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)

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.

The reasonableness standard, Israel's current crisis, and Edward Coke

As protests continue to erupt in Israel over the government's proposal to oust the power of courts to review decisions of the government and its ministers for reasonableness, I thought it worth taking a look at the historical origins of this doctrine in an area of particular interest to this blog - water law.

Israeli administrative law's reasonableness standard was inherited from the British, who ruled Palestine from 1917 to 1948 and imported much English law and legal culture to the middle eastern jurisdiction. In the 1928 Supreme Court case of AG v Altshuler ([1920-1933] PLR 273), for instance, the court held that a municipal bylaw of Tel Aviv was invalid due to unreasonableness, relying on the English precedent of Kruse v Johnson ([1898] 2 QB 91).

Sir Edward Coke

As many will know, the reasonableness standard was apparently introduced to English law by the 1598 decision of the Court of Common Pleas in Rooke's Case (5 Co Rep 99b, 77 Eng Rep 209). At issue was the power given to the Commissioners of Sewers by statute (the 1531 Statute of Sewers) to assess lands adjoining water courses in order to fund the building of works to protect adjacent lands from flooding. The Commissioners assessed a certain Carter, who had seven acres of land flood-prone adjoining the Thames, with the costs of repairing the banks of the river along a long segment of the river, leaving a further 800 acres, possessed by others and similarly threatened by the waters, free of charge. In their defence, the Commissioners pointed to the language of the statute (s 3), which gave them the power to make repairs 'as Case shall require, after your Wisdoms and Discretions'. Edward Coke's report explained what he saw as the rationale behund the court's rejection of this claim:

Notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law [emphasis added - DS]. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections ; for as one saith, talis discretio discretionem confundit [such discretion confuses discretion].

So administrative discretion, explained Coke, must be subject to 'the rule of reason and law'.

One might have legitimate criticisms of the way the reasonableness standard is currently applied in Israeli law, but it is clear that the current government's main motivation in its proposed legislation is simply the desire to be free of the rule of reason and law - which explains why there are hundreds of thousands of us out on the street protesting...

Not so fast: Nature versus the Common Law concludes

I haven't posted in the last few weeks, leading my friends at the Legal History Blog to reasonably conclude that my series on Nature versus the Common Law was finished. But now I have some time to post what is in fact the final installment in the series.

The posts in this series, based on my article in Clio@Themis, aimed to illustrate a once-common way of thinking about law and legal claims, in which the natural environment was held not only to provide the physical background on which polities and their legal systems existed, but to demand from these legal systems a measure of accommodation. For some judges, it is true, the demands of nature, however worthy or desirable from a social or economic point of view, had no place in court; a judge's role was to resist such claims in the name of the law. For many others, however, environmental realities might be imbued with normative force powerful enough to outweigh considerations of legal precedent and tradition. Moreover, while environmental differences could sometimes break the chains of black-letter law, environmental similarities might at the same time create new legal bonds, as in the Indian and Canadian cases that looked to the law of the independent United States of America, with is great rivers, for legal guidance. All this is to say that in the context of water law in the British Empire, nature could often be "jurisgenerative", to use Robert Cover's term – creating law.

The environmental rhetoric of these courts may, at first glance, seem but a particular instance of the wider phenomenon of colonial and newly independent courts working to stake out the independence of their legal systems from the law of the old country. Yet this would be a mistake: Most of the judges arguing for nature's normative force were themselves British; and in the cases examined here even judges of the independent United States argued not for a general rejection of the English common law, but for the inapplicability of some of its water law rules due to supposed environmental incompatibility.

In conclusion, though, it should be noted that this study has shown that nature also had a "jurispathic" role, impeding the smooth flow, or "transplant", of legal norms around the empire. Legal norms, in particular the common law, spread around the British Empire through a network of orders, legislation, publications, correspondence, educational institutions, career paths, and more. Yet the spread of norms, never smooth, was hampered by a number of factors, some of them natural : distance, forbidding seas, and monsoon winds, to name a few. These factors impeded the transmission of legal ideas and norms in all areas of law. At the same time, this study has highlighted an additional mechanism through which nature sometimes frustrated the spread of norms: perceived environmental similarity and difference.

Nature thus had a dual normative role in this context: creating new norms while at the same time extinguishing others. One need not take a deterministic view of the place of nature in legal history, nor recognize in nature any sort of agency of the intentional kind, to acknowledge that nature had an important role in constituting the connections that both facilitated and obstructed the global flow of water law in the age of empire.

