Nuisance, planning and the common law in Bombay

Continuing themes from recent posts on British India and on nuisance: Sukriti Issar recently published "Nuisance, Planning and the Common Law in Late Eighteenth-Century Bombay" in The Journal of Legal History. The abstract:

The literature on the legal transfer of English property law to colonial South Asia has long focused on the agrarian context. Urban property and the built environment remain understudied. This article explores how the common law of nuisance found its way into the workings of a Committee of Buildings in late eighteenth-century Bombay. An analysis of the internal files of the Committee of Buildings shows that the Committee focused on public and private nuisance mitigation. Residents filed private party nuisance complaints, taking up nuisance law in their own disputes with neighbours. The Committee’s attempts to deal with public nuisances highlights the resistance of local residents. The conclusion considers the broader question of how we can conceptualize the actors, vectors and mechanisms involved in legal transfer, and its reception. Alternative explanations such as influences from pre-English colonial regimes, the impact of local custom, and the balance between common law and statute are evaluated. Rather than a seamless legal transfer, nuisance in early colonial Bombay demonstrates dialogue, resistance and appropriation.

Plan of Bombay about 1760, from James Douglas,
Bombay and Western India. A series of stray papers (1893)

Privatizing water and fish in colonial India

Devika Shankar's article on property in water and fish in India is now also a blog post at Past & Present. Shankar explains that her article reflects 

a close analysis of over 10 important and highly cited cases from different parts of British India in which judges deliberated on whether flowing water and fish could be treated as private property. Starting with a significant set of cases relating to the planting of stakes in the sea off the coast of Bombay, the article then primarily looks at cases involving rights over rivers in the fluid landscape of the Bengal delta. The article not only highlights the enduring confusion surrounding the status of water in colonial Indian law, but also looks at the different ways in which judges interpreted roman law and precedents from English common law while reaching their judgments. After reaching a variety of conclusions, by the 1880s high courts had begun to simultaneously make room for unprecedented private rights over flowing waters in colonial India while rendering these rights largely redundant by insisting that fish in these waters could not be counted as property until they were caught. The conflicting pull of these judgments however began to create serious problems in Bengal where fishing rights were considered to be especially valuable. It was in order to overcome this impasse that the Bengal government ultimately passed the Bengal Private Fisheries Protection Act in 1889 granting landholders significant rights over fish in rivers across the province. It would do so by significantly strengthening the kinds of private rights that could be claimed over water, and inaugurating a novel category of “private waters” in tidal waters in Bengal and other parts of India. By tracing the arguments and logics that ultimately paved the way for this act, this article highlights the importance of recognizing colonial India, and especially Bengal as an significant site for experimentation with new forms of private property rights over flowing waters.

Charley Brown, Illustrated Guide to the South Indian Railway (1913)

More on property in water and fish in colonial India here.

Not so fast: Nature versus the Common Law concludes

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

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

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

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

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

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

Happy spring holidays!

Nature versus the common law IV: Shifting watercourses

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

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

Nature versus the common law

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

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

Discovery of the Hudson River, Albert Bierstadt, 1874

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

Nuisance law and forced labor

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

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

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

Water, fish and property in colonial India

Last week I enjoyed attending on online event of the Asian Legal History Seminar, at which Devika Shankar presented her article, "Water, Fish and Property in Colonial India, 1860–1890", recently published in Past & Present. I recently covered similar issues in my article, "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World", published last summer in Clio@Themis, though I totally missed the cases discussed by Shankar, and she comes at the topic from a wholly different angle.

The abstract of Shankar's article:

Almost exactly a hundred years after the Permanent Settlement of 1793 revolutionized property relations in Bengal, a far less studied legislation would subtly extend the rule of property to include the province’s waters. Bengal’s Private Fisheries Protection Act 1889, which is usually regarded as having been motivated by conservationist or economic concerns, was in fact an attempt to resolve intractable legal problems surrounding the status of flowing waters and fish that had confounded judges and colonial officials in India for decades. Could water be owned like land? And could fish swimming in open waters be claimed as property? These questions would give rise to a number of important disputes in colonial India in the late nineteenth century, during a time associated with unprecedented changes in the agrarian economy. Coinciding with other legal manoeuvres that increasingly helped to render water as property in other parts of the world, the Private Fisheries Protection Act and important judgments that preceded it helped to create exceptional private rights over flowing waters in colonial India. Turning to these developments, this article examines the ways in which judges attempted to resolve contradictions generated by water’s very materiality in an economy that rested so heavily on property.

