The legal environment and communal irrigation

The latest issue of the International Journal of the Commons has an article by Steven M. Smith, "Dynamics of the Legal Environment and the Development of Communal Irrigation Systems". From the Introduction (citations removed):

Archinia, Acequia System of El Rancho de las Golondrinas

Given the importance of external forces to the success of the commons, calls to integrate political ecology with the commons literature are becoming a common refrain. The combination can be approached from both directions: how do power structures shape institutions and how do institutions shape power structures? I take a historical perspective to explore both questions and their dynamic relationship. Specifically, I consider how external legal changes alter the incentives for how local users organize themselves and how those changes in local organizations alters the political coalitions, affecting subsequent legal changes.

To explore the question, I document and analyze the evolution of the legal environment and the development of communal irrigation systems, known as acequias, in current day New Mexico, US. Acequias have been held up as a case of a long-lived successful communal management regime of a natural resource . In the region of study, some acequias date back to the 16th century when Spain first colonized the area. The acequias have experienced sizeable shifts in their external legal surroundings, most rapidly and significantly during the US territorial period (1851–1912), that can be used to assess the relationship of external legislation and communal irrigation systems.

Success on the commons

Last year Environmental History published a review by Frederica Bowcutt of Mexico’s Community Forest Enterprises: Success on the Commons and the Seeds of a Good Anthropocene, by David Barton Bray (U. Arizona Press, 2020). Some excerpts:

According to Bray, Garrett Hardin justified enclosure and centralized land management based on an ahistorical understanding; shared-pool commons have always been regulated by rules to prevent overuse. They are not, as Hardin suggested, a free for all. Ownership of land with valuable forest resources incentivizes rural Mexican communities to adopt, develop, and adhere to rules designed to prevent a tragedy of the commons. Results thus far indicate that community-based management of local forest resources “can be as effective as public protected areas in conserving forest cover and biodiversity, while also generating income for local communities” (p. 246).

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.

Water as a common good

The indefatigable Patrick O'Donnell recently posted "Water as a Natural Resource, Common Good, and Commodity: A Basic Bibliography". This bibliography is one of many on topics of interest to readers of this blog, such as his bibliography on "Red and Green". 

Juergensmeyer and transatlantic commons scholarship

We've written before (here and here) on Julian Juergensmeyer as an early scholar of environmental law in the United States. The Journal of Comparative Urban Law and Policy recently published a Festschrift in his honor, including an article by Becky Jacobs, "Professor Julian Conrad Juergensmeyer's 'Impact': Scholarly, Theoretical, and Practical". Jacobs notes the influence of Juergensmeyer's "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem" (co-authored with James Wadley), published in Natural Resources Journal in 1974. 

There's a deeper "Atlantic crossings" story here, too, one which I have yet to fully explore: The 1974 article was preceded by an earlier one by Juergensmeyer, with overlapping content and a similar title, "The Common Lands Concept in American Jurisprudence", published in a 1973 issue of the Belgian Revue De l'Institut De Sociologie. The special issue on "Les Terres Communes: Eléments d'approche historique et comparative" contained a series of articles by scholars on communal property in various legal systems: Scotch, Soviet, French, Belgian, African, and American. The other authors were all European, mostly from Brussels. 

Yet the origins of the issue were actually American. As Jacques Vanderlinden explained in his introduction (see below), the idea for the collection arose among the editors of the Boston University Law Review in 1970 (presumably when Vanderlinden was visiting BU), but subsequently dropped by the next editorial board. So the project moved to Brussels and took on a more European cast; Juergensmeyer must have been picked while he was studying in Europe in the early 1970s.

The Roman public trust doctrine

I've often expressed impatience with the throwaway references to Justinian (often misconstrued as an adjective!) that are so ubiquitous in discussions of the public trust doctrine. Now comes Bruce Frier's review of Domenico Dursi's Res Communes Omnium. Dalle necessità economiche alla disciplina giuridica (Jovene, 2017) to make some order for those of us for whom Roman law is something of an enigma. Frier writes, explaining his own view (I'm omitting most citations and footnotes):

By the Late [Roman] Republic, the general idea of res communes was already well known in Roman culture. Plautus’ comic play Rudens, thought to date from c.190 B.C., features a fisherman (his occupation is important!) proclaiming that “the sea is unquestionably common to all persons” (mare quidem commune certost omnibus) in a longer speech that emphasizes fish as belonging to their captor.... [T]he concept becomes much more familiar in Latin sources from the Late Republic and Early Empire. Forms of common property are most often the air and the sea, but Cicero adds in the seashore (litus) as well. Although the familiar idea of common property was further elaborated in Early Imperial poetic or Stoic theories on the origin and development of human culture, there is no sign that these theories had any pronounced influence on the law; certainly they lead to no demonstrable legal conclusions.