Yet if the first set of law-impeding environmental factors, deriving from physical impediments to legal communication, has historically applied with similar force across all areas of law, the efficacy of the latter mechanism, based on perceived environmental factors, presumably has been correlated with the degree to which the area of law directly dealt with environmental issues. With regard to water law, as we have seen, whether environmental conditions in fact dictated or determined the rejection of common law norms, it is clear that judicial perceptions of nature did play a role in impeding the spread of English norms in this field. I have argued elsewhere that forest law, too, was at least in some contexts heavily influenced by perceptions of environmental foreignness and change. Further study might reveal similar patterns with regard to other related areas of law, from sanitation regulation to wildlife protection.

Happy spring holidays!

Nature versus the Common Law VI: Diversion of water

In the last installment in this series we looked at how the English rule on escaping water in Rylands v Fletcher was rejected in British India due to perceived differences in the environments and needs of the two countries. Today we look at a classic issue of water law, complaints by riparian owners of upstream water uses that interfered with their own uses. As with the issue of escaping water, what was considered "natural" could turn, here too, on local natural conditions.

The traditional common law rule of conflicting riparian uses – that an upstream riparian may not divert a stream's water to the (unreasonable) detriment of downstream owners – was explained by the court of King's Bench in 1625 (Shury v Piggot, 81 English Reports 280) in terms of natural law: "a water-course […] doth begin ex jure naturæ, having taken this course naturally, and cannot be averted" and "the nature of this [water-course] is to be current [i.e. to flow]".

In the leading case of Evans v Merriweather in 1842, the Illinois Supreme Court advanced a distinction: An upper riparian might reasonably consume all the water in the stream if his use were a "natural" one, necessary for existence, but not were it to be considered "artificial", for the mere increase of "comfort and prosperity". The court then suggested that the application of this distinction would vary depending on natural conditions:

The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could live if water was not employed in irrigating lands, or in propelling his machinery. In countries differently situated from ours, with a hot and arid climate, water doubtless is absolutely indispensable to the cultivation of the soil, and in them, water for irrigation would be a natural want. Here [in Illinois] it might increase the products of the soil, but it is by no means essential, and can not, therefore, be considered a natural want of man.

What riparian uses were to be recognized as "natural", and therefore permitted, was thus dependent on the climate and environment. Irrigation would be considered an "artificial" use in the American Old Northwest, as it would be in England, but the court had legitimized changing the law if and when the common law spread to arid lands.

This way of thinking was crucial for the development of water law in the arid western states and territories of the United States, in which the traditional common law of riparian rights was rejected in favor of a new system. The new law, known as "prior appropriation", opened up water resources to appropriation by all, not just riparian owners, and allowed them to take as much of the water as they could put to beneficial use, regardless of the effect on later appropriators. An early case from Colorado discussed whether an appropriator could dig a ditch across another's land without permission, an invasion of property that would clearly not be allowed under the traditional common law. Along the way it advanced a general theory of the adaptation of property law to environmental conditions:

Nature versus the common law V: Rylands in India

In previous posts in this series we looked at how courts dealt with the question of whether the common law rules of water law needed to give way to the felt necessities of different environmental conditions in two doctrinal contexts - public rights in non-tidal rivers and shifting watercourses. Next up is an examination of how "the rule in Rylands v Fletcher" fared in India.

The 1868 decision of the House of Lords in Rylands, affirming an 1866 decision of the Court of Exchequer Chamber, is one of the best-known cases in English tort law. The defendant in the case had built a water reservoir on his land to store water for powering a mill, taking all due care, but the water in the reservoir escaped through some old mineshafts and flooded the mines of his neighbor. The court ruled that if a defendant brings something dangerous on to his land and that thing escapes and causes damage to a neighbor, he is liable in tort even if he acted without fault.

Of particular relevance for this study, Lord Chancellor Cairns's ruling turned to a large extent on the issue of whether the use made by the defendant landowner was natural or not. Lord Cairns wrote that if the defendant's land had accumulated water by "natural user" of the land, and then "by the operation of the laws of nature" flowed onto his neighbor's land, there would be no liability. If, however, the defendant used his land for "a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it", liability would ensue were the water to escape and cause damage, as it did in this case.

