Arthur F. McEvoy

University of Wisconsin, Madison School of Law

NEH Institute: People, Prairies, and Plains

Kansas State University

August 2, 1995







Let me start with a parable. In 1892 an expedition sent out by the Smithsonian Institution went to Guadalupe Island, off the coast of Baja California, found a relict colony of perhaps eight elephant seals. This was remarkable because these seals had been hunted intensively for several decades and at the time were thought extinct. The Smithsonian scientists shot all but one or two of the seals and brought them back to Washington for dissection and analysis.

Now, these people were not stupid or vicious: they were responsible public servants doing what they thought they were supposed to do to advance our knowledge of the world. The trick is that they understood the world in a very different way from what we do.

Today I want to describe for you a model of humankind-in-Nature as a way to begin our discussion of relationships between science, law, and ecology (by which I mean here Nature and its workings, not the science of ecology). The model consists of three distinct but mutually and reciprocally interacting parts, which I'll call ecology, production, and culture. Each of the three reproduces itself over time according to its own internal logic, but it does so in an environment that includes the other two. I claim that using this model gives you a useful handle on how science, law, and ecology relate to each other at any particular time, and also how they change together over time.

Ecology provides constraints and opportunities for human activity, but also responds in characteristic ways to everything that people do in it. Economic production follows the laws of the market, but changes in response to challenges from the natural world and as people imagine new and better ways of living in the world. Human culture, finally, changes as people accumulate experience through working in nature. But as people use that learning to get the things they want from nature, in a very real sense they make nature over in their own image.

When I talk about the "architecture of knowledge" about the world that inheres in a culture, I borrow from the French philosopher Michel Foucault, whose major work, The Order of Things, is a remarkable work but distinguished mostly by being completely impenetrable. At any rate, Foucault's main point is that every culture has such an architecture of knowledge, in which people ask questions about the world in particular ways -- ways that resemble each other across different disciplines but differ in the whole across different cultural eras, or what Foucault called epistemes.

Foucault was not so good at explaining how these architectures change over time. Foucault thought, rightly I think, that these architectures remain stable over long periods of time but that they do change from time to time, as assemblages, and quite suddenly.

So-called "neo-Darwinian" biologists, working in the late twentieth century, have suggested a possible way of describing these changes, in terms of what they call "punctuated equilibrium", in the context of their explanation of biological evolution. An excellent book on this is Stephen Jay Gould, Wonderful Life: The Burgess Shale and the Nature of History.


The eighteenth century in Western European culture makes up what Foucault called his "classic" episteme. Historically, the eighteenth century was characterized by essential stability in the Atlantic system, political stability within the major countries until the end, steady economic growth, and a great flowering of rationalism in art, music, and letters. Contemporary understandings of science, of political economy, and of lawmaking all worked in tandem both to reflect and to sustain this particular social order. Think of it as chamber music: it was pretty great, unless you happened to be a member of the lower classes in one of the imperial countries, a slave, or a resident of one of the lands they conquered.


People in the 18th century organized their knowledge of the world in terms of Cartesian grids and tables of organization. Natural history, which is what they called biology then, took the form of organizing all the different plants and animals by their morphology into genera and species. Linnaeus was the leading practitioner here. Once you laid everything out in a table, and you looked at that table, you were looking at the face of God.

That system was perfect and immutable: Jefferson, for example, found fossils in western Virginia but had no way of relating them to what he knew about the world because he couldn't comprehend the notion that species could go extinct. So it's not just an increment in knowledge or technical capacity that separates us from Jefferson, it's a fundamental difference in world-view.

Remember this when people talk about making law today according to the intent of the Founders. Even if you wanted to, remembering what I said about how the Founding generation felt about wildlife law, it's not clear that you could make 18th century law without 18th century culture and 18th century world-view.


The economic theory of the time was called "the science of wealth," or what we call today mercantilism. The economy was capitalist, for sure, but differed significantly from capitalism as we know it because the picture of a healthy economy was one that had a lot of cash in it and that grew in a steady, orderly way. A nation's wealth consisted of its stock of land and cash, and an economy worked by moving the cash around from hand to hand so that everybody stayed employed. The concept that you could create wealth through innovation was foreign to Enlightenment thinkers, though at that very moment the beginnings of industrialization were undermining their whole social order.