By the Late Republic, a second cultural element had emerged: a widespread and often expressed disquiet about the startling proliferation of villas along the coast of central Italy and the Bay of Naples.... The architects of these villas, capitalizing on recently-discovered hydraulic concrete, often put down substructures extending beyond the shore and out into the sea — a phenomenon quite commonly referred to in legal texts, and one of particular concern to poets such as Horace who perceived the structures as morally hubristic. More exciting, however, is the discovery that not a few of the maritime villas incorporate fishponds so large that they were plainly intended to produce fresh fish not just for the villa, but for local markets.... [T]hese fishponds may well have brought the villa-owners into direct confrontation with more humble local fishers. 

Savagery, civilization, and property V: Colonial development and Neo-Malthusian conservationism

In the last post in this series we saw how Enlightenment-era stadial thought was passed on to modern commons theory through the aboriginal property rights debate among twentieth-century ecologists. Today I'll discuss what I believe two more lines of influence. (The full article is here.)

The first was by way of the work of anthropologists and scientists associated with British colonial development efforts under the aegis of colonial administrator Malcolm Hailey. Lord Hailey, after a career in the Indian Civil Service, was tapped to run the African Survey in the 1930s and the Colonial Research Committee in the 1940s, and was an advocate of multidisciplinary social science research, particularly anthropological, in the colonies.

The staff of Hailey’s African Survey seem to have created something of a nexus for stadial thought in the context of colonial development. London School of Economics anthropologist Lucy Mair’s chapter on land made heavy use of the stadial framework for considering “the evolution of the most suitable form of land tenure”:

Lucy Mair

In some areas land custom is changing rapidly under the influence of new conditions, such as the increase of the pressure of population or the spread of a market economy. These changes will eventually involve official intervention . . . ; the need must, for example, be envisaged for the definition and recording of title . . .

There is nothing peculiar to Africa in the general direction which the evolution of land custom is taking; its adjustment in response to economic changes is a natural process which would occur independently of any action taken by the administration. 

In Mair’s analysis, traditional, communal forms of African land tenure needed to progress to more private rights in order to encourage development:

All discussions on the subject agree as to the value of giving security to the occupier of land, and the further advantage of what is generally termed the individualization of tenures. It has been urged on different occasions that the extended system of rights, vested in the family or group, has proved in Africa to be an obstacle to improved agriculture.

Strikingly, Mair also reported on Hardin’s tragedy of the commons, avant la lettre, herdsman and all:

Those who have had to deal with East African conditions have added the . . . argument that there is little incentive to natives to reduce their live-stock in order to prevent the wastage of pasture and consequent erosion, since nothing done by the individual will avail unless his neighbours take corresponding action . . . 

Moreover, in a remarkable anticipation of later legal scholarship that highlighted potential “comedies of the commons” and “tragedies” of its disappearance,  she also warned of the advantages of common property in some situations: “The question of rights over grazing commonages presents its own difficulties; the partition of grazing grounds into small units would be a bar to the adoption of that rotational use of pasture which many hold to be the best preventive of erosion in East African conditions.”

Savagery, civilization, and property IV: The aboriginal property rights debate

In the last post in this series we saw how modern commons theory tracked many of the features of stadial theory. In this post I begin trying to uncover the routes by which the early modern theory reached modern thinkers on property.

The modern commons theorists discussed in the last post did not explicitly refer to the Enlightenment or Romantic thinkers whose theories may have influenced them. Yet the striking similarities between these two groups of theories, separated though they were by two centuries, seem to provide evidence of influence. It is likely that thinking in terms of civilizational stages was simply so deeply entrenched in the intellectual baggage of educated Westerners, whether through study of the classics, of Blackstone, or of Gibbon, that modern commons theorists replicated its patterns as a matter of course. Nevertheless, I suggest we can also trace more concrete lines of influence through the intertwined disciplines of anthropology and human ecology, as well as through the worlds of international development and conservationism.