Even before the House of Lords had issued its opinion in Rylands's appeal, the Madras Railway Company decided to try and have the rule in the case established by the Court of Exchequer Chamber imported to India. A couple of tanks (reservoirs) located near the rail line in the District of North Arcot had burst several times in 1865 and 1866, and the resulting floods had damaged embankments, bridges, and culverts belonging to the railway company. The company brought suit against the landowner for the damages (Madras Rwy Co v Salvah Makaraju, 5 Madras High Court Reports 139 (1870)), at the same time refusing to allege negligence on the part of the defendant, choosing instead to rely on the new rule of Fletcher v Rylands. It seems that the railway company was hoping from the start to appeal the case up to the Privy Council in London, hoping, as the Madras High Court put it, to take the final decision out of the hands of "Judges conversant with the necessities of the country", instead having "a rule […] imposed elsewhere by Judges not so conversant" (Madras Rwy Co v Zamnida'r of Ka'vatinaggur, 6 Madras High Court Reports 180 (1871)).

Nature versus the common law IV: Shifting watercourses

In the last posts in this series we looked at court decisions that discussed whether the ownership of rivers should follow the common law or change to reflect local environmental conditions. Another branch of water-related law dealt with the legal consequences of changes in the course of a river or a shoreline over time. The property-law questions thrown up by these changes, under the legal terms "alluvion" and "diluvion", were to whom newly formed dry land belonged – to the former owner of the dry land now submerged, or to the owner of the adjacent riverbed. The English rule, based on Roman law, was that gradual accumulations of land from water belonged to the to the owner of the land to which the new land was added, while gradual losses of land were lost to the landowner and became part of the river (Foster v Wright, 4 CPD 438 (1878)). Sudden changes in the course of a river, on the other hand, were held not to bring about changes in ownership of the bed.

One line of legal thought held that the English common law rules in this area of law applied everywhere. The English Court of Exchequer in 1839 (In re Hull and Selby Rwy, 151 English Reports 139 (Ex 1839)) opined that the common law of alluvion "is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law, for the permanent protection and adjustment of property." Similarly, seventy-five years later, the Privy Council rejected arguments that the English law did not apply to the Nigerian shoreline due to differences in the local conditions, Lord Shaw stating that the court did not doubt the "general applicability" of the English law of accretion. This, however, was the minority position.

Nature versus the common law III: Canadian and Indian rivers

Bhanutpt, Krishna River

In the previous post in this series, we looked at how nineteenth-century American courts debated whether the common law rules of riparian rights applied to the grand American rivers, seemingly so different from those of England. But the question of whether the common law applied to environments unlike England's soon arose in territories around the British Empire as well. Robert Travers has argued that while judges in England had used ideas of natural law to modify the common law, in India natural law arguments were used in some contexts to support the replacement of local law by English norms. Here, however, we see the reverse, with nature invoked to reject English rules of water law in favor of new norms, felt to be more appropriate to the local environment.

In an 1842 case (Esson v M’Master, 3 NBR 501 (1842)) the New Brunswick Supreme Court noted the "great difference in the character of the small rivers of England and those of this Province", but thought that this consideration "may be thought more fit for the Legislature than the Court ". Yet the same court in 1849 (Rowe v Titus, 6 NBR 326 (1849)) adopted the ruling of an American court, following the argument of counsel that:

The principles of the law of England, in respect to rivers, cannot be applied to this country : there the rivers are not subject to such sudden freshets, nor are they used for the same purposes as in this country ; the cases therefore on this subject in the United States, where the rivers are used for the same purposes as in this country, will be very important.

The idea that Canadian courts should follow American courts rather than English ones when dealing with rivers was not limited to New Brunswick. In an 1852 case (R v Meyers, 3 UCCP 305 (1852)), Chief Justice James Macaulay of the Upper Canada (Ontario) Court of Common Pleas, after examining the English precedents which normally would be thought binding in the British colony, demonstrated the legal power of geography over the common law by contrasting English precedents with decisions from "this side of the Atlantic", lumping together American and Canadian cases without distinguishing between them. Macaulay's judgment was also significant in ruling that the test for navigability of a river was its "natural capacity", not its use in practice, once again demonstrating the normative power of nature. The influence of American jurisprudence was evident as well in an 1882 opinion of Justice Samuel Strong of the Supreme Court of Canada :

I do not hesitate to say that the rule which appears to have been adopted as a principle of the common law as administered in England, that no rivers are to be considered in law as public and navigable above the ebb and flow of the tide, is not applicable to the great rivers of this continent, as has been determined by the Supreme Court of the United States and by the courts of most of the States […]

The right to nature in 1880s Ireland

Just out in The Historical Journal is "The Right to Life, the Right to Nature, and the Impact of Irish Land on Political Thought in the 1880s" by Andrew Phemister. The abstract:

The Irish Land War was a pivotal conflict in the history of liberal political thought. With significant impacts on both sides of the Atlantic, events in Ireland were about more than Irish self-determination. Heavily reliant on a discourse of natural right, and asserting a relationship between land ownership and democratic-republican citizenship, the Land War provided a vehicle for popular radical opposition to an increasingly positivist liberalism. This article examines the rationales and political assumptions underlying the demand for land, and how such arguments catalysed an intellectual response among liberal political thinkers. Particular moral and metaphysical ideas about the distinctiveness of land allowed agrarian and labour radicals to reassert individualized but non-possessive rights to natural resources. Rooted in a materialist politics of the human body, this purposive conception of land posed a significant threat to claims for private property, social order, and the ameliorative authority of the state, pressing both liberal and conservative thinkers away from unstable notions of individual rights. The crisis over Irish land helped to shift the terrain of political argument away from questions of participation and popular power, and toward amelioration and public welfare.

Sic utere versus salus populi

In a series of publications, most importantly her 2009 book, Chasing the Wind, Noga Morag-Levine has argued forcefully for distinguishing between continental European-style "police" regulation and common-law-style environmental regulation based on a nuisance conception. The recent issue of Law and History Review has an interesting article by Morag-Levine, "The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis", in which she finds the roots of this distinction in English law much earlier than she has previously argued. The abstract:

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

from John Speed's 'The Theatre of the Empire of Great Britaine' (1611-1612) (British Museum)

More on nature versus the common law: American judges on American rivers

As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public. 

While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.

These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.

The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :

Nature versus the common law

A little while back I published "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" in the French journal Clio@Themis. The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. As the article shows, they did so consciously, explicitly granting nature normative force. It also looks at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. 

The question of whether environmental factors required or justified a departure from the inherited rules of the common law arose in courts around British Empire and United States in connection with a variety of legal issues, four of which are examined in the article: a) the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public ; b) conflicts over property rights following shifts in the course of a river ; c) the issue of the degree of liability of reservoir owners for damage caused to others by escaping waters ; and d) conflicts over whether water might be diverted from a river for irrigation, to the detriment of downstream landowners.

Discovery of the Hudson River, Albert Bierstadt, 1874

I'll be posting some selections from the article later.

Changes in environmental law scholarship

Recently published in Journal of Environmental Law: Ole Pedersen, "The Evolution and Emergence of Environmental Law Scholarship—A Perspective from Three Journals". The abstract:

In the attempt to lay the foundations for a better understanding of environmental law scholarship, this article offers a local perspective of environmental law scholarship in the UK. Through a study of more than 1,400 articles published in three leading UK environmental law journals over the course of three decades, the article considers the ways in which environmental law scholarship has changed over time by reference to gender and geographical location of authors. The article also interrogates the ways in which the topics of scholarship have changed over time, as well as the extent to which environmental law scholars make use of empirical methods and external sources of funding for their research. Finally, the article explores the extent to which environmental law scholarship is published in generalist law journals.

There are a lot of interesting data in the article. Here, for instance, is a graph showing the changes (mainly increases) in the number of environmental law articles published in leading UK generalist law journals:

It would be interesting to see parallel date for other countries.

Nuisance law and forced labor

I recently participated in the great Legal Histories of Empire conference that met in Maynooth, Ireland. There were a number of papers on environment-related topics (especially about the oceans), but one that really stood out for me was that of Erin Braatz on nuisance law in colonial Gold Coast (Ghana). 

Braatz showed that the largest category of criminal prosecutions in the Gold Coast was for nuisance, and especially sanitary offenses, and suggested a surprising (for me, at least) explanation: the colonial government's desire for forced labor. After the abolition of slavery, colonial rulers and settlers cried out for (cheap) working hands, and sentencing locals to terms of labor for nuisance violations was one way of providing them.

I've often noted before connections labor issues and environmental regulation, but Braatz's research suggests a new (and unsettling) angle.

