Property in Gaza's sands

Dotan Halevy recently published "Sand and the City: On Colonial Development and its Evasive Enemies in Twentieth-Century Palestine" in Environment and History. The abstract:

This article traces the colonial origins of a crucial aspect of the environmentalist discourse since the mid-twentieth century - the idea that planetary substances should be stripped of ownership rights and become in and of themselves the subject of rights. The article looks closely at the Gaza region under British mandatory rule to explain how the rehabilitation of Gaza city, devastated during WWI, has failed. Gaza's reconstruction efforts, the article argues, collided with the British initiative to arrest the drift of dunes along the coast of southern Palestine. Throughout this project, the British administration extinguished Arab property and usufruct rights to expand state domains. They backed this policy with an elaborate ecological perception that saw sand and its inhabitants as agents of environmental ruin. The quarrel that has developed thus made the Gaza region an imperial test ground for probing what sand is? Does it have a history? And, therefore, can it be claimed as an object of rights? Divorcing nature from culture, the British administration in Palestine rejected the validity of sandy lands' economic past and constructed them as inhospitable 'wastelands' - a purely natural element. As such, sands could be subjected to governmental 'development' through afforestation and urbanisation while time-honoured agricultural practices and land rights of the local coastal population were neglected.

Map of Gaza dunes, Survey of Palestine (1931)

Water law in common law cultures - Getzler's synthesis

The latest issue of Western Legal History is dedicated to the topic of "Water", and I plan to post on a number of the pieces in this issue. 

I'll start with Joshua Getzler's masterful survey of water law in Britain and many of the territories it ruled at various points in history, "Ownership and Control of Fresh Water in Common Law Cultures". Getzler manages not only to integrate major developments in many legal systems - including those of the US, Canada, Australia, New Zealand, India, and Mandate Palestine - and across nearly a millennium (beginning with Bracton), into a succinct and coherent whole, but he does so while elegantly connecting classical doctrine with current concerns, such as environmental protection and indigenous water rights. 

One aspect of the article that I particularly liked was its unpacking of the intertwined and often contradictory lines of thought in the common law, which Getzler deftly connects to Romanist and feudal ideas of property.

I highly recommend this article to anyone looking for a broad yet succinct survey of the history of water law.

(For more on water law in the British Empire, see my posts here.)

Public rights and standing

Owen Smitherman has posted "History, Public Rights, and Article III Standing", forthcoming in the Harvard Journal of Law and Public Policy. The abstract:

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort.

This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Justice Thomas (Stetson University)

Nuisance, planning and the common law in Bombay

Continuing themes from recent posts on British India and on nuisance: Sukriti Issar recently published "Nuisance, Planning and the Common Law in Late Eighteenth-Century Bombay" in The Journal of Legal History. The abstract:

The literature on the legal transfer of English property law to colonial South Asia has long focused on the agrarian context. Urban property and the built environment remain understudied. This article explores how the common law of nuisance found its way into the workings of a Committee of Buildings in late eighteenth-century Bombay. An analysis of the internal files of the Committee of Buildings shows that the Committee focused on public and private nuisance mitigation. Residents filed private party nuisance complaints, taking up nuisance law in their own disputes with neighbours. The Committee’s attempts to deal with public nuisances highlights the resistance of local residents. The conclusion considers the broader question of how we can conceptualize the actors, vectors and mechanisms involved in legal transfer, and its reception. Alternative explanations such as influences from pre-English colonial regimes, the impact of local custom, and the balance between common law and statute are evaluated. Rather than a seamless legal transfer, nuisance in early colonial Bombay demonstrates dialogue, resistance and appropriation.

Plan of Bombay about 1760, from James Douglas,
Bombay and Western India. A series of stray papers (1893)

Privatizing water and fish in colonial India

Devika Shankar's article on property in water and fish in India is now also a blog post at Past & Present. Shankar explains that her article reflects 

a close analysis of over 10 important and highly cited cases from different parts of British India in which judges deliberated on whether flowing water and fish could be treated as private property. Starting with a significant set of cases relating to the planting of stakes in the sea off the coast of Bombay, the article then primarily looks at cases involving rights over rivers in the fluid landscape of the Bengal delta. The article not only highlights the enduring confusion surrounding the status of water in colonial Indian law, but also looks at the different ways in which judges interpreted roman law and precedents from English common law while reaching their judgments. After reaching a variety of conclusions, by the 1880s high courts had begun to simultaneously make room for unprecedented private rights over flowing waters in colonial India while rendering these rights largely redundant by insisting that fish in these waters could not be counted as property until they were caught. The conflicting pull of these judgments however began to create serious problems in Bengal where fishing rights were considered to be especially valuable. It was in order to overcome this impasse that the Bengal government ultimately passed the Bengal Private Fisheries Protection Act in 1889 granting landholders significant rights over fish in rivers across the province. It would do so by significantly strengthening the kinds of private rights that could be claimed over water, and inaugurating a novel category of “private waters” in tidal waters in Bengal and other parts of India. By tracing the arguments and logics that ultimately paved the way for this act, this article highlights the importance of recognizing colonial India, and especially Bengal as an significant site for experimentation with new forms of private property rights over flowing waters.

Charley Brown, Illustrated Guide to the South Indian Railway (1913)

More on property in water and fish in colonial India here.