Water law in common law cultures - Getzler's synthesis

The latest issue of Western Legal History is dedicated to the topic of "Water", and I plan to post on a number of the pieces in this issue. 

I'll start with Joshua Getzler's masterful survey of water law in Britain and many of the territories it ruled at various points in history, "Ownership and Control of Fresh Water in Common Law Cultures". Getzler manages not only to integrate major developments in many legal systems - including those of the US, Canada, Australia, New Zealand, India, and Mandate Palestine - and across nearly a millennium (beginning with Bracton), into a succinct and coherent whole, but he does so while elegantly connecting classical doctrine with current concerns, such as environmental protection and indigenous water rights. 

One aspect of the article that I particularly liked was its unpacking of the intertwined and often contradictory lines of thought in the common law, which Getzler deftly connects to Romanist and feudal ideas of property.

I highly recommend this article to anyone looking for a broad yet succinct survey of the history of water law.

(For more on water law in the British Empire, see my posts here.)

Rome and the sea of law

ASOR (Ancient Near East Today) just put up a post by my editorial colleague, Emilia Mataix Ferrándiz: "A Sea of Law: The Romans and Their Maritime World". Mataix Ferrándiz begins:

The sea was key for Rome’s success; it served as the setting of several battles that granted them hegemony over the Mediterranean as well as the main highway for both ideas and commerce. However, human bodies are not naturally suited to the sea; entering or crossing it means challenging one’s own capacities in the face of the power of water. The latter is echoed in literary sources, which often focus on the sea’s enormity and wilderness, thus evoking — and sometimes even exaggerating — its aura of mystery and uncertainty and the effect it has in ancient societies.

Roman legal sources, on the other hand, tend to focus more on the practical challenges and effects of interacting with the sea, presenting a different vantage point from which to study how Romans regarded and dealt with the challenges presented by the sea. So what can we say about how Roman jurists perceived the sea? Although jurists coincide in their understanding of the sea as a dangerous realm not governed by their civil law, the solutions which they provided for similar problems vary from jurist to jurist and from one period to another.

Roman mosaic from Veii (Italy), 3rd-4th century AD, Badisches Landesmuseum Karlsruhe (Carole Raddato)

In the Roman world, spaces were governed by different legal fields. While the land was managed by ius civile (the law of Roman citizens), the sea was a space of ius gentium, or the law of all peoples. It was the jurist Marcian (second–third century CE), who wrote that the sea was the common property to all according to natural law. From his writings the main point to note is that the sea is not subject to an individual’s dominion and, therefore, is also not subject to Roman governance. Despite Roman imperialistic aims and propaganda, it is unlikely that the ideology of rule over land and sea extended to any practical attempts to regulate the use of the sea. 

Mataix Ferrándiz goes on to argue that

Nature versus the Common Law VI: Diversion of water

In the last installment in this series we looked at how the English rule on escaping water in Rylands v Fletcher was rejected in British India due to perceived differences in the environments and needs of the two countries. Today we look at a classic issue of water law, complaints by riparian owners of upstream water uses that interfered with their own uses. As with the issue of escaping water, what was considered "natural" could turn, here too, on local natural conditions.

The traditional common law rule of conflicting riparian uses – that an upstream riparian may not divert a stream's water to the (unreasonable) detriment of downstream owners – was explained by the court of King's Bench in 1625 (Shury v Piggot, 81 English Reports 280) in terms of natural law: "a water-course […] doth begin ex jure naturæ, having taken this course naturally, and cannot be averted" and "the nature of this [water-course] is to be current [i.e. to flow]".

In the leading case of Evans v Merriweather in 1842, the Illinois Supreme Court advanced a distinction: An upper riparian might reasonably consume all the water in the stream if his use were a "natural" one, necessary for existence, but not were it to be considered "artificial", for the mere increase of "comfort and prosperity". The court then suggested that the application of this distinction would vary depending on natural conditions:

The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could live if water was not employed in irrigating lands, or in propelling his machinery. In countries differently situated from ours, with a hot and arid climate, water doubtless is absolutely indispensable to the cultivation of the soil, and in them, water for irrigation would be a natural want. Here [in Illinois] it might increase the products of the soil, but it is by no means essential, and can not, therefore, be considered a natural want of man.

