Once upon a time the fields were full of swaying wheat stalks and the meadows were full of grazing cattle. Now there is only water. In the Dollard, a brackish lake located between Groningen and Germany, the Eems river meets the Wadden Sea. According to boatsmen, you can still hear the bells of the church towers beneath the waves in the flooded Reiderland.
No one knows exactly how and when the floods happened, but natives of Groningen tell stories about how the farms and fields were swallowed by the water because one wealthy farmer was lazy and antisocial. His name was Tidde Wyneda.
During a stormy night, several neighbours knocked on Tidde's door. They had to reinforce the seawall and Tidde, like all farmers, had to help. But the landowner refused. He supposedly said that he would only take action when the water was 'spear high' on his land. When that happened, however, it was too late. The sea broke the dyke and flowed through the opening while dragging cattle, houses and people with it. The breach happened on the section of the dyke for which Tidde was responsible. He survived the disaster, but had to knock on the door of a monastery for shelter. Tidde waspenniless and humiliated.
Stories without an author
The Volksverhalenbank (Folk tales archive) of the Meertens Institute has several versions of the story. The details differ, but the main plot line is the same. It remains unclear how old the story is, but of the inhabitants of Groningen have been sharing it for centuries. Why? Folklorist and religious scholar Arjan Sterken, affiliated with Radboud University, knows why: Tidde's fate was a lesson for the local farmers.
Sterken discusses his work in his office, which has carpets on the floor and a carpet on the table. Endless rows of books line the walls: thick volumes with Sanskrit, Saxon and Old Frisian. One shelf is filled with paperbacks about encounters with aliens. “I teach the course 'new religious movements', and these alien encounters are part of that,” explains Sterken enthusiastically. “UFO abduction stories are one of the forms that religion and mythology are taking today.” The flickering light of the candles on the table shines on prints of Hindu gods and old maps of Groningen. “That one is fake, by the way.” Sterken points to an African mask next to the window. “It was made for tourists.”
Sterken does his PhD on supernatural beings in legends, myths and sagas. In that context, he also works with the Volksverhalenbank. Sterken: “What is very specific to folklore things is that they are not made by individuals. They ‘live’ in a community, and they are passed on within that group.” This also applies to folk tales. “There is never a single, original author. The stories are part of an oral tradition.”
This makes it difficult to find out how and when they originated. “Nevertheless, folk tales can illustrate what a community was doing over a period of time,” Sterken says. “History is often about ‘great men’, preferably nobility. Folk tales, on the other hand, document the lives of ordinary rural people: they are about their worries, about what their lives revolved around.”
The story about Tidde also shows what was important to the farmers who lived around the Dollard. It's about the threat of the water, and how to deal with it. This was only possible by working together, and that is the message of the Groningen folk tale, says Sterken. “The moral of the story is that you should take care of the land, take care of your community, and make sure your neighbours are safe. Otherwise you will end up like Tidde.”
Law of the dyke
Folk tales told by the hearth showed what was expected of a farmer. But these legends were not enough to ensure solidarity between the farmers behind the dyke. Laws were also needed. Everywhere in the Dutch delta, farmers (and sometimes noblemen) founded water boards, such as the heemraden in Holland or the dijkrechten in Groningen. The precise terminology differs, but these institutions had one shared task: to prevent flooding with rules and regulations.
Ingelanden – the farmers living in a water board jurisdiction – were each responsible for one section of the dyke. They had to make sure that their section was strong enough to withstand the winter storms. Water boards developed extensive systems of laws to ensure that everyone actually maintained their part of the dyke. Laws were enacted in dijkbrieven - dyke letters – and administrators regularly inspected the dykes. If maintenance work was left undone, the person responsible received a formal order or was immediately fined.
The stretch of dyke that a farmer had to maintain was not always adjacent to his own land. Farmers living inland also had to contribute, and wealthier landowners had to maintain larger sections than smaller farmers. On some dykes you can still see stone markers – hundreds of years old – with numbers and letters on them. These were used to divide the dyke sections. In this way, dyke law was tangible.
The future
Jurist Sanne Biesmans works in the Grotius building in Nijmegen, a modern colossus of glass and natural stone. It looks like a spaceship has landed on campus. Whereas Sterken focuses on the past, Biesmans also looks to the future. But that future is not as beautiful as the futuristic temple of the law faculty.