The similarities between this view of economics and this view of natural history should be apparent. The structure of the economy, like that of Nature, was rational, benign, and enduring. The goal of public policy was to keep it that way, growing steadily but not too fast and certainly not so fast as to entail any serious disruption in the established way of doing business.


The Constitution of the United States is a great example of 18th century political thought. There's motion and conflict and progress, to be sure, but the Constitution is designed to contain all of those forces within orderly bounds, so that nothing changes too fast or too much in response to one faction. It's all very Newtonian, very Enlightenment.

The private law of land use was designed to maintain the stability of the English economy. Anything that disrupted a landowner’s "quiet enjoyment" of his title could be enjoined as a nuisance. Landowners could use the common law, then, to prevent others from diverting the traditional (they called it "natural") flow of a watercourse -- this is the doctrine of riparian rights. A town-dweller who found his light blocked by a neighbor's new building or fence could sue for damages or, indeed, could go onto the neighbor's property to tear the offending structure down and plead the doctrine of "ancient lights" in excuse when the would-be improving neighbor sued him for damages himself.

All of these doctrines made up the legal underpinning of that benign, orderly, 18th-century English countryside that we can all easily picture. All of these doctrines were part of the common law, which came over more or less intact from England in the 18th century. They disappeared very quickly in the 19th, as we'll see in a moment.

In America, there remains to this day a strong element of 18th century thought in our public lands policy, mostly as the legacy of Thomas Jefferson. Jefferson's idea was that the healthiest, most stable society was one built up of a large number of independent landholders, most of them farmers and most of them endowed with more or less equal shares of wealth.

Jeffersonian public lands land policy was designed to sustain that kind of social order, though it was doomed from the start. To get the public lands into the hands of his virtuous citizenry, Jefferson's idea was not to sell the land but to give it away in small pieces to actual settlers. He'd also do it slowly so as not to disrupt the value of existing holdings: in economic terms, the idea was to keep the price of land high and stable by pegging the size of the market to growth in population. Jefferson thought, for example, that it would take several hundred years to develop Louisiana territory. As new lands filled up, they'd gradually be organized into new states that would be admitted to the Union as equals of the original thirteen.

Square farms organized into square townships organized into more or less square states with a capital in the geographic center. The Northwest Ordinance of 1787, which organized the territory north of the Ohio River and east of the Mississippi. The states that emerged from this territory more or less comport with the Jeffersonian model: Ohio, Indiana, Michigan, Illinois, and Wisconsin. See how orderly, how 18th century it all is?

It was also doomed. Even at the time Jeffersonian land policy had its opponents, chiefly Hamilton, who thought that the land was best used as a source of cash to fund government projects. This meant selling the land for money, in lots as big as people wanted to pay for, and as fast as the government needed the dough. In the end the Hamiltonian view won, although vestiges of the Jeffersonian policy survived for a long time in such statutes as the Homestead Act, the Land-Grant College system, the Agricultural Extension Program in the USDA, and so on. But mostly they didn't work very well because they were simply too hard to administer on such a big frontier.


The 18th century world came to quite a sudden end in the few years around the turn of the 19th. Lots of things contributed to it, but I'll point out a couple of manifestations. One, certainly, was the British Industrial revolution, which we date from 1783 to 1804. Another was the French Revolution of 1789.

Just as natural history, the science of wealth, and the common law all worked together to explain and sustain stability in the world in the 18th century, industrialism, Darwinism, and what I'll call pro-growth instrumentalism in the law worked together to explain and sustain progress, which is the polar opposite of stability. History, as Foucault put it in a nice phrase, "was restored to the irruptive violence of time."

Where 18th people organized their knowledge of the world around permanent, inherent structures, 19th century people confronted a world that was a lot more violent and disruptive and so thought in terms of analyzing the unseen forces that drove change. The two attitudes are as different as a Beethoven symphony is from the “Well-Tempered Klavier.”

It's hard to say what caused this change; Foucault didn't even try. The democratic and industrial revolutions were at the same time partial causes and partial manifestations of the change, which seems to have happened all of a sudden throughout the Atlantic world in the few years around 1800. Lots of things came together so that the whole social order shifted quite suddenly into a new and altogether different state. Changes in political economy, in science, and legal theory all worked together to justify and to promote the change.


Technically speaking, an industrial revolution takes place when an economy's savings rate jumps suddenly and discontinuously from 1-2% to about 10% and stays there, so that growth becomes not arithmetic, orderly, and deliberate but logarithmic, disruptive, and self-sustaining. In social terms it means that progress takes place not through accretion to the wealth one already has but through the continuous destruction of old ways of doing things and their replacement with the new.

