Nuisance Law and the Industrial Revolution: A Reinterpretation of Doctrine and Institutional Competence

Publication Date01 Nov 2012
AuthorBen Pontin
DOIhttp://doi.org/10.1111/j.1468-2230.2012.00935.x
Nuisance Law and the Industrial Revolution:
A Reinterpretation of Doctrine and
Institutional Competence
Ben Pontin*
Contrary to the leading studies of Brenner and McLaren, it is argued that nuisance law was
consistently a robust constraint on polluting industrial enterprise during the industr ial revolution.
The defining nuisances of industrialisation were‘inter-neighbourhood’ in character.They affected
country estates surrounding industrial seats into which pollutants were displaced by increasingly
tall chimneys and long outfalls.The victims of revolutionary nuisance included elite proprietors
with unsurpassed capacity to enforce the law.Like Galanterian ‘haves’, who (it is postulated) use
the law to reinforce a social advantage,nineteenth century proprietors enforced the common law
to protect the ecological fabric of rural life from the threat of polluting corporate enterpr ise.This
is a fundamental challenge to the orthodox view of the common law’s complicity with industrial
ecological harm in the past, and poses important questions about the prospect of strengthened
common law protection of the environment in the modern day.
INTRODUCTION
Social histories of English nuisance law depict this ancient common law tort as
offering inadequate protection of ecology during the industrial revolution.1In the
earliest leading study, Joel Brenner attributed the problem to a judicial sleight of
hand in which the courts covertly modified the application of agrarian strict
liability rules so as to favour industrial enterprises in their disputes with victims of
industrial nuisance.2In his critique-cum-companion to this argument, John
McLaren suggested that what individual judges did or did not do with respect to
formal doctrine was less critical than the ‘institutional impediments’ which
rendered nuisance law‘impotent’ in the face of industr y’s unprecedented assault
on the environment in the nineteenth century.3In this article, I offer a compre-
hensive reappraisal of both nuisancedoctr ine and institutional competence during
industrialisation. I argue that the application of nuisance rules grew consistently
more favourable to nuisance victims,and that the institutional competence of the
*Director of the Environmental Law Research Unit, Bristol Law School, University of the West of
England.
1 J. Brenner,‘Nuisance Law and the Industrial Revolution’(1974) 3 Journal of Legal Studies 403; J. P.S.
McLaren,‘Nuisance Law and the Industrial Revolution:Some Lessons from Social History’ (1983)
3Oxford Journal of Legal Studies 155; N. Morag-Levine, Chasing the Wind (Princeton,NJ: Princeton
UP, 2003); T. Golan, Laws of Man and Laws of Nature (Cambridge, Mass: Harvard UP, 2004).
2 Brenner,ibid, 408.(‘The pr imary reason why the common lawof nuisance had so little effect either
in hampering the pace of industrialisation or in preventing the deterioration of the environment was
that, while the black letter of the law changed little, the field of its applicability became relatively
narrower’).
3 McLaren, n 1 above, 159, 170.
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© 2012The Author.The Modern Law Review © 2012The Moder n LawReview Limited. (2012) 75(6) MLR 1010–1036
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
law in this field was strong enough to allow for an orchestrated and ostensibly
successful common law response to the characteristic pollution of the age.
The reappraisal begins with an exploration of what exactly it was that was
revolutionary about industrial nuisance such as to put the environmental creden-
tials of the common law to the test. It is argued that nuisance law historians have
mistakenly characterised revolutionary nuisance as a sudden, all-consuming and
indiscriminate assault on the environment cutting across the media of land,air and
water.4In fact,industr ial nuisance emerged gradually,in a geographically particu-
larised way and, crucially, in a manner that was largely manageable within the
framework of the common law.The manageability of nuisance at this time stems
from the extent to which industrialisation created victims within the powerful
rural neighbourhoods situated outside growing urban conurbations, into which
waste was disposed with the help of tall chimneys and long outfalls.These victims
of what I term ‘inter-neighbourhood nuisance’included elite country proprietor s
who correspond to what Marc Galanter has described in a different context as the
‘haves’ of society.5Haves are not easily overwhelmed but, rather, they derive
considerable resilience from the law,as I argue they did in this case.
How elite proprietors used nuisance law to suppress industrial pollution is
addressed in the following section with reference to the leading case law. I argue
that nineteenth century law reports, interpreted in their context, demonstrate
that judges consistently favoured the‘countr y set’ in their disputes with polluting
industrial undertakings in at least three important respects: first, by expanding the
categories of actionable injury so as to embrace interference with an estate’s
increasingly valued natural amenities;6second, by dismissing public and quasi-
public corporate defendant arguments for a broad application of the defence of
statutory authorisation; and third, by granting an injunction virtually as of right.
These plaintiff-friendly developments were tempered by qualifications (such as
the award of injunctions on a suspended basis) which accommodated the interests
of any industrial defendant who showed a willingness to take responsibility for
cleaning up their polluting processes through technological innovation and other
behavioural changes aimed at compliance with inter-neighbourhood norms.
The institutional capacity of the common law during this period is addressed
in the next section. I argue, in contrast to McLaren,7that a combination of
philosophical, political,societal and economic f actors made nuisance law a most
potent tool for the conservation of local ecology.These factors converge around
the landed power structure underpinning the gentlemen and women proprietors
4 For this idea of ‘total’ pollution see Brenner, n 1 above, 408ff; McLaren, ibid, 162–167. See too
A. S. Wohl, Endangered Lives (Cambridge, Mass: Harvard UP, 1983).
5 M. Galanter,‘Why the haves come out ahead: speculations on the limits of legal change’(1974) 9
Law and Society Review 95.This is in marked contrast to much pollution today,the victims of which
tend to be among the most deprived socially and economically (B. Bullard,Dumping in Dixie: Race,
Class and Environmental Quality (Boulder, CO:Westview Press, 1990)).
6 Thus overcoming the exclusion of interference with delectatio inhabitantis (pleasure, delight,
comfort) in William Aldred’s Case (1611) 9 Coke 57b, 77 ER 816 (Aldred’s Case).See n 66 below
and associated text.
7 McLaren, n 1 above, 156. For a more general critique of the institutional competence of the
common law as a mechanism of social control, see R. A. Epstein, ‘The Social Consequences of
Common Law Rules’ (1982) 95 Harvard L R 171.
Ben Pontin
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 1011
(2012) 75(6) MLR 1010–1036

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