Paolo Grossi and the environment

The French-language Revue interdisciplinaire d’études juridiques published two articles last year on the relevance of leading Italian legal historian Paolo Grossi's work to environmental issues. 

Paolo Grossi, 2016 (Quirinale.it)

The abstract of the first, by Alessia Tanas and Serge Gutwirth, "Le pluralisme juridique retrouvé au temps des désordres écologiques. Penser la relation entre le droit et les communs de la terre avec Paolo Grossi" (Legal pluralism at times of ecological disorders: thinking the relationship between landed commons and the law with Paolo Grossi):

In this contribution, the authors introduce a few key aspects of Paolo Grossi’s research path and link them to their work on the legal questions raised by landed-commons and local ecologies.

There follows a contribution by Grossi himself, "Une autre façon de posséder. Réflexions historico/juridiques sur les aménagements fonciers en Italie" (An alternative to private property. Reflections on land set-ups in Italy from a legal history perspective):

In his contribution Paolo Grossi provides his viewpoint as a legal historian on collective land set-ups in Italy and shows how, through constitutional jurisprudence and the adoption of Law n° 168 of 20 November 2017, the Italian legal order not only recognizes their legal autonomy but also recovers its pluralism and complexity. Such recognition benefits to the protection of the environment.

Water, fish and property in colonial India

Last week I enjoyed attending on online event of the Asian Legal History Seminar, at which Devika Shankar presented her article, "Water, Fish and Property in Colonial India, 1860–1890", recently published in Past & Present. I recently covered similar issues in my article, "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World", published last summer in Clio@Themis, though I totally missed the cases discussed by Shankar, and she comes at the topic from a wholly different angle.

The abstract of Shankar's article:

Almost exactly a hundred years after the Permanent Settlement of 1793 revolutionized property relations in Bengal, a far less studied legislation would subtly extend the rule of property to include the province’s waters. Bengal’s Private Fisheries Protection Act 1889, which is usually regarded as having been motivated by conservationist or economic concerns, was in fact an attempt to resolve intractable legal problems surrounding the status of flowing waters and fish that had confounded judges and colonial officials in India for decades. Could water be owned like land? And could fish swimming in open waters be claimed as property? These questions would give rise to a number of important disputes in colonial India in the late nineteenth century, during a time associated with unprecedented changes in the agrarian economy. Coinciding with other legal manoeuvres that increasingly helped to render water as property in other parts of the world, the Private Fisheries Protection Act and important judgments that preceded it helped to create exceptional private rights over flowing waters in colonial India. Turning to these developments, this article examines the ways in which judges attempted to resolve contradictions generated by water’s very materiality in an economy that rested so heavily on property.

Devika Shankar, A line of fishing stakes on the Malabar coast, July 2018

International environmental law panel for ASLH

Reposting from H-Environment:

Dear all,

I am a doctoral candidate at Rutgers University New Brunswick, and I am currently seeking co-panelists for the American Society of Legal History conference to be held in Chicago, Illinois, November 10-12, 2022. The conference welcomes papers dealing with legal history from any time period or geographical area, but is only accepting panel proposals. I am seeking to put together a panel dealing with international environmental law in the 20th century, in the broadest possible sense. My paper specifically will talk about the interplay between international conservation efforts and French national interests in the creation of a "French Antarctic national park" in the subantarctic Kerguelen Islands in 1924.

Here is a link to the ASLH website For more information: https://aslh.confex.com/aslh/2022/cfp.cgi

Panel submissions are due March 18th. I know this is a short turn around but I hope to find interest through this forum. The ASLH is a great organization that offers a helpful forum for discussing a broad range of legal history topics, and is especially supportive of graduate students and early career scholars.

Please feel free to contact me at kms557@history.rutgers.edu if you are interested in joining this panel.

All best,

Katherine Sinclair

Bruno Navez, Remains of vats and boilers at Port-Couvreux, Kerguelen Islands, used for the making of elephant seal oil at the beginning of the XXth century

California's 19th-century water law

 Over at Legal Planet, Holly Doremus complains:

California’s water law was developed in the 19th century. It has not been comprehensively reformed since, despite substantial population growth, changing social values, and the appointment 45 years ago of a blue-ribbon commission to recommend changes. Now the “new normal” of the anthropocene promises reduced water availability coincident with increased demand.

It is past time for comprehensive reconsideration of California’s water law system. Fellow Planeteer Rick Frank and I have been working with a diverse group of water law experts to come up with some initial recommendations for change.

The experts' report, titled "Updating California Water Laws to Address Drought and Climate Change",  is here. 

California water law is indeed antiquated, arcane, and impossibly complex. The odd thing to my mind is how mild the reforms being called for are - things like speeding up stream adjudications, protecting domestic wells, improving monitoring and enforcement, and the like - mostly very nineteenth-century ideas themselves (see my book, The Colorado Doctrine). Nothing questioning the basics of the mixed appropriation and riparian system that California uses, or adopting ideas from the many models of water law in countries around the world. I suspect that the authors think this is all that is politically and constitutionally feasible at this point, but it seems to me that even if all these reforms are adopted, California will remain with a very nineteenth-century water law. 

Perhaps a reminder of how much legal history is never just history.

Carleton E. Watkins, Horse-drawn cart beside artesian well, Kern County. c. 1880

Opportunity for Ukranian grad students and postdocs

Here's a call I just received from my home university, offering scholarships for Ukranian research students. Please pass it on to anyone for whom it might be relevant. More information here.

Yellowstone at 150

Anna Price of the Library of Congress's In Custodia Legis recently posted on the 150th anniversary of the creation of Yellowstone National Park, the US's first. Price goes through the legislative history of the statute creating the park, as well as some of the legal issues that arose, including American Indian treaty rights and potential conflicts with settlers claiming preemption and homesteading rights. The latter issue, as the blog points out, also arose in the context of Yosemite Park in the 1872 US Supreme Court Case of Hutchings v Low (a.k.a. The Yosemite Valley Case).

poster designed by Don C. Powell (LOC)