Eleanor Leacock

An important branch of the field of anthropology’s research agenda was largely set in the mid-nineteenth century by stadial theory, and thereafter developed to a significant degree in dialogue with it. Anthropological works that clearly influenced modern commons thought, in particular those cited by Demsetz in his important 1967 article, were very much part of this dialogue, thereby infusing his work and that of others writing in the economic tradition with a large dose of stadial thinking.

The Victorian-era thinkers who strongly influenced anthropology in its founding era — Henry Maine, Lewis Henry Morgan, Karl Marx, and Friedrich Engels — were themselves influenced by the stadial theories of the late eighteenth century, and saw societies as evolving through modes of subsistence or production, viewed largely through the lens of property. But while Maine saw the transition from common to private property as a sign of civilization, Morgan, and, following him, Marx and Engels, saw this transition as a form of injustice and source of inequality (though perhaps a necessary one). 

Morgan, based on his knowledge of American Indians and reading of classical sources, argued that property was a key factor in the evolution of society as it progressed from a state of savagery (based on hunting) to barbarism (based on herding and farming) to one of civilization:

The idea of property was slowly formed in the human mind, remaining nascent and feeble through immense periods of time. Springing into life in savagery, it required all the experience of this period and of the subsequent period of barbarism to develop the germ, and to prepare the human brain for the acceptance of its controlling influence. Its dominance as a passion over all other passions marks the commencement of civilization. It not only led mankind to overcome the obstacles which delayed civilization, but to establish political society on the basis of territory and of property. A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of the mental history of mankind.

As twentieth century anthropology developed the tool of ethnographic fieldwork, the work of many anthropologists, particularly in North America, revolved around supporting or disproving Morgan’s evolutionary account, with one arena of contention concerning the question of whether “primitive” hunting societies had private property or not.

Savagery, civilization, and property III: The commons theorists

In the last post in this series, we looked at the way early modern "stadial theory" connected between stages of civilization and property regimes. Now let us examine some of the classics of modern commons theory, noting the fondness of theorists for stories reminiscent of various aspects of stadial theory. I wish to highlight here not simply that commons theorists of many stripes tend to connect pressure on resources to property regimes, as unanimity on this point could plausibly be explained by observations of a pervasive phenomenon. It is rather the connection of these two parameters — pressure and property — with the early modern idea of civilizational stages characterized by hunting, pastoralism, agriculture, and sometimes commerce, that I find striking. Whether seeing these stages in terms of the march of Progress or a fall from Edenic bliss, nearly all commons theorists seem to be attracted to the basic narrative of stadial theory.

Garret Hardinʼs “Tragedy of the Commons” illustrated its argument against common property with a parable of a common pasture.  While neither Hardin nor William Forster Lloyd, from whom he borrowed the story, argued that society does or should progress along stages of development, their descriptions of the common pasture echoed some elements of stadial theory: shepherds have no “property” in their pastures, a characterization consistent with stadial thinking (and clearly disproved by historical work on actual common pastures).  Such pastures are subject to overgrazing, as in the story of Abraham and Lot adduced by Dalrymple.  Moreover, Hardinʼs article echoed stadial theory at several points, such as when he writes that “the logic of the commons has been understood for a long time, perhaps since the discovery of agriculture or the invention of private property in real estate,”  or in his argument that increasing pressure on resources drives enclosure of the commons:

Perhaps the simplest summary of this analysis of man’s population problems is this: the commons, if justifiable at all, is justifiable only under conditions of low-population density. As the human population has increased, the commons has had to be abandoned in one aspect after another.

First we abandoned the commons in food gathering, enclosing farm land and restricting pastures and hunting and fishing areas.

Approximately contemporaneously with Hardin’s article, Harold Demsetz published his “Toward a Theory of Property Rights.”  Here the similarities to stadial theory were yet more prominent. Demsetz, relying on the work of anthropologists who had studied native tribes of the Canadian northeast, described societies that had moved from hunting to husbandry of fur-bearing animals (husbandry being either a sort of pastoralism or agriculture). Demsetz argued that this change in subsistence methods was accompanied by a change in property arrangements — lack of private property gave way, as a response to new, commercial demands for pelts, to defined property rights in land:

Herman Moll, inset from Beaver Map (1715)

We may safely surmise that the advent of the fur trade had two immediate consequences. First, the value of furs to the Indians was increased considerably. Second, and as a result, the scale of hunting activity rose sharply. Both consequences must have increased considerably the importance of the externalities associated with free hunting. The property right system began to change, and it changed specifically in the direction required to take account of the economic effects made important by the fur trade.

