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.

Environmental law in Rome and beyond

For the Italian speakers among you (courtesy of the ESCLH blog): The Laboratory of Legal and Economic History at Università degli Studi "Magna Graecia" in Catanzaro will be holding a conference on "The environment between law and economics: a long journey from the Roman world to the contemporary age" on 3-4 December 2021. The program and links for remote participation are below and on the website Storia del diritto medievale e moderno.

Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

*****

The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Italian forest commons

As summer bakes Jerusalem and flights are indefinitely suspended, thoughts of Italy's Cadore region, discussed in Giacomo Bonan's The State in the Forest: Contested Commons in the Nineteenth Century Venetian Alps (White Horse Press, 2019), are beguiling. (Bonan wrote an excellent paper, "Confronting Hardin: Trends and Approaches to the Commons in Historiography", for a collection I edited a couple of years ago.) ARO recently published a review by Richard Hölzl of the book; some excerpts:

At the center of Bonan’s book are the Alpine valleys of the Cadore, a region in the Eastern Italian Alps to the North of Venice and bordering on Alto Adige/South Tirol and Austria. The region came under the rule of the Serenissima of Venice in the early fifteenth century and remained so until its fall in 1797. After the brief but very important period of the Napoleonic Kingdom of Italy, it was part of the Habsburg Empire from 1815 to 1866, when the Veneto was annexed to the new Kingdom of Italy. Since the thirteenth century the families of the Cadore, constituted as the Community of the Cadore, organized the local forests and their exploitation as commons under a system known as regole. Regole initially meant regular decision-making at assemblies by the heads of the households of several Cadore villages, who also appointed officers to enforce regulations of communal life. With the increasing success of Venice as a maritime and commercial power, the forests of the Cadore became of importance to the Venetian economy, as they provided timber for shipbuilding and city extension. Timber entrepreneurs of the Cadore cooperated with Venetian merchants and established a vibrant business that also dominated the income and livelihoods of the local households of the Cadore. Timber trade provided decently paid labor for members of every household and subsidized food imports to the mountain valleys, which did not support much agriculture. It also resulted in considerable population growth before and after 1800. Moreover, it furthered the stratification of local society in wealthy timber entrepreneurs, established families who claimed access to and common ownership of forests, and a class of newcomers and landless without such benefits.

The Napoleonic Age brought fundamental changes to this system – changes, which lasted the better part of the nineteenth century and had the established families of the Cadore look back nostalgically on the seemingly good old times, when the regole system was intact and the timber trade supported communities and households well. The advent of modern forestry in the Napoleonic and Austrian period meant that regional and central administrative officers were tasked with supervising the felling process as well as introducing new cutting and conservation measures. The administrative elite in Venice adopted the new scholarship on forests which emerged out of France and Germany and attempted to implement it on Venetian territory.

The Cadore, however, is an interesting exception to the general trend to abolish and privatize the forest commons in the early nineteenth century. Rather than abolishing the commons, the successive administrations tried to modernize their administration by transferring the management from the regole and villages to larger municipalities and regional forest authorities, and by using the profits from the forest commons for road building and schools, rather than supplementing food import. 

Digital library IV: Bartolus's Tractatus de fluminibus seu Tyberiadis

After beginning the digital library of historical environmental law with works from the last few hundred years, we go back in time this week to the fourteenth century and the Tractatus de fluminibus seu Tyberiadis (1355, 1576 edition (source of the images in this post) here) of the great medieval Italian jurist Bartolus of Saxoferrato.

As Bartolus explained at the beginning of the work, he was inspired to write the book while on vacation near Perugia, despite his attempts to enjoy his vacation and stay away from legal scholarship:

This river [Tiber]... circles that splendid mountain on which the city of Perugia is situated and while flowing a great distance through its district, the river itself is bordered by plains, hills and similar places. These places are also well inhabited, enhanced with many beautiful buildings and luscious orchards bearing lots of fruit. Thus, when I was resting from my lecturing and in order to relax, was travelling towards a certain villa situated near Perugia above the Tiber, I began to contemplate the bends of the Tiber, its alluvion, the islands arising in the river, the changes of the river-bed as well as a host of unanswered questions which I had come across in practice. There were also other matters, which came to mind from my own observance of the river. I began to consider in various ways what the legal position was, not believing that I would take it any further, lest not to spoil my vacation, the reason why I had come. And thus while I slept that night, I had a vision near dawn that a certain man, whose countenance I found gentle, came to me and he said the following: "Write down what you have begun to think about and since there is a need for illustration, provide mathematical diagrams: Look! I have brought you a reed pen to measure and draw circles as well as a ruler to draw lines and to construct diagrams". I told him to spare me from illustrating legal matters with geometrical diagrams, since were I to do that, there would be many more scoffers than supporters. Then, looking at me with a troubled countenance, he said: "Bartolus, I know that you have something (in you) of God, but are you indeed afraid to be ridiculed for your service? 