What riparian uses were to be recognized as "natural", and therefore permitted, was thus dependent on the climate and environment. Irrigation would be considered an "artificial" use in the American Old Northwest, as it would be in England, but the court had legitimized changing the law if and when the common law spread to arid lands.

This way of thinking was crucial for the development of water law in the arid western states and territories of the United States, in which the traditional common law of riparian rights was rejected in favor of a new system. The new law, known as "prior appropriation", opened up water resources to appropriation by all, not just riparian owners, and allowed them to take as much of the water as they could put to beneficial use, regardless of the effect on later appropriators. An early case from Colorado discussed whether an appropriator could dig a ditch across another's land without permission, an invasion of property that would clearly not be allowed under the traditional common law. Along the way it advanced a general theory of the adaptation of property law to environmental conditions:

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.

Sic utere versus salus populi

In a series of publications, most importantly her 2009 book, Chasing the Wind, Noga Morag-Levine has argued forcefully for distinguishing between continental European-style "police" regulation and common-law-style environmental regulation based on a nuisance conception. The recent issue of Law and History Review has an interesting article by Morag-Levine, "The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis", in which she finds the roots of this distinction in English law much earlier than she has previously argued. The abstract:

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

from John Speed's 'The Theatre of the Empire of Great Britaine' (1611-1612) (British Museum)

Bounties and land-use regulation

Jack Whiteley recently posted "Property in Wolves", forthcoming in the Cornell Law Review. The abstract:

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

Note: Apparently bounties are still with us, as can be seen in the recent poster below. 

(Boise State Public Radio)

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

The usufructuary ethos

H-Environment recently posted a review by Jay David Miller of Erin Drew's The Usufructuary Ethos: Power, Politics, and Environment in the Long Eighteenth Century (U. Virginia Press, 2021). Some excerpts from the review:

Erin Drew summarizes the core principle of the early modern set of ideas she calls “the usufructory ethos” as follows: “What you have is ‘yours’ only in a partial and temporary sense” (p. 47). Nowhere did this principle manifest itself more clearly than in the figure of the landlord, who commanded power over tenants and by extension the land itself, but who was also, theoretically, bound by responsibilities to both subordinates and superiors. The concept of “usufruct”—which originated in Roman law but was heavily mediated through Christian theology—addressed the paradoxical nature of the landlord’s power by stipulating that the rights associated with ownership were circumscribed by far-reaching and interconnected obligations “that linked not only past, present, and future but [also] humans, nonhumans, and God, as well as the social, political, and natural worlds” (p. 2). Drew argues that recovering the history of the usufructory ethos in late seventeenth- and early eighteenth-century Britain changes the way we understand the human relationship to the environment in this era and could inform how we imagine it today.

*****

After tracing various iterations of the usufructory ethos through the writings of John Howe, Richard Allestree, Thomas Adams, Matthew Hale, and Thomas Tryon, Drew concludes chapter 1 with the more familiar John Locke. Locke’s significance to the study lies in the fact that the theory of property articulated in his Second Treatise on Government (1690) both relies on the concept of usufruct and undermines it in ways that foreshadow its gradual recession. While the Second Treatise contains usufructory provisos against waste and spoilage, Locke included these mainly as a way of protecting individual property rights, rather than stewarding resources that properly belong to God for the sake of others. Furthermore, Locke’s monetary theory, in which the fruits of labor are abstracted into capital, rendered concerns about waste and spoilage obsolete, as did his assumption that the European “discovery” of America opened up a limitless supply of land. By identifying these features of Locke’s thought, Drew illustrates how the usufructory ethos would come under increasing pressure as commerce and colonization came to define the seventeenth and eighteenth centuries. 

The law of necessity

Ely Cathedral and the fens

A new article by John Collins in Past & Present, "The Long Parliament and the Law of Necessity in Seventeenth-Century England", highlights the importance of claims of necessity in the history of environmental law. As necessity is also one of the foundations of much of the law made around historical epidemics, the topic is particularly timely. An excerpt from the article (notes omitted):

Narratives of perpetual necessity aroused concern in the early seventeenth century. Sir Edward Coke, for example, was worried about the power that the commissioners of sewers possessed over property in the Case of the Isle of Ely of 1609. The famed jurist heard these arguments while he was chief justice of the common pleas, a position he had obtained in 1606. This case was just one of several involving the ambitious undertakers of the English fens who sought, through mechanical improvements, to obtain control over the flood waters that engulfed the low-lying regions around Ely, in order to create productive, and enclosed, farmland. Their pursuits put them squarely at odds with those who wanted to keep the fens as they were so they could continue to enjoy public rights in the marshlands, with inhabitants from surrounding regions who did not want to pay the taxes required for the building of the pumps and dykes, and sometimes with landholders who had parts of their property expropriated so that the dykes could be built.