While not tracking Enlightenment stadial theory precisely, Demsetz’s account overlapped with it in several respects (not at all coincidentally, as we will see): echoes of the progression hunting-pastoralism-agriculture-commerce, an accompanying shift to increasingly defined property rights, and an explanatory mechanism based on increasing pressure on the resource.  Regarding this last point, Demsetz’s consideration of externalities was markedly similar to Adam Smith’s argument that “when flocks and herds come to be reared property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer.”

Demsetz’s work was extremely influential on property theorists in the legal academy, many of whom continue to make use of the stadial paradigm. James Krier, for instance, recently advanced a modified Demsetzian account of the evolution of property rights from hunter-gatherer societies with communal ownership to agricultural ones with individual ownership.  Demsetz’s model also had major impacts on the economic literature on the commons (e.g. Anderson & Hill's "The Evolution of Property Rights" and the literature it spawned),  as well as on the “common pool resources” literature associated with Elinor Ostrom.

Perhaps less obvious, but in some respects uncannily similar to Adam Smith’s theory, is Carol Rose’s influential classification of management strategies for common resources.

Why are California's fires worse than those in Baja California?

California's Camp Fire, November 2018

Peter Reich recently posted "What Happened to Hispanic Natural Resources Law in California?". The abstract:

Before the US annexation of California in 1848, the region’s Spanish and Mexican governments supervised a geographically-adapted legal system emphasizing communal water rights and public allocation of minerals, land, and coastal areas. While many post-takeover judges considered Hispanic legal principles, the overall trend was to reject these in favor of common law. The prior anti-developmental tradition was in most cases distorted, overridden, or procedurally blocked, and the jurisprudence replacing it facilitated resource degradation that has been only partially reversed by California’s modern environmental policy. As one example, the stark contrast between fire zone rules in Mexico’s Baja California and in US Southern California, and the resulting far more destructive conflagrations in the latter, demonstrate the advantages of the more managed, sustainable Hispanic approach.

The banality of the Tragedy?

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law on "The Tragedy at 50", which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse.

First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin". The abstract:

The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why  The Tragedy of the Commons nevertheless quickly attained its canonical status.

On the other hand, Nathaniel Wolloch has a different view, as evidenced in his "Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources":

John Stuart Mill

This article distinguishes between the precise legal and economic approach to the commons used by Hardin and many other modern commentators, and the broader post-Hardinian concept utilized in environmentally-oriented discussions and aiming to limit the use of the commons for the sake of preservation. Particularly in the latter case, it is claimed, any notion of the tragedy of the commons is distinctly a modern twentieth-century one, and was foreign to the early modern and even nineteenth-century outlooks. This was true of the early modern mercantilists, and also of classical political economists such as Adam Smith and even, surprisingly, Malthus, as well as of Jevons and his neoclassical discussion aimed at maximizing the long-term use of Britain’s coal reserves. One intellectual who did recognize the problematic possibility of leaving some tracts of land in their pristine condition to answer humanity’s need for a spiritual connection with nature was J. S. Mill, but even he regarded this as in essence almost a utopian ideal. The notion of the tragedy of the commons in its broader sense is therefore a distinctly modern one.

Banner and Wolloch come from different disciplinary backgrounds, which may affect their understanding of what exactly the "tragedy of the commons" is supposed to mean. (I, for one, am with Banner on this.)

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. 

Grotius and Kant on original community of goods and property

The latest issue of Grotiana (noted by Legal History Blog) has an article by Sylvie Loriaux, "Grotius and Kant on Original Community of Goods and Property". The abstract:

Immanuel Kant

This paper is interested in the critical potential of the idea of original common possession of the Earth. On the basis of a comparative analysis of Hugo Grotius and Immanuel Kant, it shows how different the meaning of this idea can be within a theory of property or territory. The first part is devoted to Grotius’s account of why and how the institution of property was progressively introduced. It highlights the importance this account attaches to the intention of the first distributors for a good understanding of property laws, and in particular, for an understanding of their non-application in situations of extreme necessity. The second part takes the opposite path and shows that although Kant rejects the very existence of a right of necessity, the idea that one might be liberated from a law is not completely absent from, and even plays a crucial role in, his account of property. Clarification of this role ultimately leads us back to the idea of original possession in common of the Earth.

