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...

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)

The law of necessity

Ely Cathedral and the fens

A new article by John Collins in Past & Present, "The Long Parliament and the Law of Necessity in Seventeenth-Century England", highlights the importance of claims of necessity in the history of environmental law. As necessity is also one of the foundations of much of the law made around historical epidemics, the topic is particularly timely. An excerpt from the article (notes omitted):

Narratives of perpetual necessity aroused concern in the early seventeenth century. Sir Edward Coke, for example, was worried about the power that the commissioners of sewers possessed over property in the Case of the Isle of Ely of 1609. The famed jurist heard these arguments while he was chief justice of the common pleas, a position he had obtained in 1606. This case was just one of several involving the ambitious undertakers of the English fens who sought, through mechanical improvements, to obtain control over the flood waters that engulfed the low-lying regions around Ely, in order to create productive, and enclosed, farmland. Their pursuits put them squarely at odds with those who wanted to keep the fens as they were so they could continue to enjoy public rights in the marshlands, with inhabitants from surrounding regions who did not want to pay the taxes required for the building of the pumps and dykes, and sometimes with landholders who had parts of their property expropriated so that the dykes could be built.

Legal cases arose over the statutes that authorized the commissioners of sewers. As David Chan Smith has so carefully shown in his recent book on Edward Coke’s jurisprudence, conflicts arose over ‘how taxes should be assessed to pay for sewer works and whether the commissioners had the power to direct the creation of new works’. The particular background to the Ely case involved a group of projectors who, in 1605, were going to drain the fens around Ely and pay for it either through direct or indirect expropriation of lands. While the commissioners of sewers decreed the project legal, the 1607 parliament had refused to sanction it.

In a reversal of previous judgements friendly to the discretionary powers of the commissioners, Coke attempted to bind them through a restrictive definition of necessity. For Coke, the commissioners of sewers could not tax English subjects unless there was an ‘inevitable necessity’ that mandated the construction of dykes, walls or other technologies to defend the land against floodwaters. Innovation was not included in Coke’s narrative of necessity. He only allowed taxation or the expropriation of property for the repair of pre-existing dykes or walls. For Coke, it was only for the sake of a structure that defended the English countryside against inevitable danger — a danger that was not presently visible but would assuredly manifest itself in the future, as the English knew from flood patterns and ocean forces through hundreds of years of experience — that the commissioners of sewers could transform the property of English subjects to achieve the preservation of the commonwealth. If any type of actual innovation was going to be made, the houses of parliament needed to approve it.

In many ways, Coke was an exceptional figure within the English legal community, as those judges who ruled before him on the various statutes of sewers and those who read after him, most notably Robert Callis, did not agree with his restrictive understanding of necessity. For Callis, who gave a reading on Henry VIII’s statute on sewers in 1622 at Gray’s Inn, Coke’s ruling did not fully appreciate the equity embedded in the powers given to the commissioners of sewers. Because their work was of such a ‘great and urgent necessity and use for the good of the whole Commonwealth of the Realm’, the intent ‘maybe extended in exposition beyond the letter of the words’. An equitable reading of the statute allowed judges to ‘inlarge the letter of the Law in the sence of construction, because it tends so much to the advancement of the Commonwealth’. For Callis (who in all likelihood stood to gain from the drainage projects), the soul of the law allowed for new projects even while its strict wording did not. Callis’s reading, at least in 1622, was the legal victor. Stuart lawyers in general allowed a relatively wide latitude when it came to the application of the law of necessity. Utility and improvement, as well as preservation, fitted into their narrative of necessity, which in turn provided those empowered to utilize such narratives a broad remit to generate novel positive laws.

Coke, Popham, and Commissions of Sewers

Eric Ash's The Draining of the Fens: Projectors, Popular Politics, and State Building in Early Modern England (JHU Press, 2016) was recently reviewed by Bob Silvester in Environment and History (for an interview with the author see here). Famous common law judges play a big role in this story. The review reports that Ash:

Sir John Popham,
copy by George Perfect Harding, after unknown

succeeds admirably though is in fleshing out the procedures – there is a masterly commentary on the commissions of sewers – and events that have been dealt with only cursorily in the past. Lord Chief Justice Popham’s plans to dry out the Great Level, which resulted in little more than the construction of a large drain known as Popham’s Eau lying east of March in Cambridgeshire, seemed an obscure event when I worked in the Fens in the 1980s...; just what Popham sought to achieve and how it fitted into the overall sequence of drainage ventures is now much clearer through the careful analysis of archival material.

Regarding the author's statement that his "principal goal is to use the drainage projects to connect the broader political, economic, social and environmental developments of the era", Silvester writes that "there are times when fenland drainage appears to be subsumed within a broader discourse as simply an outstanding example of state-building in progress. It accounts for the lengthy digression on Lord Chief Justice Coke’s interference in fenland affairs around 1609".

For more on Commissions of Sewers and drainage law, see here.

Swamp drainage and law reform

It turns out that not all legal historians think environmental history is interesting. Today's Reviews in History has a review by Daniel Gosling of David Chan Smith's Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge University Press, 2014).

Here's what Gosling has to say about one of the chapters:

Chapter three looks in more detail at the corruption of the law in the early 17th century, and the complaints of those that were expected to use it. The text does this by examining the case-study of The Case of the Isle of Ely (1609), which saw Coke attempt to negotiate the proposed draining of the Fens, the low-land area of marsh and bog in the east of England. This was such a thorny issue because in order to drain the Fens taxes would have to be raised in the surrounding areas, and parts of the Fens would have to be enclosed to incentivise investors. Although this case-study demonstrated how contentious the common law could be amongst the wider population, and how Coke attempted to solve the problems, this chapter more than any of the others feels like an unnecessary digression from the wider argument, with too much time spent looking at the law in the Fens rather than the more pressing topic of common law reform that the rest of the book had set about to describe.

Some might have a different opinion. I would actually like to see a full-length study of the law of drainage; from what I remember from Catherine Drinker Bowen's book on Coke, commissions of sewers were a fertile source of law.