Legal cases arose over the statutes that authorized the commissioners of sewers. As David Chan Smith has so carefully shown in his recent book on Edward Coke’s jurisprudence, conflicts arose over ‘how taxes should be assessed to pay for sewer works and whether the commissioners had the power to direct the creation of new works’. The particular background to the Ely case involved a group of projectors who, in 1605, were going to drain the fens around Ely and pay for it either through direct or indirect expropriation of lands. While the commissioners of sewers decreed the project legal, the 1607 parliament had refused to sanction it.

In a reversal of previous judgements friendly to the discretionary powers of the commissioners, Coke attempted to bind them through a restrictive definition of necessity. For Coke, the commissioners of sewers could not tax English subjects unless there was an ‘inevitable necessity’ that mandated the construction of dykes, walls or other technologies to defend the land against floodwaters. Innovation was not included in Coke’s narrative of necessity. He only allowed taxation or the expropriation of property for the repair of pre-existing dykes or walls. For Coke, it was only for the sake of a structure that defended the English countryside against inevitable danger — a danger that was not presently visible but would assuredly manifest itself in the future, as the English knew from flood patterns and ocean forces through hundreds of years of experience — that the commissioners of sewers could transform the property of English subjects to achieve the preservation of the commonwealth. If any type of actual innovation was going to be made, the houses of parliament needed to approve it.

In many ways, Coke was an exceptional figure within the English legal community, as those judges who ruled before him on the various statutes of sewers and those who read after him, most notably Robert Callis, did not agree with his restrictive understanding of necessity. For Callis, who gave a reading on Henry VIII’s statute on sewers in 1622 at Gray’s Inn, Coke’s ruling did not fully appreciate the equity embedded in the powers given to the commissioners of sewers. Because their work was of such a ‘great and urgent necessity and use for the good of the whole Commonwealth of the Realm’, the intent ‘maybe extended in exposition beyond the letter of the words’. An equitable reading of the statute allowed judges to ‘inlarge the letter of the Law in the sence of construction, because it tends so much to the advancement of the Commonwealth’. For Callis (who in all likelihood stood to gain from the drainage projects), the soul of the law allowed for new projects even while its strict wording did not. Callis’s reading, at least in 1622, was the legal victor. Stuart lawyers in general allowed a relatively wide latitude when it came to the application of the law of necessity. Utility and improvement, as well as preservation, fitted into their narrative of necessity, which in turn provided those empowered to utilize such narratives a broad remit to generate novel positive laws.

Hartog on property in land and water

Monk's Ditch in the Gwent Levels, Wales, land reclaimed in the Roman period

As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine:

I spent many hours reading and rereading those waterlot deeds [granted by the eighteenth century Corporation of the City of New York]. I wrote many pages that unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.

In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.

The making of Calcutta

More on Debjani Bhattacharyya: Rohan D'Souza recently reviewed her Empire and Ecology in the Bengal Delta: The Making of Calcutta (Cambridge UP, 2018) for H-Water. D'Souza writes:

Empire and Ecology in the Bengal Delta announces a shift in gears within the bourgeoning and bustling field of the environmental histories of South Asia. Instead of taking the familiar route that revisits themes in the existing canon—forests, irrigation, and carnivore control—Debjani Bhattacharyya cuts an altogether fresh path by exploring how radical ecological change was critical to the making of urban colonial Calcutta (today’s Kolkata). The core claims in the book pivot on the many arduous British efforts from the late eighteenth century onward to transform Calcutta’s soggy marshy origins into landed concrete spaces—the firmed-up surfaces upon which were built residential, commercial, and industrial infrastructure and the basis for widespread financial speculation in real estate.