Water rights IV: Property in water: Empirical and historical evidence

(Continuing the series on water rights:)

The empirical work of Ostrom (1990; Ostrom and Gardner, 1993) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions (Ostrom et al., 2010):

Elinor Ostrom

Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other three systems, however, have mixed records in terms of sustaining water resources, including both great successes and massive failures. Thus, the ability of a type of ownership to enhance sustainable resource management depends on a number of other factors…

Many legal and environmental historians have focused on historical transitions between property regimes in water, particularly two major developments in the Anglo-American legal world: the development of the "reasonable use" riparian regime in the early to mid-nineteenth century, and the rejection of riparian rights in favor of the system known as "prior appropriation" in the western United States in the second half of the same century.

Some historians' accounts, beginning with Walter Prescott Webb's "Great Plains Thesis" (Webb, 1931), have supported the economic view associating with aridity with private rights in water (Robert G. Dunbar (1985) 'The Adaptability of Water Law to the Aridity of the West', Journal of the West 24: 57; Percy, 2005). Yet aridity has also been associated with strict state control, as in Karl Wittfogel's (1957) hypothesis associating "hydraulic civilizations" with "oriental despotism", applied to the western American context by Donald Worster (1985).

Water rights III - Property in water: Theory

(Continuing the series on water rights:)

The question of how and why water has been governed by regimes of private, public, and common property has occupied scholars for some time, often in tandem with the normative issue of which type of property regime is best for the resource. 

Harold Demsetz

As in many other fields, economic analysis has proved to be a dominant theoretical lens for understanding the development of water rights, generating both direct insights and provoking trenchant critiques. On the level of positive theory, many have built on the framework of Harold Demsetz's (1967) theory of property rights, according to which property regimes progress from common to private property as the increasing value of the resource in question, or pressure on it, renders the advantages of its privatization greater than the administrative costs of establishing and maintaining a private-property regime. According to this theory, we should expect to see water regimes characterized by relatively open access or common property in societies and environments characterized by an abundance of water, and increasing reliance on private rights as pressure on the resource increases. An influential work in this tradition is Anderson and Hill (1975), which posits that the abandonment of a common-property regime (riparian rights) in favor of private rights (the prior appropriation doctrine) in the American West was a result of the region's aridity and consequent pressure on the resource. 

Economic analysis has also developed a normative critique of existing systems of water rights. Beginning with the work of Milliman (1956, 1959) and others, many scholars have argued that common property in water leads to waste, inefficiency, and depletion of the resource. The solution, according to this line of argument, is the creation or recognition of completely specified private property rights in water, rights that will allow the functioning of an efficient market that will move water to its most valuable uses and create incentives to avoid waste (Charles J. Meyers & Richard A. Posner (1971) Market Transfers of Water Rights: Toward an Improved Market in Water Resources. Arlington: National Water Commission; Terry L. Anderson (ed.) (1983) Water Rights: Scarce Resource Allocation, Bureaucracy, and the Environment. Cambridge: Ballinger). This sort of argument has obviously resonated with Hardin's (1968) famous article on the tragedy of the commons, and also fit in well with general enthusiasm for market solutions to policy issues in recent decades. It continues to be advanced in various contexts, such as with regard to water rights in China (Speed, 2009).

Yet other theorists have questioned the above conclusions, both positive and normative.

Water rights II - Systems of property rights in water

(Continuing the series on water rights - the first installment was here.)

Property in water takes a great variety of forms. Many countries' laws state that all water is the property of the public or the state (Trelease, 1957; Cumyn, 2007; Sun, 2009; Schorr, 2013). Most civil law countries, following Roman law, distinguish between public and private waters. The "absolute dominion" rule of the common law, still in force in some American states, treats groundwater as an unowned resource, open to capture by any overlying landowner (Dellapenna, 2013). The riparian rights system of the common law views water sources as the common property of all landowners abutting the source (Getzler, 2004). The system of prior appropriation applied in the western United States recognizes private property rights to amounts of flows of water. In Australia (Davis, 1968) and western Canada the Crown owns the water and distributes it to users through a permit system (Percy, 2005). (A useful survey of most of the world's property regimes for water, including those mentioned in this paragraph, is found in Dante A. Caponera, Principles of Water Law and Administration (2nd ed., revised & updated by Marcella Nanni, 2007).)

