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)

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...

A prize for my article

I'm happy to report that my article,  "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine", recently was awarded the best article prize by the Israel Association for Law and History. (See related posts here.) I'd like to reproduce (in translation) one point made by the  prize committee in its statement, as I think it could be useful for others' research:

Beyond the excellence of the article itself, the committee believes that Schorr's article can serve as a model for future studies of legal transplantation. The article considers not only the process of transplantation as a product of the sovereign or lawyer's will, but also the material objects through which transplantation takes place - letters, memos, newspapers, and statute books - and it shows the importance of prosaic, everyday factors for this process, such as bureaucratic practices or even the location of law libraries.

In short, material factors matter - a point that environmental history knows full well, but is often shortchanged by legal histories.

Jerusalem Water Works. Ras el Ain. Engine room (Matson, 1930s?)

Crusader riparian rights

The latest issue of Water History has an article by Tobias Hrynick, "The mills of god grind slowly: the Na’aman River milling dispute and the thirteenth-century hydraulic crisis in the Crusader States", that looks into a dispute over water rights between neighboring water mills that seems a precursor to the riparian-rights disputes that were so numerous in the nineteenth century. The abstract:

In the mid-thirteenth century, the Hospitaller and Templar military orders engaged in a long-running dispute over the supply of water to two hydraulic gristmills outside the city of Acre in the Crusader Kingdom of Jerusalem that prompted international scandal, royal and papal intervention, and mutual attempts at sabotage. This article examines this dispute in the context of a broad survey of milling operations in the Crusader States and argues that this dispute was representative of a widespread hydraulic shortfall in the Latin East by the thirteenth century, when the kingdom’s military collapse and the increased cultivation of sugar cane aggravated a pre-existing shortage of water-power in the relatively labor-poor eastern Mediterranean. The efforts of local landholders like the military orders to maintain access to hydraulic resources provide an instructive example of a pre-modern society’s efforts to accommodate an environmental crisis.

The Templar mill on the Na'aman today (photo: Liorca)

More on water by-laws in Mandate Palestine

I recently posted a piece on H-Empire, based on my article, "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine" (open access) (see also my recent post on this blog). An excerpt:

Zoltan Kluger, Dizengoff Square Circle in Tel Aviv, 1938 (National Photo Collection)

I ask two questions about the local bylaws enacted in the Mandate period (mainly in the last decade and a half of British rule, which ended in 1948) in the field of water supply and sewage (I'm working on a wider project on this history of water law in Mandate Palestine): Did the initiative for these bylaws, as well as the legal norms and language embodied in them, come from the residents of Palestine and their elected local governments or was it primarily the result pressure applied by the British rulers? And did legal influence cross communal boundaries, between Jewish and Arab local authorities, or did Arab towns tend to copy from other Arab towns, and Jewish from Jewish? The first question I conceptualize as one of "vertical" influence; the second as "horizontal".

Charging for water in Mandate Palestine

The American Journal of Legal History recently published my article, "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine". Due to space constraints of the publisher, I was not able to include in the article some sources that I think are interesting from an environmental-legal perspective. Here are two of them, both penned by engineers serving as head of the water department of the of the Jerusalem Municipality in support of the city's policy of requiring water metering (while most Palestine local authorities also allowed charging flat rates). I think they call to mind current debates about water pricing in various places around the world, explicitly raising issues of efficiency, equity, conservation, and public health:

A. In 1927 Jerusalem's Water Engineer, Andrew (Andor) Koch, was hired by the Tel Aviv Municipality to consult on its system of water supply. In his report to the Tel Aviv Municipal Council (Report on the Tel Aviv Municipal Water Supply, 25th Dec. 1927, Tel Aviv Municipal Archives file 835/04-1029B), Koch explained why he supported metering over flat charges:

I wish to mention that throughout the whole world, now the metered system, as the only correct means for charging Consumers is gaining ground.- There used to be a conception before that water is not a saleable good, but a public property, obtained from nature and therefore the selling of same per volume as any other merchandise, is not justified.- A more close study and moreover the practical results of such an assumption have clearly shown however that earlier or later the free use of water is leading to unnecessary, even expensive (especially concerning the disposal of waste water) waste on the one hand, and inevitably, to the undue exhaustion of the  available sources of supply on the other hand.