Devika Shankar, A line of fishing stakes on the Malabar coast, July 2018

Soviet water law

"And Defeat Drought", by Viktor Govorkov (1949)

Both Central Asian and Soviet water law are underexplored in the English-language literature, so I was excited when a friend recently pointed me to an article by Beatrice Penati in the Journal of the Economic and Social History of the Orient, "Continuities and Novelties in Early Soviet Law-Making about Central Asian Water". The article uncovers not only generally unknown histories of water law, but new jurisprudential angles as well. Instead of the abstract, here's an excerpt from the introduction (notes omitted):

The present essay explores the definition of the water rights and water-related obligations of the peasants vis-à-vis the Soviet State. On one level, this study highlights the very high degree of continuity in both personnel and goals between pre- and post-revolutionary “lawfare” in the field of Central Asian water rights and water usage. It also shows how, although Bolshevism offered a solid ideological justification for the supremacy of State rights, it was not easy for this personnel to codify the State-centric approach to water governance in the new Soviet context. As the reader will discover, this is more the story of attempts to regulate, than of effective regulation.

The close observation of these attempts reveals how, in the field of water rights, one could find examples of two opposing situations: a stratification of formal regulations none of which was considered as ultimately binding, and texts that bound even in the absence of a formal sanction. This begs a few further reflections: first, one can ask whether this disorder was deliberately used as a tool of Soviet power, as argued recently by Christian Teichmann, also writing about Soviet irrigation in Central Asia. Second, one must reconsider what made a law in the light of socialist legal theory, thereby nuancing the notion that socio-economic change (here, in the field of water rights) originated from State decisions.

By analysing systematically what inspired and stymied these attempts at the regulation of water, this essay contends that early Soviet “lawfare” about Central Asian water—especially efforts at systematic codification premised on the supremacy of State rights—was constrained by two factors. The first, in continuity with the colonial period, was the persistent idea that indigenous water systems were ultimately impenetrable to outside observers: due to their supposed “irrationality” and “primitiveness”, these systems had been (and still were) regarded as both economically inefficient and impossible to reform, to the point that concessions to “custom” had to be made even after the consolidation of Soviet rule. The second, new factor was the early Soviet de-colonisation imperative, understood here (following Georgii Safarov) as both liberation from the relics of settler colonialism and from those “exploitative elements” which Russian imperialism had supposedly nurtured. This ideological option marked a profound discontinuity with the Tsarist regime in Central Asia, by defining the perimeter of the experts’ legislative initiative. That this factor was ultimately decisive is shown, by contrast, by the fact that socio-economic realities in the field of water and land rights were reshaped more by revolutionary initiatives, than by systematic efforts to change water laws. Despite (or because of) the proliferation of texts, drafts, and commissions, effective transformation did not require more (or more careful) law-writing, but for the Soviets and Party to invest other power resources (e.g. propaganda, coercion, financial means) to achieve a degree of social mobilisation in favour of radical reforms.

For earlier Imperial Russian water law in Central Asia, see here. 

Mongolian hunting regulations

The Qianlong Emperor Hunting Hare, by Giuseppe Castiglione (1755)

Last year Inner Asia published Khohchahar Chulu's "The Formation and Regulations of the Military Hunt in Qing Mongolia". (Thanks to Mitra Shirafi at Legal History Blog for noting it.) The abstract:

In the Mongolian tradition, hunting and war have had strong connections with each other. During the Qing Empire, Mongolian hunts were not only local practices, but were also involved in the Qing empire-building project. On the other hand, the collective hunt itself was by nature a dangerous activity that contained potential physical risks from wild animal attacks as well as human errors. It is conventionally understood that the hunt therefore must have been well organised in order to secure success and security. But how a hunt was organised and operated in reality has not yet been well examined. This study explores the organisational structure and regulations of a military hunt in Qing Inner Mongolia, a geographically important zone where both the Manchus and Mongols actively held hunts. The primary focus of this article is the nineteenth-century Alasha Banner grand hunt, a well-organised and documented Mongolian military hunt from the Qing period.