Though most legal systems are viewed as reflecting a view of water either as private, common, or public property, most systems in practice recognize a mix of these types of rights in water sources. For instance, often quoted (e.g. Samuel C. Wiel, "Running Water", Harvard Law Review 22: 190 (1914)) is the statement from Justinian's Institutes (1913: 2.1.1): "The following things are by natural law common to all—the air, running water, the sea, and consequently the seashore"; yet the Roman law, in every period, contained a complex mix of private, communal, and public rights in water (Caponera, 2007). Of Islamic water law it is said that "true Muslim believers cannot grab water in excess to their needs since they are obliged to allow free access to any amounts of water beyond these needs" (Al-Awar et al., 2010: 32) and that the Prophet prohibited selling of water (Caponera, 1954),  but also that "Islam supports privatization of water supply… as long as it leads to a fair and free market" (Al-Awar et al., 2010: 34). The civil law's distinction between public and private waters has often ceased to exist in practice, with state approval being required for use of private waters as well as public (Caponera, 2007). China's constitution (Art. 9) and 2002 Water Law (Art. 3) state that all water is owned by the state, but in practice a system of private rights exists (Wouters et al., 2004; Shen and Speed, 2009). In the Anglo-American world much is made of the difference between the common-property rules of the riparian system in force in England and the eastern United States, and the system of private appropriative rights in the western U.S., but both systems in fact contain a mix of features typically associated with each type of property (Smith, 2008).

If the reality of formal water rights at the level of state law is a complex mix of public, private, and common, a large body of research on water management at the local level (e.g. Maass and Anderson, 1978; Meyer, 1984; Ostrom, 1990; Rivera, 1998; Boelens, 2008) reveals an almost infinite variety of property and governance systems. In various places water is sometimes allocated in proportion to field size, in accordance with the age of the field, by family, by position on the stream, or by any other of a multitude of possible principles, often anchored in long-standing custom and close social, economic, cultural, and religious ties. Integrating these locally embedded rights into systems of state law is a complex task, one often accompanied by significant redistributions of water rights (e.g. Reich, 1994; Van Koppen, 2007; Hendriks, 2010; Hicks, 2010; Boelens and Seemann, 2014).

Next: Property in water: Theory. The full article is here.

Social justice and the historical development of water rights

Jill Robbie blogged this week at the University of Glasgow School of Law's blog, exploring connections between her work on the history of Scottish water law (see her Private Water Rights, 2015) and my own on the history of the appropriation doctrine in the western US. Jill writes:

In The Colorado Doctrine, David investigates the historical development of the prior appropriation doctrine of water rights, commonly associated with the western states of America. The traditional view of the evolution of this doctrine is that the riparian rights doctrine of the eastern states, which entitles all landowners along a river to reasonable use of the water, was unsuited to the arid climate of the west. Therefore, a “first in time, first in right” system of water rights was created under which rights are obtained through use and earlier users are preferred to those coming later. The water rights are severable from landownership and transferable. For some law and economics scholars, the evolution of the prior appropriation doctrine is explained due to the high value of water in the dry climate and the necessity of a private property regime to ensure maximum utilisation of this valuable natural resource. As a result, the history of prior appropriation is often used as evidence of the superiority of private property over a common property regime for scarce resources.

David challenges this traditional view by digging deep into archival material from the mid to late 19th century in Colorado. Using this material, he shows that the ideology prevalent in 19th century western America was stanchly set against speculation and corporate ownership. The development of prior appropriation, where water rights are restricted by actual use and made transferable was, David argues, motivated by principles of distributive justice rather than economic efficiency and wealth maximisation. Due to this finding, David argues that property regimes are often more nuanced and complicated than a strict distinction between private property and commons. He shows that the prior appropriation theory in Colorado grew from a system of public property and provided private rights to water which were transferrable in order to try and ensure as wide a distribution of rights among actual users as possible.

