Ben Pontin

The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements

This article examines the environmental benefits arising from compliance with common law nuisance injunctions during the British industrial revolution. It argues, based on the outcomes of industrial nuisance actions involving allegations of serious air and river pollution, that many millions of pounds were invested by corporate polluters in designing and implementing clean technologies within the framework of the common law. Nuisance law was not an unqualified success in the field of environmental protection at this time, but overall the findings contribute to the on‐going critique of the nuisance law histories of Brenner and McLaren, which argue that various limitations of the common law are at the root of modern environmental problems. The discovery of historic practical measures of environmental protection through common law enforcement raises important conceptual, policy, and legal questions for today, and disciplinary questions regarding the rigour of realist legal scholarship concerning the historic performance of the law.

The River Pollution Dilemma in Victorian England: Nuisance Laws versus Economic Efficiency

and again in the life and litigation of Indian communities. ‘The colonial legal system also reached right into the heart of the Indian home and family through the personal law system’ (235): the family was not beyond the reach of the colonial state. In short, ‘Below sporadic expressions of nonintervention from the upper administration lay a legal system that was comprehensive in scope’ (235). Certain areas of Parsi engagement with the law demand and get special attention because of the way they dominated litigation and professional life. Religious trusts, libel and group membership were topics which could produce litigation year after year. The intensity of the work served to make the community’s law more rather than less distinctive. It is as if they could not resist resorting to law over questions such as: who could be a Parsee? Over time this gave them increased autonomy within the legal system. Paradoxically it was almost as if they were left to themselves at the same time as they became so active in public life and the legal profession. In the words of the author, ‘Parsi law emerged out of colonial culture clash, not from the ruins of Persepolis. The Bombay patriarchs who built Parsi legal infrastructure drew on their own aspirational visions of group life’ (313). The consequences of their work took on its own force: over decades they made law and the law also made them through making explicit their distinctive qualities. ‘The more Parsi values shaped law through the work of Parsi lobbyists, judges, and litigants, the more Parsis sought legal solutions for their social problems, including core intragroup ones’ (316). In 1883 the distinguished member of the group, Sir Jamsetjee Jeejeebhoy, in considering the creation of Parsi matrimonial courts observed that ‘the Government of India evinced a wise and benign consideration for the special position of the Parsee community in India’ (193). The resultant degree of autonomy was put to extensive use. In revealing clear outlines to this formidably intricate story of legal change involving a social group, a legal profession, statutory reform and very extensive case law within an imperial framework the author has achieved something remarkable. A community and its laws are explained.