Tani on Calabresi and the "Economic Style"

Karen Tani just completed a fascinating four-part series at Legal History Blog on Guido Calabresi's particular form of law and economics scholarship and its influence on legal thinking. Though Tani doesn't directly deal with environmental issues (nor did Calabresi give them much attention), the series raises important questions that have relevance to understanding the history of environmental regulation and environmental law scholarship in recent decades. In particular the series focuses on the question of to what extent economic thinking in Calabresi's writings claimed exclusivity or made room for other ways of thinking about legal problems. 

Calabresi himself often insisted (as in the subtitle "One View of the Cathedral") that economics was just one factor to be considered in legal analysis, and his classic works (such as The Cost of Accidents and the Cathedral article) also at least paid lip service to this idea, but I have always thought that the depth of Calabresi's economic analysis, juxtaposed with the cursory treatment he usually gave to distributive considerations, broadcast the message that efficiency was the key factor to be considered.

This way of thinking has obviously had great effects on environmental law, starting from the way environmental issues are typically presented to law students - as negative externalities that need to be internalized or collective-action problems that need the aid of law to overcome, rather than, say, as issues of distributive justice or problems of environmental ethics.

Rome and the sea of law

ASOR (Ancient Near East Today) just put up a post by my editorial colleague, Emilia Mataix Ferrándiz: "A Sea of Law: The Romans and Their Maritime World". Mataix Ferrándiz begins:

The sea was key for Rome’s success; it served as the setting of several battles that granted them hegemony over the Mediterranean as well as the main highway for both ideas and commerce. However, human bodies are not naturally suited to the sea; entering or crossing it means challenging one’s own capacities in the face of the power of water. The latter is echoed in literary sources, which often focus on the sea’s enormity and wilderness, thus evoking — and sometimes even exaggerating — its aura of mystery and uncertainty and the effect it has in ancient societies.

Roman legal sources, on the other hand, tend to focus more on the practical challenges and effects of interacting with the sea, presenting a different vantage point from which to study how Romans regarded and dealt with the challenges presented by the sea. So what can we say about how Roman jurists perceived the sea? Although jurists coincide in their understanding of the sea as a dangerous realm not governed by their civil law, the solutions which they provided for similar problems vary from jurist to jurist and from one period to another.

Roman mosaic from Veii (Italy), 3rd-4th century AD, Badisches Landesmuseum Karlsruhe (Carole Raddato)

In the Roman world, spaces were governed by different legal fields. While the land was managed by ius civile (the law of Roman citizens), the sea was a space of ius gentium, or the law of all peoples. It was the jurist Marcian (second–third century CE), who wrote that the sea was the common property to all according to natural law. From his writings the main point to note is that the sea is not subject to an individual’s dominion and, therefore, is also not subject to Roman governance. Despite Roman imperialistic aims and propaganda, it is unlikely that the ideology of rule over land and sea extended to any practical attempts to regulate the use of the sea. 

Mataix Ferrándiz goes on to argue that