The findings contained in The Colorado Doctrine have interesting parallels in Scotland. The water rights regime in Scotland developed between the mid 17th and mid 18th centuries. Advocate, judge and jurist, Lord Kames was at the centre of this development and established the theory that as water is among the res communes, or communal things, it is outwith ownership and open to all humankind. Everyone has a right to appropriate a portion of water. If a landowner diverted a river, this would be depriving those downstream of their public right to appropriate the water and landowners were therefore prohibited from diverting the rivers running through their lands. This obligation on landowners was then developed by the courts into a correlative right held by landowners against any interference with the flow of a river. Landowners are allowed to take water for primary purposes, such as drinking, washing and cooking, but no other interference with the material flow is allowed. David’s argument regarding the inaccuracy of a strict divide between common and private property regimes is therefore demonstrated by the Scottish regime which derives from a system of commons but with the result that no one is entitled to use water for secondary purposes, such as agricultural or industrial purposes, unless they obtain agreement from the landowners along a river or they are in the position of having a river wholly contained within their own land.

The Pope, the Archbishop, and the Poet

(A little off the beaten path for this blog, but--despite the title--not a joke.
Thanks to Bruce Huber, John Langbein, and Shai Wozner for introducing me to the sources in this post.)

I. The Pope

Last year I was fortunate to be invited by Bruce Huber to participate in a great little conference on Pope Francis's encyclical on the environment, Laudato Si'. The conference and reading the encyclical got me thinking about the relationship between law, religion, and urgent matters of policy (such as the environment and social justice), with some help from a classic source in English legal history courses (see below). More specifically, it got me thinking about the relative absence of law in contemporary discussions of religion and the environment, exemplified by Laudato Si'.

Reading the document with legal eyes, one thing that caught my attention was the essentially legal argument that the Pope makes about the responsibility of privileged classes and nations towards those less fortunate. Put simply, Francis argues that the earth's resources are the common property of humankind, and that disproportional exploitation by some creates a debt towards those who have benefited less from the common property:

Whether believers or not, we are agreed today that the earth is essentially a shared inheritance, whose fruits are meant to benefit everyone. For believers, this becomes a question of fidelity to the Creator, since God created the world for everyone. (93)

The natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others. (95) 

The climate is a common good, belonging to all and meant for all. (23)

Forests and revolution in Mexico

After recent discussions of forests and revolution in France, we now turn to a similar topic in Mexico. H-LatAm recently posted Timothy Lorek's review of Christopher Boyer's Political Landscapes: Forests, Conservation, and Community in Mexico (Duke UP, 2015). Some highlights:

Boyer begins in the 1880s and follows the thirty-year reign of Porfirio Díaz and his embrace of foreign capital investment and scientific expertise, exercised by the regime’s cadre of científicos. The rapid acceleration of land titling (the so-called disentailment of communally owned property) and privatization of terrenos baldíos (unoccupied public land) and resources spurred the growth of commercial logging to meet the demands of the expanding newsprint industry and railroads. Observing the growing corporate commodification of timber resources, Boyer shows how members of the intellectual elite organized for conservation of the woodlands through a “regime of scientific management,” premised on similar initiatives in Europe and the United States (p. 30). Chief among these early conservationists was Miguel Ángel de Quevedo, whose long career in public policy withstood political transitions and revolution. Quevedo and the early forest service viewed conservation as a scientific and rational practice best orchestrated by urban Mexico City elites rather than the inhabitants of the woodlands themselves. What little consideration his urban foresters did give to rural peoples such as the Rarámuri of Chihuahua or the Purépecha of Michoacán, Boyer argues, was to criticize them as backwards, wasteful, and an impediment to rational management.

Chapters 2 and 3 chart the rise of “revolutionary forestry.” A rich historiography exists on the Mexican Revolution (1910-17) and on the subsequent agrarian reform which continued until 1992. Article 27 of the constitution of 1917 cleared a path for two legal channels for securing land rights: the restitution of communal land (restauración) or the granting of parcels (ejidos) of public land for usufruct use (dotación). And yet, Boyer points out, few scholars have noted Article 27’s significance in mandating the state’s right to manage natural resources on behalf of the nation. This charge led to the postrevolutionary state’s partnership with Miguel Ángel de Quevedo and his determined application of rational conservation in forestry. Yet Quevedo and other conservationists’ preferences for a state-regulated management bureaucracy complicated indigenous land rights supposedly protected under the postrevolutionary state’s social agenda. For example, the Forest Code of 1926 required ejido and native communities to form producers' cooperatives whose timber harvests were guided by scientific management plans approved by the new forest service. Other elements of the code, such as the ban on hatchets for felling, had the arguably unintentional effect of restricting native access to cutting timber in favor of commercial operations. As Boyer shows, the new bureaucratic hurdles presented challenges for ejidatarios and native villagers in Chihuahua and Michoacán, who struggled to assert their rights over unscrupulous outsiders and, when that failed, resorted to clandestine logging and the black market. 