The Million-Dollar Duck

The American Historical Review recently published Miranda Johnson's "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract". The abstract:

In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Dene men gathered for Treaty Day at Fort Resolution, ca. 1924

Call for applications: Masters/Doctoral/Postdoctoral fellowship -- Water Law in Mandate Palestine

This call is for a one-year or semester-long fellowship for a graduate student wishing to work on the history of water law in Israel/Palestine or a related topic (such as the history of water law in a related jurisdiction, the history of related areas of law in Israel/Palestine, legal transfers in the British Empire, etc.). The fellowship is part of my Israel Science Foundation-funded research project: "Private and Public Water Rights in Mandate Palestine and Early Israel". 

TAU Law and its Berg Institute for Law and History are vibrant and collegial centers of legal history where candidates can expect interactions with a variety of interesting scholars in the field, and access to a wide range of historical and legal databases is available.

Eligible candidates will be one of the following:

• a recent recipient of a doctoral degree in a relevant field wishing to spend a year of postdoctoral research at TAU Law;

• 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;

• a candidate for an LLM or PhD degree TAU Law's Zvi Meitar Center for Advanced Legal Studies;

• an applicant for an LLM or PhD at the Meitar Center (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 cover letter describing a research agenda and its relevance to the topic of the history of water law in Israel/Palestine

• c.v.

• transcript of grades from last degree

• 2 letters of recommendation sent directly to berg@tauex.tau.ac.il

• writing sample

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, and also some funding for travel to conferences. TAU students will also receive a tuition waiver. The fellow may re-apply for funding in subsequent years, university rules permitting.

The fellow will be expected to participate in weekly workshops and seminars at TAU, and in general be in residence at TAU.

Interested individuals should send the following documents (in English or Hebrew) to berg@tauex.tau.ac.il by 15 Feb 2019:

Notification of the fellowship award will be made quickly.

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

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.”

Running water for the officials, rainwater for the poor

Venetian aqueduct in Crete

The latest issue of Water History has an article by Yannis Spyropoulos, "Running water for the officials, rainwater for the poor: symbolic use and control of water in early modern Ottoman Crete". The abstract:

This paper deals with the issue of water management on the island of Crete from the beginning of the Ottoman–Venetian war in 1645 to the beginning of its Egyptian administration in 1830. Based primarily on information given by Kandiye’s (mod. Herakleion) Shariah court records, but also on a variety of published and unpublished archival material from Turkey, Greece, and France, it explores the socioeconomic aspects of water-resource exploitation in the island’s urban centers, analyzes the involvement of various local and imperial actors in water management, and locates the struggles created in the above-mentioned processes. Through a detailed analysis of the challenges faced by the administration and the population of an insular area with limited water resources, such as Crete, the article tries to take a fresh look at water management on the Ottoman periphery: It redirects the researchers’ focus from heavily-populated cities and large cultivated plains to the examination of smaller regions with no major hydraulic and irrigation networks and puts emphasis on the symbolic use of water in the socioeconomic context of the Ottoman Empire.

And from the conclusion:

I would like to underline the importance of running water in early modern Ottoman Crete as a symbol of financial and administrative power. In Islamic Law, water was considered to be a public good reserved for everyone, regardless of class and officialdom. Yet, in an insular space with limited water resources, such as Crete, Islamic canonical treatment of water was often overruled in favor of those with access to wealth and power. In this context, the ownership of running water became a status indicator for the island’s elites and a field of competition and negotiation between various officials. In early Ottoman Crete, it was mainly the sancakbeyis and other non-Cretan officials who undertook the task of finding and channeling running water to the island’s three cities, yet, through time, as local elites started rising to power, mainly through their connection with the military, the management of water resources gradually passed into the hands of both imperial and local actors. Their origins notwithstanding, the tactic used by all these elites was similar: They claimed the water of all the springs discovered in the vicinities of their cities by creating infrastructure connecting the former to the latter. After ensuring the appropriation of a large amount of water resources for their own establishments, they provided the rest of the water for public use –mainly through private endowments—thus presenting themselves as benefactors in the eyes of the local populace. The latter’s restricted access to running water, on the other hand, not only made them turn to rainwater in order to quench their thirst, but it also seems to have been one of the most probable causes of the frequent sabotage of the water-supply networks of Crete, a reasonable reaction if seen in the light of the following Koranic verse: “And We send the fecundating winds, then cause the rain to descend from the sky, therewith provide you with water (in abundance), though ye are not the guardians of its stores”.