Whereas much of the detail on the drying out of British India’s premier colonial city can be found in a fairly voluminous documentation on drainage works, reclamation projects, and hydraulic engineering schemes, these admittedly technical accounts, we are cautioned, fail to meaningfully grasp the actual “secrets-of-land-making” (p. 1). transformation of “floating watery soils” into firm land, Bhattacharyya argues, was principally an ideological project that was profoundly underwritten by the notion of landed property, which, as a “legal technology” to “demarcate land, marsh, accretion and water,” actively triggered the clotting of Calcutta into urban soil (p. 23). Colonial landed property, moreover, by being set on a treadmill of economic valuation inevitably transmuted into the archetypal capitalist commodity: subject to the logics of the market and the relentless pursuit of profit. Unsurprisingly, therefore, as Calcutta in the early decades of the twentieth century began to explode into a crowded city—short on space, cramped with people, and lacking affordable housing—a thriving and ferocious urban land market burst forward. While Bhattacharyya does provide a riveting account of the aggressive jostling for land among an increasingly vocal working class, sundry lobbies of builders, extortionate landlords, the oscillating fates of rent speculators, and various interventions by municipal authorities, the discussion, however, is more pointedly aimed at returning us to the “secret.”

What finally emerged from the protracted confrontations over land scarcity, we are told, was a less advertised, if not entirely unstated, consensus among the various contending urban interests: that the outlying marshes and untidy swamps were “lands-in-waiting” rather than distinct hydrological phenomena (p. 172). This unanimous and determined call for cutting off the city from its “watery hinterlands,” in Bhattacharyya’s estimate, actually sought to mask a radical ecological rupture by which land and water were meant to be split into distinct and separable entities, instead of being acknowledged as ecologically entwined domains and integral to Bengal’s deltaic environments.

More at H-Water.

Fishing rights and colonial government

Shourya Sen and Richard Adelstein recently posted "Fishing Rights and Colonial Government: Institutional Development in the Bengal Presidency". The abstract:

We examine the evolution of fishing rights in colonial Bengal through a series of cases heard at the Calcutta High Court in the 1880s and culminating in the passage of legislation in 1889. We posit an implicit relational contract between the colonizing British and the landowning class in colonial Bengal as a way to understand the concurrent evolution of fishing rights and institutions of governance in the region. The system of incentives created by this contract determined the development of fishing rights at a crucial moment in the history of colonial Bengal and, more broadly, became a primary mechanism of institutional change in the region. The analysis also shows the Calcutta High Court to have acted, albeit in vain, as a truly independent judiciary.

Macchi, a Muslim caste of fishermen, from Tashrih al-aqvam (1825)

Coal as a green fuel

Earlier this year Environmental History published Germán Vergara's "How Coal Kept My Valley Green: Forest Conservation, State Intervention, and the Transition to Fossil Fuels in Mexico". Some excerpts:

This article explores how state policies and legislation of successive Mexican governments in the late nineteenth and early twentieth centuries sought to curb rapid deforestation by fostering the energy transition to fossil fuels (coal and oil) in industrializing regions of the country such as the Valley of Mexico and Monterrey.

*****

Anthracite coal breaker and power house buildings,
Madrid, Mexico, circa 1935

In the 1850s, both conservative and liberal governments in Mexico took an interest in forest conservation. In 1854, during General López de Santa Anna’s conservative administration, the recently created Ministry of Development (Ministerio de Fomento) asked mining districts nationwide for information about the extension and characteristics of the forests being logged for mining. The government agency also inquired about local regulations governing forest exploitation and reforestation efforts. In 1857 the new liberal government, despite ongoing military challenges from conservatives, sent a memorandum encouraging state governments to enact legislation protecting forests. In typical fashion for Mexican liberals, the government not only delegated the responsibility to local authorities but also made clear that conservation measures should not interfere with the timber needs of industries and mines.

Calls for forest conservation became more common in the 1860s. Key institutional actors in Mexican science, such as the Mexican Society of Geography and Statistics (Sociedad Mexicana de Geografía y Estadística), began publishing significant work on forest conservation. In one editorial, the editors of the Boletín (the society’s publication) expressed alarm over rapid forest loss. Like Río de la Loza, they blamed factory owners and the indigenous population, who “cut and destroy their only patrimony,” although they also criticized owners of large estates (hacendados). The journal also published the work by conservationists such as Romero Gil, who drew from Alexander von Humboldt and Mexican mining engineers to argue that forests prevented drought and fostered human health. In one article, Gil offered an overview of earlier forest legislation and called for reviving provisions from colonial forest laws, particularly those relating to coppicing (horca y pendón). In an effort to inspire analysis and discussion of earlier legislation, the Boletín reprinted an 1845 Mexican forest code, one of the first issued in independent Mexico.