The political ecology of land reclamation in the Veneto

Environmental History recently published Elisabetta Novello and James C. McCann's "The Building of the Terra Firma: The Political Ecology of Land Reclamation in the Veneto from the Sixteenth through the Twenty-first Century".  The abstract:

The 1963 Vajont disaster and the devastating floods that hit the Veneto as well as other areas of Italy in 1966 brought about a significant revision of the policies on soil defense and civic protection. This was the last step in a long process of environmental management intending to build a balanced human-environmental system from the early modern period to the present. This essay explores the changing political ecology of soil and water management in the Veneto region in northern Italy. More specifically, the study traces the evolution of land reclamation works in the longue durée—in particular over the last five centuries—and the economic and social consequences of human actions on the territory. In order to fully outline the policies adopted in different historical periods, it is necessary to understand how the concept of land reclamation changed and gradually came to include drainage, hygienic, agrarian, and environmental factors, with attention paid to the specific ecologies of plains, mountains, and lagoon areas. In this long process, the changing relationships between landowners, farmers, and the state have altered human/natural interactions, with implications for land and water use.

Regional Land Reclamation Museum of Ca' Vendramin 

Water law in medieval Lombardy

"Diploma" of Frederick Barbarossa granting navigation rights to the monastery of
San Carpoforo di Como (1159)

I recently came across Acque della Lombardia Medievale, apparently the catalog for an exhibition held by the Biblioteca Ambrosiana di Milano in 2015. (If you're ever in Milan, don't miss the associated Pinacoteca Ambrosiana.) The editors, Federico Gallo and Rita Pezzola, write:

According to Roman law, one defines every permanent water-course as "publicum" whether it was navigable or not, and only rivulets and streams were considered private. During the Middle Ages and in particular in the 10th and 11th centuries, we find more and more imperial and royal diplomas giving grants and donations related to stretches of rovers: they refer to the construction of ports and mills and to fishing and navigating rights. Thus the principle, or better the custom, of considering some parts of a river as capitalized (today we would say "privatized") was established, and more and more we find that the water-course was at the disposition - more or less in their possession - of the people who owned the adjacent land. During the Dieta di Roncaglia (Piacenza) in 1158, Federico I, called Barbarossa - assisted by lawyers from the school of Bologna - redefined the legal status of rivers. Referring to Roman law, the Emperor inserted the "flumina navigabilia" in the regalie (royal prerogatives), so that the "flumen publicum" no longer referred to permanent water-courses, but only to the navigable ones.

For a similar development in 19th-century Canadian water law, see here.

Gender discrimination in the commons

Marco Casari and Maurizio Lisciandra recently posted "Gender Discrimination in Property Rights: Six Centuries of Commons Governance in the Alps". The abstract:

Starting from the Medieval period, women in the Italian Alps experienced a progressive erosion in property rights over the commons. We collected documents about the evolution of inheritance regulations on collective land issued by hundreds of villages over a period of six centuries (thirteenth-nineteenth). Based on this original dataset, we provide a long-term perspective of decentralized institutional change in which gender-biased inheritance systems emerged as a defensive measure to preserve the wealth of village insiders. This institutional change also had implications for the population growth, marriage strategies, and the protection from economic shocks.

More on early modern water law treatises

In response to my desire to hear more about the water law treatises described in Mark Weiner's video, "Water, Paper, Law", Yale Law's Rare Book Librarian Mike Widener (featured in the video) has posted information on the books featured in the video. These include a treatise by the great medieval jurist Bartolus and other works on Italian, German, and Dutch water law.

The page below is taken from a 4-volume Italian treatise on Roman water law, published originally 1670-86. Stay tuned for more on Mike's work on these interesting books.

from Francesco Maria Pecchio, Tractatus de aquaeductu (2nd ed., Ticini Regii, [1700?]-1713)
Rare Book Collection, Lillian Goldman Law Library, Yale Law School

Early modern water law treatises

Mark Weiner's Worlds of Law has a new video, Water, Paper, Law, in which some early modern treatises on water law held by Yale Law Library, especially Giuseppe Carmagnola's Trattato Delle Alluvioni (Turin, 1793) spur meditations on law, books, and water. I'd love to hear more about these works!

(courtesy Yale Law Library)