Moving watersheds, borderless maps, and imperial geography

The Historical Journal recently published Kyle Gardner's "Moving Watersheds, Borderless Maps, and Imperial Geography in India's Northwestern Himalaya". The abstract:

This article uses the British colonial history of border making in northern India to examine the assumptions and contradictions at work in the theorizing, configuring, and mapping of frontiers and borders. It focuses, in particular, on the development of the ‘water-parting principle’ – wherein the edge of a watershed is considered to be the border – and how this principle was used to determine boundaries in the northwestern Himalaya, a region that had long-established notions of border points, but no borderlines. By the twentieth century, the water-parting principle would become the dominant boundary logic for demarcating borders in mountainous regions, and would be employed by statesmen, treaty editors, and boundary commissioners around the world. But for the northwestern Himalaya, a region that British colonial officials considered to be the ‘finest natural combination of boundary and barrier that exists in the world’, making a border proved much more difficult than anticipated.

Irrigation systems: Moors v British

Erum Sattar recently posted "From the Moors to the New World: Lessons from Dynamic Water Sharing for a Colonial-Era System in the Indus". The abstract:

This project is a close study of the legal and political aspects of management of water resources in semi-arid environments. The British in India laid the foundations of the modern irrigation system in what is now India and Pakistan. In semi-arid environments, the bulk of agriculture relies on irrigation, as it did in Spain under the Moors. We can observe a stark divide in the use of laws and institutions to manage natural resources in different societies, at different times and places. Some societies have managed in a way that achieved prosperity and long-term sustainability. Others have mismanaged so as to create ecological devastation and social stagnation. The Moors of Spain created a vibrant civilization in the Middle Ages that lasted nearly eight hundred years. One of the reasons for the dynamism of their civilization was their judicious management of water resources on which foundation they created a thriving agricultural economy that produced the economic surplus for their vibrant urban culture. Of particular interest for my project is what I regard as the essence of Moorish water management: its management of scarcity by borrowing principles from the great cradles of civilization, Mesopotamia and the Nile, which built abundance in harsh environments, along with principles of use, reuse and justice as conceived of in the Quran. These sets of principles, I shall argue, yielded a society that wasted no drop of its precious waters and adopted and innovated to create new technologies, infrastructure, norms and institutions. The British in India meanwhile laid the foundations of water-sharing in a way that to this day reifies rural hierarchy and leads to social and economic stagnation while devastating the environment. In this project of comparison, I draw relevant lessons from Moorish water systems for today's management of water resources across countries.

Irrigation channel in Spain

Property and water in Sasanian and early Islamic Iraq

Last August's Environment and History had an article by Michele Campopiano, "Cooperation and Private Enterprise in Water Management in Iraq: Continuity and Change between the Sasanian and Early Islamic Periods (Sixth to Tenth Centuries)". The article has a lot on the property system of the Sasanians and its relationship to water management. The abstract:

This article shows that the management of water resources in Late Sasanian and Early Islamic Iraq (sixth to tenth centuries ad) implied the participation of local communities and the mutual cooperation of landholders. The organisation of water management in the Late Sasanian Period (sixth to seventh centuries) depended on a highly complex system of interaction between local communities, aristocratic rulers and the imperial bureaucracy. This interaction allowed the government to gather information from different regions of the empire and to understand the needs of the different stakeholders. As such, the system provided a favourable institutional framework for the expansion of irrigated agriculture. The system changed when landholding conditions were transformed in the Early Islamic period, during the ninth century. These institutional transformations allowed the influence of a group of tax-farmers and merchant-bankers to increase. Irrigation policies were therefore bent to the interests of these new elites, which often lay in short-term gains rather than in long-term success. The article suggests that, in the long run, these socio-economic and institutional changes contributed substantially to the breakdown of the agricultural system in Ancient Iraq.