Economists stopped explaining the structure of wealth and began instead to analyze the forces that drove change in production. Your exemplars here are probably Malthus and Ricardo, although I don't want to say a whole lot about them here. Economists pointed to supply and demand, or to Malthus's tendency of population to outstrip resources, as the inexorable laws that drove economic change. These forces were as divinely ordained and as inexorable as 18th-century schemes of classification for wealth and for species.


Industrialism fit quite nicely with the democratic ideologies of the French and American revolutions because it promised that everyone could pursue their individual happiness within the context of a perpetually expanding economic pie. Democracy and economic growth go together in exactly the same way, then, that mercantilism and landed oligarchy do. They "fit" in the same Foucaultian architecture: although the architectures themselves are very different, the fit is the same. Both the U.S. and to a lesser extent England systematically overhauled their common laws so as to promote economic change rather than restrict.

In the U.S., doctrines like ancient lights and riparian rights went out the window. Quite suddenly in the first two decades of the 19th century, where courts would define as "reasonable" and thus lawful the choice between two competing uses of a waterway that most resembled the traditional one, now courts defined as "reasonable" and lawful the competing use that generated the greatest net social product.

It doesn't take a lot to figure out the implications for the environment here. Fisheries in New England rivers, for example, evaporated one after the other as people put up dams to power mills in the 1820s and 1830s. Americans, in fact, simply jettisoned lots of English wildlife law within a few decades of the revolution, both because wildlife seemed so abundant in the New World and because the English solution to game management was to make wildlife the exclusive property of the aristocracy. As one California judge put it in 1902, "He has read history to very little purpose who does not know that game laws were a fruitful source of oppression of the masses of the people. It was better to exterminate the game at once than to preserve it for the special benefit of a favored few."

Now, the destruction of timber, wildlife, and other resources that came with this change in legal regimes didn't escape notice entirely: John Quincy Adams described the rapacity with which Americans tore at the continent's natural resources in terms of "the thirst of a tiger for blood." Industrialization had lots of social costs: extinguished wildlife, pollution, a horrific toll of industrial accidents. But everybody just figured that these were the price that society had to pay for freedom and progress. There were broken eggs, sure, but people were making a heck of an omelet.


The organizing principle of 19th century biology was, of course, Darwinism. Darwinism suggested that more complex systems inexorably drove out simpler ones, in social life as well as in the natural world. This had lots of implications, not only for science but for public policy and for the natural environment.

It meant, for example, that the replacement of Indian hunter-gatherer economies with settled agriculture was not only inevitable but a good thing. If the North American bison seemed to be bound up with those Indian economies, then they were doomed as well. Indeed, in the 1870s it was more or less explicit Federal policy to hasten the extinction of the buffalo, for two reasons: (1) Darwinism suggested it was inevitable anyway, and (2) extermination furthered the policy of diverting the Indians away from their "primitive" lifeways and into European-style settled agriculture.

The nineteenth-century is also the point at which you begin to see a very clear distinction between theoretical and applied science. Science, and especially science pursued with public money, was worth doing insofar as it promoted economic growth and the development of the continent. Settling the continent was the nineteenth-century equivalent of the space race, in that it generated lots of useful information and lots of great historical data on how people looked at their natural environment. Daniel Botkin, for example, has a new book that works with the Lewis and Clark journals to get at this problem. The Army surveys for the transcontinental railroads in the 1850s and 1860s always took biologists and geologists along; their reports are very valuable historical sources, and fun to read.

The problem was that the single-minded emphasis on productivity and growth, combined with a Darwinian sense that extinction was an inevitable component of progress, led to episodes like the story about the Smithsonian explorers and the elephant seals that I told you at the beginning. The result was that by the end of the century wildlife populations in North America, along with those of the Indians, reached their historic lows.


Wildlife was just one of a number of social problems that came to public attention in the 1890s, just as the U.S. economy reached industrial maturity. Labor warfare, industrial accidents, corporate giantism, the emergence of a national market and the corresponding decline of local culture and local autonomy in large parts of the country, all generated a sense that American society was changing in significant ways. Wildlife was one of the environmental manifestations, as was the announced end of the frontier. In the upper Lake states, demand for timber for railroads and construction had so rapidly and thoroughly stripped away the pine forests that had blanketed the whole region that lots of people warned of a timber famine, not unlike the so-called "energy crisis" that preoccupied the country in the 1970s.