The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

Update: the published papers from this conference are available here

A call for papers for a conference and journal issue I'm organizing, with the help of my distinguished teacher, Carol Rose. Please pass it on!

Conference and Special Issue:
The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

On the occasion of the 50^th anniversary of the publication of
Garrett Hardin's "Tragedy of the Commons"

Cegla Center for Interdisciplinary Research of the Law

with the support of

David Berg Foundation Institute for Law and History

GlobalTrust: Sovereigns as Trustees of Humanity

S. Horowitz Institute for Intellectual Property

Buchmann Faculty of Law

Tel Aviv University

June 28-30, 2017

Call for Papers – due 1 March 2016

            Few modern publications—or indeed ideas—have been as influential for the development of law, political science, economics, or environmental studies as Garrett Hardin's "Tragedy of the Commons", his blockbuster 1968 article in Science magazine. The notion of ownerless resources being inexorably and inevitably subject to overuse and degradation, illustrated through a parable of a common pasture consciously grazed to oblivion by herdsmen, proved to be a gripping one. It has seemed to explain or justify problems and solutions from areas such as population control, ownership of and sovereignty over natural resources, pollution, and cultural and technological innovation, and it has remained a dominant trope in many fields in and outside law since its publication. Of course Hardin's idea has not gone unchallenged, and recent decades have seen a wealth of scholarship dedicated to refuting or modifying the "Tragedy" thesis and identifying or advocating countervailing and related effects.

            Like all ideas, the idea of the "Tragedy" has a history and a context, the exploration of which is the object of this conference. Precedents in economic writing of the 1950s have been pointed out, and Hardin's article itself acknowledged his debt to a nineteenth-century "mathematical amateur". The aim of this conference and special issue is to go beyond these immediate and explicit intellectual sources and explore three themes in the history of the idea of the tragedy of the commons (the functioning of actual commons in history remains outside this conference's scope):

1. The idea of the commons in history: The idea of "the commons", whether communally owned or accessible to all, is one that lawyers, economists, political theorists, and others have written about for centuries. Some, like Hardin, were alarmed by it; other valorized it; yet others saw it in a more complex light. We aim to excavate new layers of the intellectual antecedents of Hardin and his opponents, within the Western tradition as well as outside it, and understand the historical contexts in which these earlier ideas and texts were produced.
2. Hardin's world: Not only did Hardin not write in an intellectual vacuum; "Tragedy" was written in a specific time and place, and in a certain political, ideological, cultural, and social environment. We seek to illuminate the contexts that might explain the particular circumstances in which "The Tragedy of the Commons" was written, published, and popularized.
3. The Tragedy's career: Half a century after the publication of Hardin's article, its reception, revision, and rejection already have histories. We wish to understand better the enthusiasm with which the idea of the Tragedy has been embraced, as well as the intellectual, ideological, and political sources and attractions of alternative approaches, most prominently that of Elinor Ostrom's school of commons studies. 

One-page proposals addressing any aspect of the above themes are welcome. Accepted articles will be published, after peer review, in a special issue of Theoretical Inquiries in Law, the TAU Cegla Center's prestigious journal.

Accommodations in Tel Aviv will be provided by TAU, and participants will have their reasonable travel expenses reimbursed.

Timing:

• One-page abstracts accompanied by a brief c.v. should be sent to cegla@post.tau.ac.il by 1 March 2016.
• Notices of acceptance will be sent by 1 April 2016.
• In order to allow pre-circulation and preparation of comments, draft articles will be due by the end of May 2017.
• The conference will take place in Tel Aviv June 28-30, 2017.
• Final drafts will be due by the end of August 2017.
• After peer review and editing, the special issue of Theoretical Inquiries in Law will be published in July 2018.

Nahalal collective village, Israel (c. 1930?)