January 17, 2011
Deal on Ellickson, Whaling, and the Judicial Invention of Property Norms
Robert Deal (Marshall--History) has posted The Judicial Invention of Property Norms: Ellickson’s Whalemen Revisited. The abstract:
Robert C. Ellickson has argued that whalemen developed norms to settle arguments over contested whales. These norms, Ellickson explained, were largely adopted by courts as the property law of whaling. Ellickson’s point is that whaling norms “did not mimic law; they created law.” Ellickson is certainly correct that the close-knit community of nineteenth century American whalemen managed to settle disputes in ways which maximized group welfare. What Ellickson has failed to recognize is that that the means by which whalemen resolved disputes without violence or frequent involvement of courts was built not upon widely accepted norms, but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honorable behavior arising out of the particular situation and parties involved.
In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were to a large degree responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.
A close examination of trial transcripts and depositions from two of the five whaling disputes from the Sea of Okhotsk that were litigated in the nineteenth century reveals the vagaries of whaling norms and the problems in using judicial opinions to recover such practices. In Heppingstone v. Mammen, it is impossible to draw from the testimony of crew members and expert witnesses anything resembling a norm upon which battles over contested whales could be resolved at sea or in court. The court’s misunderstanding in Swift v. Gifford of whaling practices was quickly accepted by legal scholars as definitive evidence that the whaling fleet in the North Pacific had adopted a single standard for determining when an interest in a fleeing whale ripened into ownership.
Whalemen in the Sea of Okhotsk proved adept at resolving controversies on a common sense, ad hoc basis without universal norms. The close knit nature of their community, the intensely communal nature of their competition, and the economic pressure to settle disputes allowed Okhotsk whalemen to resolve contests without the aid of well settled norms.
I'm teaching Ghen v. Rich on Wednesday as part of the classic "wild animal" trilogy of cases (with Pierson v. Post and Keeble) on the norms and laws regarding how humans reduce fugitive resources to property by establishing first possession. So I'm having fun reading this well-written and historically rich article that challenges some received wisdom!
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