Biesmans’ PhD research focuses on whether and how companies can be held accountable in court for upcoming climate disasters. Biesmans: “I am investigating non-contractual liability. The simplest example is the following: if you beat someone into the hospital, they can recover the medical costs of the injury from you.” That is a rather grim example. Smiling: “Indeed, those are common in this building.”
Jurists prefer clear definitions and precise formulations. During the interview, Biesmans uses a lot of legal jargon such as ‘legal norm’, ‘legal subjectivity’ and ‘social decency’. But the basis is simple, says Biesmans. “I study whether causing climate change is an 'unlawful act'; doing or failing to do anything contrary to law that harms another person.” A jurist would therefore refer to Tidde's neglect of the dyke as a wrongful act.
Valkenburg vs Shell
Researchers have linked the climate crisis to the recent flooding in the province of Limburg. The heavy rainfall that led to the flooding would not have happened without global warming. This natural disaster is therefore not 'natural', as philosopher Boris van Meurs also showed. As a result, a flood victim in the town of Valkenburg could sue polluting companies in court. “But that is in theory,” emphasises Biesmans. “There are many complicating factors. For example, if you hold Shell liable for causing somewhere between one or two percent of global emissions, then you can only recover one or two percent of your damage from Shell.”
It also doesn't help that there have been hardly any climate cases so far. Two years ago, a Peruvian farmer filed a claim in a German court against a major energy producer. He has to take costly precautions against flooding because a nearby glacier is melting due to global warming. He and his lawyer believe that the polluters should help pay these costs. The case is still in court and Biesmans is looking forward to the verdict.
“I am investigating unwritten law,” she explains. There are no dijkbrieven or stone markers as yet. “As a researcher, I am actually doing what a judge would do in a climate case. Without written law, a judge looks for precedents and leads. You don't just make something up and decide, ‘this is climate law’. So as a judge you look at other law, comparable cases, human rights, and ‘soft law’ such as documents from the UN on how companies should behave.” One of the important leads that Biesmans is looking at is the ‘cellar hatch ruling’ (see box).
Injunction stops emissions
Is her research really about who is responsible for climate disasters? Biesmans looks doubtful. “As a jurist I have trouble with such a ‘colloquial term’. A better question is: who can hold you accountable? It is complicated to link a company's emissions to an individual’s damage. That is a step that has never been taken in jurisprudence.” The breach in Tidde’s section of the dyke made it clear who was accountable for the flooding, but in contemporary climate cases the cause-effect relationship is much more complex.
To make things even more complicated, Biesmans not only looks at past damage, but also at future damage: damage that has not yet happened. “I'm investigating whether a company can be given an injunction in this context. When you commit or threaten to commit a wrongful act, the court can say ‘you are not allowed to do this’.” In this way, future disasters can be prevented.
From cellar to climate
In 1961, a visitor fell into the basement of an Amsterdam café. This accident led to a famous lawsuit over who was liable. An employee had left the hatch in the pub open, and if this hadn't happened, the visitor would not have fallen into the basement. Was the employee – and the company he worked for – therefore liable for the resulting injury? The court ruled that the employee and company were indeed liable. “The cellar hatch ruling has taken on a life of its own,” says Biesmans. “The criteria that the judge used at the time have been applied in all kinds of cases. There was no written law that said you couldn't leave your cellar hatch open, but everyone knows (i.e. unwritten law) that you have to close such a hatch.” Based on the same criteria, the jurist believes that companies that cause climate change can also be subjected to claims. After all, isn't everyone aware by now that greenhouse gases cause disasters?
Tidde Wyneda was punished for his inaction by a flood, but his neighbours also suffered. In the past, farmers tried to avoid such scenarios with water boards and dyke law. Today, courts, lawyers and jurists are also trying to create legal frameworks to avoid climate disasters. Biesmans: “Lawsuits can be a powerful motivation for companies. In that case, legal procedures do not have to be conducted constantly; even the threat of such procedures has a large impact.”
And what can companies do to avoid the court cases? Biesmans is resolute: “Cut their greenhouse gas emissions.”
This article is written by Adriaan Duiveman and appeared earlier, in Dutch, on Nemo Kennislink. Photo by Jonathan Ford on Unsplash