbling and cautionary, in the sense that it demonstrates the hopelessness of attempting to contain environmental (and environmental law) history within manageable disciplinary boundaries or group of boundaries.

Front cover art for the book H is for Hawk by Helen Macdonald. Fair use via Wikimedia Commons.

A second major challenge is of a political nature, concerning the complicity of historic environmental policy, law, and practice with old and/or discredited elites. Throughout H is for Hawk the author wrestles with the juxtaposition of twenty first century liberalism and her subject’s deep associations with Europe’s ruling classes. ‘Among the cultured peoples the use and possession of the noble falcons [including goshawks] were confined to the aristocracy’ (Macdonald here quotes Captain Gilbert Blaine, writing in 1936). That was the attraction for White, and Macdonald makes frequent references to White’s ‘bad politics’ – he was a Colonel Blimp – from which the author is anxious to be distanced. A particularly memorable passage in this regard concerns Macdonald’s recollections of a visit to the Headquarters of the British Falconers Club, where she is shown a bronze statue of a hawk presented to it in 1937 by Herman Goring, Hitler’s right hand man. The statue is understandably shameful to the club today, hidden in the recesses of the cupboard.

Applied to environmental law, this sheds light on the barriers to history ‘taking off’ as a sub-discipline. Speaking for myself, H is for Hawk helps crystallise the intuitive reservations I have felt when writing about nineteenth century environmental law in Britain, with its fuzzy boundaries and its lords and ladies confidently stewarding nature from on high. The boundaries are blurred because traditional disciplinary sources of law study (in this case historic precedents and statutes) do not tell the full story of the elite power politics underpinning environmentally protective common law and statute of this period, which is disclosed by materials outside of the law library (and beyond a legal academic’s formal training for purposes of interpretation). Macdonald, to reiterate, is aware of both the large and eclectic scope of the necessary materials of study past and the elitism that much of the material is apt to suggest, but I wonder whether it is right to lament a heritage of ‘British Worthies’ guided by ‘moral certainty’ as to the bits of the environment worth protecting. How else could formally tough laws aimed at protecting nature have been as ‘robustly’ enforced in industrialising Britain?

Coming back to the importance of history to Britain’s pending exit from Europe’s supranational regime after nearly five decades of membership, it would be helpful to begin a discussion of UK policy and law in 1972, including expectations arising from the 1972 European Communities Act in relation to the environment. What was environmental law like then (including styles and modes of compliance and enforcement)? A clue is provided by memoirs of civil servant Sir Martin Holdgate, with echoes of ‘British worthies’, ‘moral certainty’, and an establishment’s confidence in business as usual:

‘Had we not been the first country in Europe to have a major environment department, headed by a member of the cabinet [Secretary of State for the Environment, Peter Walker (1970-1974)]? Had we not played a leading role in a wide range of international actions? Was not the Royal Commission on Environmental Pollution [1970-2010] unique in Europe? Did we not have the oldest laws and agencies for environmental protection in the whole of the EEC?’ (Penguins and Mandarins, p 203).

Featured image credit: ‘Hawk’ by Paul Green. CC0 Public Domain via Unsplash.

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