The dry bed of the Nahrawan Canal near Samarra, photographed by Gertrude Bell in 1909

Historical analysis in environmental law VI: What is at stake

In the last couple of posts in this series I suggested several directions of inquiry for uncovering the history of environmental law. In this final post in the series, I would like to tentatively offer some thoughts on why the historical exploration of environmental law matters.

First of all, history can help us better understand current environmental law. For instance, David Driesen has recently advanced a positive theory of environmental law, attempting to explain its salient features, such as reliance on certain types of standards. Notably missing from his account are historical explanations for these aspects of environmental law, explanations which might be provided by works such as those of Morag-Levine.  Or take the argument of 'free market environmentalists' that private law would do a better job of protecting the environment than modern regulation; this type of argument could be checked against the historical experience of legal systems that have relied on private law for this purpose.

AC Pigou

Second, the history of environmental law is a topic that offers an opportunity to bridge the material and the abstract, or to take up environmental historian Linda Nash's challenge 'to show how what is presumed to be social or cultural is thoroughly intertwined with the natural.' Such an endeavour would be beneficial to both environmental history and legal history, as legal doctrines, institutions, and ideologies—social and cultural artifacts—developed with regard to the natural, may circulate beyond the narrow confines of environmental law to other legal contexts. One thinks, for instance, of Pigouvian taxes, cost-benefit analyses, and feasibility standards, all developed 'intertwined with the natural' but spreading their branches far afield.

Environmentalists often portray themselves as acting in the name of an apolitical public interest.

Inter-imperial riparian law VI: Miner as an inter-imperial legal authority and Conclusion

On Friday we discussed the place of French and American law in Privy Council water decisions, leading up to the seminal 1858 case of Miner v. Gilmour. Today we'll look at how Miner became an inter-imperial authority, as Lord Kingsdown's summary of the relative rights of riparian owners was cited widely throughout the British Empire and beyond (for examples of the case's influence, see the article on which this series is based).

Though arising in a case in which the applicable law was the old French law of Canada East, on the imperial periphery, it was taken as a faithful exposition of the common law of England, the imperial metropolis. In the 1876 case of Lyon v. Fishmongers’ Company, for instance, dealing with the right of access of riparian owners to the River Thames, the House of Lords (at the time the highest court for cases arising in Britain itself) referred to it as one of ‘the best authorities’ on riparian doctrine.

"a lord of appeal" [Colin Blackburn].
(Spy, Vanity Fair, 19 Nov. 1881)

Perhaps the most interesting reliance on Miner (for our purposes) in the water jurisprudence of the British Empire came in two decisions authored by the British judge Colin Blackburn. In the House of Lords case of Orr Ewing v. Colquhoun (1877), Blackburn rejected the rule of Scottish law applied by the Scottish court below, arguing (inter alia), "If such be the law of Scotland it is different from what Lord Kingsdown, in [Miner v. Gilmour], states to be the law of England and France". Lord Blackburn, it seems, was ready to modify the law of the metropolis (albeit of Scotland, a jurisdiction of secondary importance, and one in which the civil law, not the common law, applied), bending it to conform to the law as laid down in Miner, a case governed by the law of a foreign empire.

A few years later came Commissioners of French Hoek v. Hugo, an appeal to the Privy Council of a judgment of the supreme court of the Cape Colony, in today’s South Africa.  Governing the dispute over the waters of two small watercourses was what is known as Roman-Dutch law. This was the law in force in the Cape Colony when it was ceded by the Dutch to the British at the end of the Napoleonic wars (the metropolitan Netherlands had by this point adopted the Napoleonic Code for use in the home country), and, as the colony had been conquered from another state, not “settled”, this was the law that remained in force under British rule. Like the pre-Revolutionary French law in force in Quebec, Roman-Dutch law was based largely on the writings of learned ‘civilian’ jurists writing in the Roman law tradition. Indeed, in addition to Cape Colony cases and Roman-Dutch sources, lawyers for the appellants cited French treatises in support of their argument.