*****

As coal production increased, it became clear to state officials that Mexico needed a modern legal framework to facilitate and regulate coal extraction. A heated debate broke out between those who argued that coal deposits ultimately belonged to the nation (following the tradition of the colonial mining ordinance, Ordenanzas de Minería) and those who defended the preeminence of private property rights. To a degree, the controversy was rooted in confusion over the natural composition of coal and other fossil fuels. For some experts, and seemingly many laypeople, the organic origins of coal and oil made them nonmineral. Critics of this position posited that although both were organic in origin, they had been formed by geologic nonorganic processes, thus qualifying them as minerals. Most experts agreed and considered both coal and oil as “fossil fuels” (combustibles fósiles). As such, coal and oil should fall under the old colonial tradition of state ownership that only governed minerals.

The matter was settled in 1884 when the federal government enacted a new mining code. The code’s authors were mostly interested in creating suitable conditions for Mexico’s industrialization and were perfectly aware that a key component of the project was the large-scale adoption of fossil fuels for industrial power. The new code recognized coal and oil as minerals (as under colonial law) but gave private owners full property rights to surface and subsoil mineral wealth. Thus the Mexican state relinquished its claim to being the ultimate proprietor of subsoil commodities, including coal and oil, and declared that private landowners could exploit those deposits without prior government authorization. The code also sought to stimulate coal and iron mining by exempting both from taxes for fifty years. It is important to note that scholars have often interpreted the mining code of 1884 as an attempt to attract foreign investment, overlooking its long-term effects on Mexico’s energy transition to fossil fuels. The code not only regulated the fossil fuel market; it created it. Beyond spontaneous market processes, it was lawmaking—that ultimate tool of politics and policymaking—that proved instrumental in Mexico’s transition to fossil fuels. The code remained the main legal framework for the coal and oil industry until the enactment of the Constitution of 1917.

Savagery, civilization, and property II: Civilization and its discontents

(Part II of the series, Part I is here.)

The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents),  of what would come to be known as “stadial theory” or “four-stages theory.” This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New World societies that reminded Europeans of societies described in classical Greco-Roman and biblical sources, and raised the issue of what separated “savage” or “barbaric” peoples from “civilized” ones. Stadial thinking offered a theory of progress:

In its most specific form, the theory was that society ‛naturally’ or ‛normally’ progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce. To each of these modes of subsistence, it came to be argued, there corresponded different sets of ideas and institutions relating to law, property, and government… (Ronald L. Meek, Social Science and the Ignoble Savage 6 (1976))

From the beginning, property law had a central place in this type of theory — it was, it seems, the motivating factor behind the theory  — and the discussion of property displayed striking similarities to aspects of modern commons theory (to be discussed in Part III below). John Dalrympleʼs three-stage theory, the first published version of stadial theory (1757), connected the progress of society with increasing specification of property rights. Moreover, it attributed the transition between stages to what we might today call increasing pressure on resources:

The first state of society is that of hunters and fishers; among such a people the idea of property will be confined to a few, and but a very few moveables; and subjects which are immoveable, will be esteemed to be common. In accounts given of many American tribes we read, that one or two of the tribe will wander five or six hundred miles from his usual place of abode, plucking the fruit, destroying the game, and catching the fish throughout the fields and rivers adjoining to all the tribes which he passes, without any idea of such a property in the members of them, as makes him guilty of infringing the rights of others.

The next state of society begins, when the inconveniencies and dangers of such a life, lead men to the discovery of pasturage. During this period, as soon as a flock have brouzed [sic] upon one spot of ground, their proprietors will remove them to another; and the place they have quitted will fall to the next who pleases to take possession of it: for this reason such shepherds will have no notion of property in immoveables, nor of right of possession longer than the act of possession lasts. The words of Abraham to Lot are: “Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then will I go to the right; or if thou depart to the right hand, then will I go to the left.” And we are told that the reason of this separation, was, the quantity of flocks, and herds, and tents, which each of them had, and which the land was unable to support; and therefore lord [sic] Stairs ingeniously observes, that the parts of the earth which the patriarchs enjoyed, are termed in the scripture, no more than the possessions.