Economically, what marked the turn of the twentieth century was a new cluster of technological innovations, which together make up what economic historians call "the second industrial revolution." The core industries were in electricity, organic chemistry, internal combustion. What distinguishes these industries from textiles or railroads, say, is much greater role that for advanced science and technology play in production and innovation. This required a significant capital investment in innovation itself.

Businesses underwent a significant change in structure, accordingly, as the modern corporate form emerged. Production was now organized into gigantic, bureaucratically controlled firms under the leadership of a new class of professional managers. This was a kind of "managed capitalism", as opposed to the laissez-faire, free-market capitalism that typified most of the nineteenth century.


With the new culture came a particular view of the relationship between science, production, and lawmaking; one that differed significantly from the 19th century view. Just as businesses were managed by professionals according to scientific principles, so, too, the idea went, could society as a whole. The watchwords here were economic efficiency, which people at the time defined according to the utilitarian formula "the greatest good for the greatest number over the longest time."

The idea was that scientific expertise, worked into law through centralized authority, would solve social problems. There were lots of professional social scientists everywhere, many of whom worked on government commissions. These recommended legislation, which usually took the form of establishing a bureaucratic agency to manage this or that problem or sector of the economy: forestry, corporations, rural electrification, banking, what have you.

Progressives had a great faith in facts and analysis: they believed that science and technology would generate a single best answer to any social problem and that, in turn, everybody would follow.

The so-called "sustained yield" theory that organized people's thinking about forestry and wildlife problems for most of this century is one example of this. The idea was that scientists could calculate how much a given resource (trees or fish or whatever) produced each year. The government could then limit the harvest to exactly that amount of surplus production so that the resource would continue to produce indefinitely.

The "climax" theory of plant succession in ecology is another example. Out of this new approach to science, production, and lawmaking, then, emerged the modern, twentieth-century regulatory state. The organizing principles, again, are efficiency and expertise. Think of it as two guys (and I do mean guys -- the thing is hugely gendered, though this is not the place to get into it), one with a clipboard and the other with a gun. That's the Progressive state. The scientist generates technical answers to social problems and the guy with the gun enforces them on behalf of a central authority. And everybody is supposed to go along. The paradigm agency for this theory is the US Forest Service.

You'll note that what this nice, tidy approach to conservation and other social problems assumes right away is the fact that people don't ordinarily take lightly to dictation from scientists and bureaucrats. They like to be involved in decisions that affect their lives. In the Progressive world-view, however, democracy is theoretically not a problem because nobody in a rational frame of mind could deny that the scientific answer was the best one. Value choices are theoretically not a problem in the Progressive view, either, for the same reason. It turns out, however, as we've learned over the last few decades, that these are very real problems.


Conservation was where they worked all of this out, for couple of reasons. Again, the Forest Service was the key laboratory; here they worked out the sustained-yield, multiple-use concept that dominated U.S. resource law well into the end of the century.

Conservation was enormously popular: Theodore Roosevelt used the metaphor for all kinds of social problems that he wanted to address: rural development, child welfare, what have you. He identified himself with the movement, and even ran for President on what he called the "Bull Moose" ticket.

There are a couple of reasons why conservation was such a powerful icon: Government could try it out on the public lands, which it owned. That meant that they didn't have to start out by telling people what to do with their own lives and property. The end of the frontier and contemporary fear of an impending timber famine generated public support for new initiatives. The opposition was defused because the stakes weren't as high as they were in other important social problems of the day, such as banking regulation or industrial safety.

Most of all, conservation held out the promise that if you only managed the resources intelligently there would continue to be plenty for everybody to use.

The last is key. It's premised on use as opposed to preservation or non-use. It implies continued economic growth, and doesn't address questions about the inherent limits of resources to produce. The measure is anthropocentric, the calculus is monetary, the resources are passive objects of manipulation.

The famous fight between the conservationists and the preservationists shows this up very well. Non- use, as Muir wanted, never had a chance. The preservationists lost the fight, but got a consolation prize in the form of the National Parks System. Recreation, however, which is the organizing principle of the parks system, is just another kind of use, and as it turns out a highly economic and ecologically destructive one at that.


