Water law in medieval Lombardy

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

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

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

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

A new metaphor for Magna Carta and property - Part II: A new metaphor for property

The second post by Paul Babie on Magna Carta and the Forest Charter (the first post is here):

Green Man (13th Century), Bamberg Cathedral, Germany
© 1992 Clive Hicks (reproduced with permission)

At the outset of Part I, and of my article, quite intentionally, but without comment, I placed the image of a medieval forest; it is a visual representation of lands as they might have been at the time of Magna Carta. It captures, at least partially, Magna Carta’s legacy for property centered, one way or another, in the individualist-absolutist story.

We have heard this individualist-absolutist story told repeatedly, over a very long time: property as choice structured to suit the interests and preferences of the individual, with that power of choice and control protected against all others, including the sovereign. It has become, more than anything else, a metaphor for the liberal conception of property; the same conception that the Supreme Court adverts to and relies upon again and again, just as Chief Justice Roberts did most recently in Horne. The image of the medieval forest represents, visually, that metaphor. While romantic, that image is misleading and false.

The metaphor of Magna Carta as individualist-absolutist property misleads and is false because it represents only half the story—the other half is told by the Great Charter’s lost sister, the Forest Charter. Without the Forest Charter’s story, a necessary dimension of the freedom and liberty of property—the obligation towards others and towards the community—is neglected. The Forest Charter forces us to find a new metaphor, one that represents the dual stories of property as both individualist-absolutist and as community-obligation. This Section suggests replacing the metaphor in the form of an image that would have been very familiar to Kings John and Henry III, to the barons who forced their hand, and to most other people alive at the time that those kings set their seals upon Magna Carta and the Forest Charter: it is the image of the Green Man.

A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):

A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))

Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:

To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.

And on June 18, Lord Faulks answered:

The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.

At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

Old maps, natural resources, and international law in the South China Sea

(By way of Imperial & Global Forum:) Quartz recently published "The Philippines hopes a trove of ancient maps will prove its territorial claims against China", by Lily Kuo. Kuo writes that last week:

the Philippines opened an exhibit featuring dozens of maps spanning over 1,000 years of history—a collection that the Philippines says disproves China’s claim of sovereignty over a rocky shoal in the South China Sea, which has provoked increasing tensions between the two countries.

The exhibit held by the Institute of Maritime and Ocean Affairs includes maps from as far back as 1136 A.D. that purportedly show China’s southernmost territory has always been the province of Hainan—which would undercut China’s claims to much of the South China Sea, including territory that is claimed by the Philippines and Vietnam, among other countries. Ancient maps of the East Indies, of which the Philippines was a part, are shown to include what is today known as the Scarborough Shoal, a small piece of land about the size of three rugby pitches to the west of the Philippines, home to valuable fisheries and potential fossil fuel reserves.

The article includes some gorgeous old maps, including these:

World map published by Jesuit priest Matteo Ricci (1602 )

Published by Jesuit Pedro Murillo (1734)
(US Library of Congress)

Tian Ditu, or “the Atlas of Heaven and Earth” (1601)
(US Library of Congress)

The exhibit catalog is available on line.

Water law at the UK Supreme Court

Nandini Chatterjee recently posted at Imperial & Global Forum on an exhibition opening today at the UK Supreme Court in London, "A Court at the Crossroads of Empire: Stories from the Judicial Committee of the Privy Council", which she is co-curating. The exhibition website explains that it:

)

uses a range of case studies to explore how the JCPC served as an evolving hub of the British Empire - both shaping and shaped by a wide range of different cultures and communities - and how the judges serving on the JCPC applied the common law to both translate and mediate at the crossroads of Britain's colonial interests.

The exhibition includes panels created by my colleague Assaf Likhovski and me on the development of water law and constitutional law in Mandate Palestine through the 1926 Urtas Springs case (Jerusalem-Jaffa District Commissioner v Murra).

I also wrote about the case in a recent article:

Serious objections were raised... [to] the transfer of water from the village of Artas (spelled “Urtas” in the official documents of the time), south of Bethlehem, to Jerusalem. Arab opposition to the attempt of the Jerusalem Water Supply Department to ameliorate the shortage by pumping water from Artas led to a fiercely fought legal battle....

Realizing that the water plan was open to legal attack, the Palestine government enacted legislation, known as the Urtas Springs Ordinance, 1925, empowering the High Commissioner to authorize the Jerusalem municipality to take water from the Artas spring for a period of up to 12 months. Water sufficient for the Artas inhabitants’ domestic uses, animal watering, and irrigation of tree plantations was immune to taking. While water used for irrigating annual crops could be taken for the Jerusalem system, the Ordinance ordered that compensation be paid for damage to crops and for losses from inability to plant crops due to the reduction in water available to the village. Disputes between Artas residents and the Jerusalem water department over the level of compensation were to be decided by an arbitrator to be appointed by the High Commissioner, with no appeal from his decision.

Moghannam E. Moghannam, the plaintiffs' attorney

With a statute explicitly authorizing the water diversion, the only possible legal arguments available to the Artas residents were of the constitutional type, impugning the validity of the legislation itself. The Artas petitioners contended that the Urtas Ordinance violated their civil rights by taking private property—water—and providing an inadequate compensation mechanism, with no right of recourse to the regular courts of the land. Such a taking was in violation, they argued, of Article 2 of the League of Nations Mandate, which made the Mandatory responsible for “safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” Since Palestine Order in Council (Article 17(I)(3)) provided that “no Ordinance shall be promulgated which shall be in any way repugnant to or inconsistent with the provisions of the Mandate”, they claimed, this violation of the Mandate invalidated the legislation in question.

50th anniversary of the US Wilderness Act

The website of the 50th Anniversary National Wilderness Planning Team (Wilderness50) is dedicated to celebrating the 50th anniversary of the 1964 Wilderness Act:

In 2014, our nation will celebrate "50 Years of Wilderness" and this website has been created to document this historical commemoration honoring America's "True American Legacy of Wilderness." A national team, called Wilderness50, has been created to plan educational events, projects, programs, and products to raise awareness of wilderness during the 50th anniversary year. This website provides a map and listing of all local, regional, and national 50th anniversary events that are occurring nation-wide, including the National Wilderness Conference. It also provides access to resources for individuals or community groups interested in hosting a 50th anniversary event. 

The deadline for proposals for the conference, to be held in Albuquerque October 15-19, 2014, is January 10, 2014. Scholarships are available.

Contributions are also being solicited for contributions to a Smithsonian Museum of Natural History exhibit entitled, "Wilderness Forever: 50 Years of Protecting America's Wild Places", set to open next September.