Writing for the Privy Council in French Hoek, Lord Blackburn referred approvingly to the summary of the law of riparian rights in Miner v. Gilmour, seeming to attach some importance to the similar positions of the Roman-influenced civil law in Canada East and the Cape Colony:

Inter-imperial riparian law IV: The attraction of American law

Yesterday I discussed the extensive use water law judicial decisions in the courts of Lower Canada, with its pre-revolutionary French property law, made of American sources. Today I discuss why they may have looked to a jurisdiction that had never belonged to the old empire from which the local law derived, and no longer belonged to the new empire of which Canada was now a part.

 Hon. Justice T.C. Aylwin (Library and Archives Canada)

In his dissent in the 1859 case of Boswell v. Denis Judge Aylwin indicated one reason why Canadians may have preferred American law over French in some cases. According to French law, a ‘navigable and floatable’ river was a public one, in which the public enjoyed rights that could not be impaired by the riparian owners. As the river in question in Boswell, the Jacques-Cartier, contained rapids and was therefore not ‘navigable’ by boat traffic, the majority of the court straightforwardly applied the French test and ruled that it could not be considered a public river. Aylwin objected to this analysis: ‘Our rivers cannot be compared with those of France or Europe; the Jacques Cartier is a good sized river and has plenty of water,—it has rapids it is true, but […] I believe the river to be both navigable and flottable.’ Following a tradition going back to Montesquieu and further, Aylwin argued that French law could not apply unmodified in North America, as it was developed for a different set of environmental circumstances. Similarly, in a 1905 case Justice Trenholme of the Quebec King’s Bench noted that American authorities on the question of navigability ‘possess more than ordinary interest for Canadian Courts, as the conditions there were and are precisely like those in our country’.

Yet it seems this was not the only reason for Canadians’ turn to American water law. Returning to Brown v. Gugy, it is significant that the American case which Judge Aylwin preferred over the lower court’s ruling was from Louisiana, the only American state which based its legal system on (French) civil law. Moreover, Kent’s discussion of water law (like his discussions of many other subjects) was replete with references to civilian sources. In the pages quoted in Aylwin’s opinion (sections 6 and 7 of Kent’s Lecture 52), the American jurist cited a large number of American and English cases, as was appropriate for a work purporting to be a commentary on American law, but his very first citations were to civilian sources: Justinian’s Digest, Pothier’s Traité du Contrat de Société and Toullier’s Droit Civil Français. Later in the section, he cited again to Pothier, quoted with approval a maxim of Roman law and stated that the Code Napoléon established the same rule as said maxim.

Later commentators have divided as to what extent Kent’s use of civilian sources was substantial or rather mere window dressing, with Alan Watson arguing that Kent’s use of the Roman and French sources in the section cited above was riddled with errors and that it provided little support to his exposition of riparian rights.  Nonetheless it seems that Judge Aylwin saw Kent as a good civilian source, prefacing his long quote from the Commentaries thus:

Inter-imperial riparian law II: The Law in Miner v. Gilmour

Continuing where yesterday's post left off:

As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule.

The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in France itself after the adoption of the Napoleonic Code in 1804, but preserved in British colonies that had been conquered from the French. Indeed, the lawyers arguing the case before the British court in Westminster cited the civilian Digest of Justinian, the great French scholar Pothier and said Custom of Paris.

Sitting of a Judicial Committee of the Privy Council
(Illustrated London News, vol. 8, no. 206, 11 April, 1846, p. 1)

The encounter between French and English law did not end with this infusion of French imperial law into a British imperial courtroom, nor with its application by British judges at the seat of imperial power. Despite the lack of formal authority for English common law in the civil-law jurisdiction of Canada East, the lawyers for Miner and Gilmour before the Privy Council cited not only the civilian sources mentioned above, but also recent English case law on the subject of riparian rights. The judges of the Judicial Committee were impressed with the ‘great learning and ingenuity’ displayed by counsel, and scheduled an unusual second round of oral arguments. Yet after all this learning and argument, they arrived at a surprising conclusion: ‘It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.’ According to both legal systems, the court opined, Miner could not demand that Gilmour keep the dam gate closed all the time, since a riparian proprietor had ‘no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury’.

The decision’s exposition of this and other principles of what Lord Kingsdown, writing for the court, termed the ‘general law applicable to running streams’—that is to say the law of riparian rights, according to him common to French and English law—went on to be cited extensively throughout the British Empire and beyond as the definitive statement of the rules of riparian rights in the common-law world, as will be discussed in a later post.