The Wildlife and Countryside Act 1981

The latest  issue of the English Historical Review has an article by Matthew Kelly, "Habitat Protection, Ideology and the British Nature State: The Politics of the Wildlife and Countryside Act 1981". The abstract:

The Wildlife and Countryside Act 1981 was the most important piece of environmental legislation passed by a British government since the National Parks and Access to the Countryside Act 1949. It sought to enhance the protection of listed flora and fauna, prevent further damage to existing habitat and resolve issues that had arisen with respect to rights of public access to the countryside. Although the bill was long and complex, many of its provisions sought to rationalise existing statutes or extend existing provision rather than create new powers. Provisions seeking to protect habitat proved highly contentious. The proprietary interest resented what it saw as an unjustified interference in private property rights; statutory bodies were alarmed that the centralising aspects of the Act would empower ministers at the expense of their ‘scientific’ independence; and the emergent environmental lobby, increasingly frustrated by the cautious approach of the statutory bodies, was determined that the bill’s habitat protection provisions be strengthened. This article examines the lengthy and disputatious consultation and parliamentary process in terms of longer-term frustration with the apparent weakness of statutory protections and how it brought the environmental effect of agricultural intensification into mainstream political debate. This article contextualises the growing insistence that there was a public interest in the health of the natural environment and situates the argument with respect to what environmental historians have started to analyse as the history of the ‘nature state’, a distinct realm of state activity comparable to the welfare state, warfare state or security state.

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

Digital library VIII: Manwood's Treatise of Forest Laws

It's been a while since I updated the "Digital library of historical environmental law", so here's a new addition, connecting environmental law with Magna Carta: John Manwood's Treatise of the Forest Laws (4th edition (1717) here). 

GWU Law's Legal Miscellanea explains that Manwood was a barrister, gamekeeper, and Justice in Eyre of the New Forest under Elizabeth I. His Brefe Collection of the Lawes of the Forest was printed in 1592 for private circulation and the first edition of the Treatise, printed in 1598, was entitled A Treatise and Discovrse of the Lawes of the Forrest. The 4th edition (above) was "corrected and enlarged by William Nelson," a practitioner in the Court of Chancery.

Chris Besant, in his 1991 "From forest to field: A brief history of environmental law" (16 Legal Service Bull. 160 (1991)), explains further:

Forest law operated principally to protect two resources: vert and venison. Vert was the timber of the forest, plus any grasses, ground cover or vegetation necessary to support the venison, including cover or vegetation which provided shade. Venison denoted the wild beasts of the forest (hart and hind, hare, boar and wold), chase (buck, does, fox, matron and the roo), and warren (the hare, pheasant, partridge and the cunnie). All of these beasts were privileged and protected from capture within the forest by the forest law, although outside thereof, they could be taken through capture by anyone.

*****

Magna Carta is a general reaction against the centralisation of government in derogation of the feudal principle. The King in his weakness is forced to concede that he will not 'overreach' his proper bounds as defined by the common and forest laws of the land. Thus the Charter of the Forest is a further delimitation of forest custom in the interests of liberty, and is the beginning of the great destruction of England's natural environment.

The usufructuary ethos

H-Environment recently posted a review by Jay David Miller of Erin Drew's The Usufructuary Ethos: Power, Politics, and Environment in the Long Eighteenth Century (U. Virginia Press, 2021). Some excerpts from the review:

Erin Drew summarizes the core principle of the early modern set of ideas she calls “the usufructory ethos” as follows: “What you have is ‘yours’ only in a partial and temporary sense” (p. 47). Nowhere did this principle manifest itself more clearly than in the figure of the landlord, who commanded power over tenants and by extension the land itself, but who was also, theoretically, bound by responsibilities to both subordinates and superiors. The concept of “usufruct”—which originated in Roman law but was heavily mediated through Christian theology—addressed the paradoxical nature of the landlord’s power by stipulating that the rights associated with ownership were circumscribed by far-reaching and interconnected obligations “that linked not only past, present, and future but [also] humans, nonhumans, and God, as well as the social, political, and natural worlds” (p. 2). Drew argues that recovering the history of the usufructory ethos in late seventeenth- and early eighteenth-century Britain changes the way we understand the human relationship to the environment in this era and could inform how we imagine it today.

*****

After tracing various iterations of the usufructory ethos through the writings of John Howe, Richard Allestree, Thomas Adams, Matthew Hale, and Thomas Tryon, Drew concludes chapter 1 with the more familiar John Locke. Locke’s significance to the study lies in the fact that the theory of property articulated in his Second Treatise on Government (1690) both relies on the concept of usufruct and undermines it in ways that foreshadow its gradual recession. While the Second Treatise contains usufructory provisos against waste and spoilage, Locke included these mainly as a way of protecting individual property rights, rather than stewarding resources that properly belong to God for the sake of others. Furthermore, Locke’s monetary theory, in which the fruits of labor are abstracted into capital, rendered concerns about waste and spoilage obsolete, as did his assumption that the European “discovery” of America opened up a limitless supply of land. By identifying these features of Locke’s thought, Drew illustrates how the usufructory ethos would come under increasing pressure as commerce and colonization came to define the seventeenth and eighteenth centuries. 