A couple of things happened to disrupt the Progressive-New Deal marriage of efficiency, expertise, and bureaucracy. This system is still in the process of breaking down and the successor is not yet clear, as evidenced by the conflict we now see over environmental law and the management of the public lands. As I'll discuss tomorrow, the core of it is that the neat assumptions that Progressive theory made about the political neutrality of scientific expertise and the rationality of bureaucratic management have simply collapsed.

As for signalling events, the atomic bomb certainly the clearest example that science and technology were not necessarily politically innocent nor inevitably benign. Another signalling event would be the publication of Rachel Carson's book Silent Spring in 1962, which taught people not only about the dangers of pesticides but about the ways in which government, big agriculture, and the universities colluded to steer American agriculture in the direction of pesticide use and to squelch consideration of alternatives. There was, finally, the Santa Barbara oil spill, which was an immediate precursor to Earth Day in 1970.

In the post-war period, then, science began working in a different way, lawmaking began working in a different way, and our approach to environmental issues changed as well. I'll try to describe the new configuration for you (it's clearer in some areas than others), and show how they fit together.


Economically, what distinguishes the postwar culture from what came before it are advances in chemistry and physics, and particularly in artificial intelligence. Many fewer people work in manufacturing industries and many more in service industries. All of these changes, and the social and cultural changes that came with them, are nicely described in the first chapter of Samuel Hays's latest book, Beauty, Health, and Permanence.

Scientists in the postwar world are much more likely to describe the world in terms of interaction and uncertainty than they are in terms of knowable laws and immutable abstractions.

The general public got very powerful object lessons in uncertainty and interactivity during the late fifties and early sixties. People learned from their newspapers that atmospheric nuclear testing in one part of the world could generate radioactive fallout that could then make its way around the globe via the jet stream, fall in the rain, and make its way through the grass into the milk that they fed to their children.

Rachel Carson made a similar point very powerfully with respect to DDT and other pesticides, though she made the additional, very important point, that the interaction was not only a biochemical one but a social and political one, in which government, scientists, and Big Business all played important roles.

There were other object lessons, as well. These included the increased importance of random-variable, statistical analysis in predicting the weather and the outcome of this or that Presidential election. These, greatly aided by advances in the technology of artificial intelligence, made it possible not only for ecologists to track the influence of random changes in the environment, but made the technology and its fruits readily available for public consumption.


A different style of lawmaking emerged in the postwar period, as well. In the Progressive and New Deal eras, government agencies typically focussed on particular industries; managing them as if they were gigantic, economy-wide firms according to "scientific" management principles. You'd thus have the FAA to regulate aviation, the FCC to regulate broadcast communications, the Federal Reserve to regulate banking, and so on.

Earth Day 1970 came in at the beginning of a new burst or reform legislation. This time, however, legislatures created agencies, not to manage specific industries one at a time, but to control the social problems generated by industry as a whole.

The Clean Air Act, for example, regulated air pollution by all different industries at once The Clean Water Act works the same way. The Consumer Product Safety Commission, likewise, addresses not one particular industries but attacks the problem of unsafe products of all kinds manufactured by all kinds of industries. The Office of Economic Opportunity, finally, regulates the problem of race and sex discrimination across the entire economy, not in any one particular industry.

All of these amounted to a new style of regulation, one that took into account that, in the environmentalist's phrase, "everything is connected to everything else." Spurred on by the qualitatively different threat to public health and safety that postwar technologies posed (nuclear energy is the prime example), this new approach to regulation led to a great increase in the size of government and its impact on people's economic lives.


Just as conservation was the organizing principle of Progressive and New Deal reform in many areas, environmentalism was the organizing principle of the new approach to regulation that emerged in the 1960s and 1970s. Just as people began thinking economically and scientifically about social problems at the turn of the twentieth century, they began thinking about those problems ecologically in the 1960s.

Hays has described the ways in which this change manifested itself in organized environmentalism in Beauty, Health, and Permanence. Rising standards of living since World War II led many more people than before to value outdoor recreation in "natural" settings. Antibiotics and other changes in medical technology had apparently all but conquered infectious disease and left in its place environmental pollution and so-called "lifestyle" diseases as the main threats to public health.

The new environmentalism, then, abandoned the old dichotomy between conservationists advocating use and preservationists advocating non-use. In its place was a much more general, thorough-going critique of the way in which industrial society worked and the way in which it generated a whole host of social problems, from pollution to wilderness destruction to poverty and discrimination.

Like its predecessor, the new movement owed much of its power to the way in which contemporary environmental issues symbolized a broad range of social problems.


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