Water tower in Tel Aviv, built 1924

Enclosure in Israel and Palestine

In developments close to home, the latest issue of the New York Review of Books has a review by Raja Shehadeh of Gary Fields's Enclosure: Palestinian Landscapes in a Historical Mirror (U. California Press, 2017). Some excerpts:

Starting in the mid-nineteenth century, a series of legal developments in the Ottoman Empire—which ruled Palestine until 1917—had enabled the growth of... large land holdings. They included the promulgation of the Ottoman Land Code of 1858, which attempted to eliminate the musha system, whereby land was held in common, and required that the cultivator-turned-owner register his land with Treasury officials.

*****

The legal processes the Ottomans had begun were continued in the years after the end of their rule—first by the British military occupation of Palestine from 1917 to 1922, and then when the League of Nations granted the British a mandate over Palestine from 1922 to 1948. During both periods, the British continued to revise the land laws with a view to making the land more marketable and facilitating its sale to the Zionists. Among the British figures whose ideas provided the foundation for British land policy in Palestine was Sir Ernest Dowson, who believed that what the Palestinian fellah, or peasant, needed was “enclosure and partition of the common fields.”

In his book..., Gary Fields defines enclosure as “a practice resulting in the transfer of land from one group of people to another and the establishment of exclusionary spaces on territorial landscapes.” Dowson was intent on creating blocks of property that could be surveyed and registered with the Mandate Land Authority. Mandate authorities also sought to repeal the musha system. British officials were convinced that the enclosure of common land, which had already been implemented in England, had brought about “improvement” and “progress,” and they sought to replicate it in Palestine.

This British policy represented a victory for the Zionist movement. It made it possible for more Palestinian land to be sold to Zionist Jews. 

Masters/Doctoral/Postdoctoral fellowship: Water Law in Mandate Palestine

Please pass this on to anyone who might be interested:

This call is for a single one-year fellowship (2017-2018) for a graduate student or postdoctoral fellow wishing to work on the history of water law in Israel/Palestine or a related topic. The fellowship is part of the Israel Science Foundation-funded research project headed by Dr. David Schorr (Tel Aviv University Faculty of  Law): "Private and Public Water Rights in Mandate Palestine and Early Israel".

Eligible candidates will be one of the following:

• an applicant for an Ll.M. or Ph.D. degree TAU Law's Zvi Meitar Center for Advanced Legal Studies (candidates must apply separately to the Meitar Center for admission, and receipt of the fellowship will be contingent on acceptance to a degree program);
• a student currently studying for one of the above degrees;
• a candidate for a research degree in another university or in another faculty of TAU, wishing to spend a period as a visiting researcher at TAU Law;
• recent recipients of a doctoral degree (not from TAU) wishing to conduct post-doctoral research at TAU Law.

The fellow will receive a monthly stipend of between approximately ILS 4,500 (for masters students) and 11,000 a month, in accordance with university rules and subject to available matching funds. TAU students will also receive a tuition waiver. No funds will be provided for travel or lodging, though administrative assistance may be provided for both. The fellow may re-apply for funding in subsequent years, university rules permitting.

The fellow will be expected to be in residence in the Tel Aviv area and participate in weekly workshops and seminars at TAU.

Interested individuals should send the following documents (in English or Hebrew) to berg@post.tau.ac.il by 15 May 2017:

• cover letter describing research agenda and its relevance to Dr. Schorr's research project
• c.v.
• transcript of grades from last degree
• 2 letters of recommendation sent directly to berg@post.tau.ac.il
• writing sample

Notification of the fellowship award will be made quickly.

Please address any inquiries to berg@post.tau.ac.il.

Colorado and Israeli water law

If you'll be in the Denver area this week, you might be interested in the Colorado Water Congress Annual Convention, at which I'll be speaking twice.

Elwood Mead was an influential figure in the development
of Colorado water law in the 19th century,
and in Palestine and Israel in the 20th

This Wednesday afternoon I'll be speaking on "How Colorado Water Law Came to Israel", where I'll talk about how the legal rules and principles developed in nineteenth-century Colorado influenced policymakers around the world, why the British rulers of Mandate Palestine looked to the western U.S. for a model of water law, and Zionist attitudes to the importation of this model into Palestine and then Israel.

On Thursday evening I'll be giving the keynote presentation at the CSU Water Resources Archive "Water Tables" event, where I'll talk about my book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012).

How we got from there to here: Changing conceptions of property and the environment

Discussing my current research on water law in Mandate Palestine and the British Empire more broadly with my law school colleagues last week, I noted (and enjoyed) their surprise and amusement at discovering the gap between the way lawyers, economists, and others involved in environmental policy today think about efficient property regimes in natural resources and the way people did so a century ago.