A third state of society is produced, when men become so numerous, that the flesh and milk of their cattle is insufficient for their subsistence, and when their more extended intercourse with each other, has made them strike out new arts of life, and particularly the art of agriculture. This art leading men to bestow thought and labour upon land, increases their connection with a single portion of it; this connection long continued, produces an affection; and this affection long continued, together with the other, produces the notion of property. (John Dalrymple, An Essay Towards a General History of Property in Great Britain 86–88 (1757))

Lord Kames

The jurist Henry Home, Lord Kames, also connected the stages of society to property law in his Historical Law Tracts (144–46 (Edinburgh, A. Kincaid & J. Bell, 1758), footnotes omitted and spelling modernized):

In the two first stages of the social life, while men were hunters or shepherds, there scarce could be any notion of land-property. Men being strangers to agriculture, and also to the art of building, if it was not of huts, which could be raised or demolished in a moment, had no fixed habitations, but wandered about in hordes or clans, in order to find pasture for their cattle. In this vagrant life men had scarce any connection with land more than with air or water. A field of grass might be considered as belonging to a horde or clan, while they were in possession; and so might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer subsisted any connection betwixt them and the field that was deserted. It lay open to new-comers, who had the same right as if it had not been formerly occupied. Hence I conclude, that while men led the life of shepherds, there was no relation formed betwixt them and land, in any manner so distinct as to obtain the name of Property.

Agriculture, which makes the third stage of the social life, produced the relation of land-property. A man who has bestowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it.

Elsewhere Kames connected the advance between stages with the pressure of growing populations on resources: 

Water rights in the Mexican Supreme Court

Peter Reich recently posted an English-language abstract for his "Water Rights in the Mexican Supreme Court during the Postrevolutionary Era: 1918-1946":

This book chapter analyzes the Supreme Court of Mexico’s development of a “national waters” jurisprudence after the 1910-1920 Mexican Revolution through judicial review of amparo cases (challenges to official action). Although the Constitution of 1917 generally defined bodies of water within the country’s boundaries as property of the nation, the Court had to apply this provision to specific disputes between state or local bureaucrats and particular landholders for access control. Competition over springs, storm water, groundwater, drinking water, and infrastructure, as well as problems unique to communal resource ownership and petroleum exploitation, raised questions about how much the government could limit individual uses on behalf of the public. The author concludes that despite the dramatic ideological conflicts of the postrevolutionary period, the Supreme Court usually decided cases according to traditional property and evidence concepts regardless of political trends.

The full book chapter is in Spanish, but Reich is at work on a revised English version. We'll keep you updated.

Before Trump

Today's "This Day in Water History" has this:

Judson Harmon, c. 1912

June 11, 1895: First day of tenure of Judson Harmon as U.S. Attorney General. “Harmon issued the most explicit statement of what became known as the American doctrine of absolute sovereignty, that “the rules, principles and precedents of international law impose no liability or obligation upon the United States,” in a case involving a claim by Mexico for damages from diverting the waters of the Rio Grande.” Or, as one source put it: “US Attorney General Judson Harmon tells Mexico that the US will ‘do whatever it pleases’ with water from the Rio Grande.”

Commentary: Even for those days, this was a pretty amazing statement.

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 I: Introduction

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments!

Environmental law has no history.

This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Silent Spring). Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history.

The general view of environmental law's history is that before circa 1970 environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Rather, it is taught, the environment was regulated through nuisance law—a system relying on private parties, or sometimes the government, bringing a lawsuit to enjoin environmentally harmful activities or obtain damages for environmental harm: "Prior to the explosion of environmental legislation in the 1970s, the common law was the legal system's primary vehicle for responding to environmental problems.... The common law relied largely on nuisance law doctrines to resolve environmental controversies..." (Percival et al, 63) Some look to this period as a lost golden age; others see it as having been a workable system for its time; while yet others condemn it as a failure.

This view of modern environmental law being created ex nihilo in a moment of crisis is, first and foremost, inherently implausible.

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 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.