Modernisation in English nuisance law

I somehow missed this one from Ben Pontin: "A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’". published in Legal Studies in 2018. The abstract:

The paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.

For the uninitiated (like me), Pontin explains in the article (I've removed footnotes and added links):

The idea under consideration of a mismatch between formal law and academic exposition opens onto well-charted territory. David Sugarman made an important contribution to this with his critique of the ‘English textbook tradition’. Sugarman's thesis is that Victorian and Edwardian-era legal scholars, exemplified by Professor Frederick Pollock, wrote textbooks that emphasised the permanence of common law principles, downplaying their changeability. They did so in order to counter a negative impression of the common law as chaotic and unpredictable, and thereby unworthy of a university education. The crucial part of Sugarman's analysis for present purposes is that textbook understandings of the common law are ‘not reducible’ to the law itself. Against this, William Twining has suggested that formative legal scholars were attuned to the common law's spontaneity, and that Pollock was in fact in the vanguard of a proto-realist understanding of ‘living law’. In defence of Sugarman, I argue that Pollock and other scholars writing about nuisance overlooked the modernity of contemporary case law. 

Sir Frederick Pollock, 3rd Bt (by Lafayette)

Some foundations of modern British environmental law

The recent issue of the Journal of Environmental Law has a review by Stephen Tromans of Richard Macrory's Irresolute Clay: Shaping the Foundations of Modern Environmental Law (Hart, 2020). An excerpt:

In a series of Chapters, Macrory looks at the development of the profession of environmental law: the ‘early sparks’ of environmental law as an academic discipline; practising environmental law as a barrister; and the ‘coming of age’ of academic environmental law. Here of course, the author is on strong ground, having been at the heart of the development of environmental law as an academic discipline since its inception. He has also had some, though very limited, experience of advocacy at the environmental Bar.

Chapter 3 deals with ‘the emergence of environmental lawyers’ in the UK, covering forerunners such as Professor Jack Garner, the Lawyers’ Ecology Group founded in 1972, and the inception of the UK Environmental Law Association (UKELA) in 1986. Having been involved in that process, it is always interesting to read about it, though how interesting generally to later practitioners may be questionable. The key point made is the undoubted development of environmental law ‘as a distinct and vibrant field’—the growth of UKELA reflecting that development. Macrory concludes that ‘the notion of both environmental law and environmental lawyers seems now to be fully embedded in our legal system.’ As in other areas, the possible weakness of the analysis maybe derive from the quite narrow focus of the author’s own personal journey, which does not really provide a full account of why and how environmental law came to achieve that position. In particular, a fuller analysis might have revealed quite a complex synergy between different areas of the law and different types of lawyers.

The strength of an organisation like UKELA has always been that it has drawn together lawyers from private practice, both as barristers and solicitors, lawyers working in house with industry, increasingly—and to be welcomed—lawyers working for environmental NGOs, lawyers within central and local government and agencies, as well as academics (and as Macrory points out, also many members from non-legal professions). The teaching and research in environmental law burgeoned in the late 1980s and 1990s, with many noted academics not mentioned in Macrory’s book—for example, Brian Jones and Michael Bowman working with Professor Garner in Nottingham; the engaging David Hughes at Leicester, who wrote one of the first student texts on the topic; the late Simon Ball at Sheffield, who wrote the other, later joined as co-author by Stuart Bell; Lakshman Guruswamy at Durham; Lynda Warren at Aberystwyth; and others. However, a relatively small cadre of academic lawyers would not have sustained the subject. What was also instrumental in the development of environmental law was that it became possible for people who had studied it to go on and get a job in that field and have the opportunity of making it their career. This occurred in the early 1990s because the major solicitors’ firms, and their clients, particularly US companies, began to regard environmental law as a necessary and even desirable practice area. New legislation such as the Environmental Protection Act 1990, and new EU Directives being transposed into UK law, meant that there was a need for advice on compliance. Perhaps even more important, from a commercial perspective, was the recognition of environmental risk—particularly the risk of liability for historically contaminated land—in transactions. These included loans, with very considerable interest and concern by the mainstream banking industry in such risks. The result was rapid growth in environmental departments in established London firms and the appointment of environmental lawyers as partners to head them, in some cases being appointed from an academic background. This provided strong support for the development of environmental law and the incubation of a future community of environmental lawyers and is a strong factor in it becoming an established practice area.