Crusader riparian rights

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

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

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

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. 

Environmental law in Rome and beyond

For the Italian speakers among you (courtesy of the ESCLH blog): The Laboratory of Legal and Economic History at Università degli Studi "Magna Graecia" in Catanzaro will be holding a conference on "The environment between law and economics: a long journey from the Roman world to the contemporary age" on 3-4 December 2021. The program and links for remote participation are below and on the website Storia del diritto medievale e moderno.

Yom Kippur, Maimonides and greenhouse gas regulation

Tonight and tomorrow are the Jewish High Holiday of Yom Kippur, the Day of Atonement. In a recent debate about Israeli climate change policy my colleague at TAU, Pinchas Alpert, invoked a seasonal analogy based on a passage from Maimonides, the great medieval Jewish jurist and philosopher.

An article by Nadav Feldman in The Marker Magazine (in Hebrew) quotes an Israeli religious neoliberal blogger (yes, that American combination has recently reached Israel, thanks to American funding) as arguing that Israel should not take any regulatory action against greenhouse gas emissions. His lead argument is that Israel's contribution to global emissions is but a small proportion of global emissions, so any action taken by Israel will impose local costs without bringing about any benefit.

In response, Alpert, a climate scientist, points to a passage from Maimonides's Laws of Repentance, which many Jews study this time of year. Maimonides writes (3:4, transl. Eliyahu Touger):

Maimonides

A person should always look at himself as equally balanced between merit and sin and the world as equally balanced between merit and sin. If he performs one sin, he tips his balance and that of the entire world to the side of guilt and brings destruction upon himself.

[On the other hand,] if he performs one mitzvah, he tips his balance and that of the entire world to the side of merit and brings deliverance and salvation to himself and others. This is implied by [Proverbs 10:25] "A righteous man is the foundation of the world," i.e., he who acted righteously, tipped the balance of the entire world to merit and saved it.

So, too, for environmental issues such as climate change, argues Alpert, every person's contribution to the problem or its solution is decisive, and we each need to see ourselves as responsible for our current predicament.

May we all be sealed in the book of life.

Savagery, civilization, and property VI: Conclusion

In the last post we looked at how stadial thought reached modern commons thought through the worlds of colonial development and conservationism. This post concludes the series.

I have argued in this series of posts that various strands of modern commons theory, though based, as well, on novel theoretical and empirical work, seem to lean heavily on the structures, examples, and sensibilities of stadial theories of civilization that rose to prominence in the late eighteenth century. These Enlightenment-era ways of thinking are admittedly outmoded as theories of history, but why should the historical sources of current theory matter?

Beyond the important goal of understanding the sources of our theories, foregrounding the continuing influence of stadial thinking on current theories of the commons should help us question some aspects of these theories by highlighting some of their oddities — such as the disproportionate weight of studies of hunting, herding, and the like among a far more diverse universe of commons situations that could be studied.

Possibly more important are the residues of the narrative of civilizational progress that continue to adhere to property theory. Carol Rose has noted ("Evolution of Property Rights", in 2 The New Palgrave Dictionary of Law and Economics 93, 94 (1998)) the quasi-religious belief in the advantages of private property held by some property theorists, especially those associated with the modern law and economics movement, according to which “an evolving property rights regime might lead humankind toward a new kind of earthly Paradise,” “a secular Eden of peace and plenty.” Rose’s own work, as well as that of some of the other commons theorists surveyed above, is free of this bias, remaining pointedly agnostic as to the direction of evolution among property regimes. But others — not only law and economics types but Hardinians and others — seem to accept (though they might not put it in these terms) that private property represents a more advanced stage of civilization than does the commons. This type of thinking lies at the root of many neoliberal policy prescriptions, from the importance of secure private property regimes to developing countries to the salience of cap-and-trade as a solution for climate change and other environmental problems.

Lucas Cranach the Elder, The Garden of Eden (1530)

On the other hand, the Romantic and Marxist reactions to the Enlightenment stories of stadial progress continue to inform another set of prescriptions and critiques, most prominent among them the many studies of successful indigenous commons management following Ostrom’s work. Whatever the normative and ethical attractions of these positions, it seems that their appeal rests partly on a narrative of fall from grace, a sort of negative image of the economists’ story described by Rose, and a yearning to return to an Eden of primitive and community-based commons.

Finally, on a more general level, I would like to highlight the central role that historical narratives or myths continue to play in nominally theoretical and normative scholarship. Myths are important, but so is clear-headed thinking about policy. By recognizing the myths on which much commons scholarship is built, we might be able to improve it.

I'd be happy for readers' thoughts. The full article is here.

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”.

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

Just price

Thomas Aquinas
(detail from Valle Romita Polyptych by Gentile da Fabriano (c. 1400))

William Boyd recently posted  "Just Price, Public Utility, and the Long History of Economic Regulation in America". The abstract:

This Essay investigates the history of “just price” and its influence on the concept and practice of public utility regulation in the United States. It begins with a discussion of the Scholastic understanding of just price and its relationship to commutative justice, with particular attention to the problem of coercion in economic exchange. The Essay then discusses the centrality of just price to broader ideas of moral economy and to economic thought and regulation in colonial America and the early United States. The heart of the Essay shows how the idea of just price influenced public utility regulation as it took shape during the late nineteenth and early twentieth centuries. As the Essay demonstrates, received understandings of just price were fundamental to the public utility idea and were at the heart of battles over the proper approach to utility valuation and rate regulation during the first half of the twentieth century. The Essay concludes with a discussion of efforts to restructure formerly regulated industries during the last quarter of the twentieth century, with particular attention to the challenges faced by the Federal Energy Regulatory Commission as it seeks to ensure that prices in restructured natural gas and electricity markets are just and reasonable. Although much of the Essay’s purpose is descriptive, several larger points emerge from this study. First, the history of just price reveals that relations of reciprocity and fairness in exchange are at the very core of the public utility idea. When seen from this perspective, public utility represents an important experiment in translating abstract principles of economic justice and fair pricing into working rules for governing key systems of provisioning in a modern industrial society. Second, the history of just price reminds us that prices are more than signals; that they are also relationships and that price relationships can be coercive. At root, the economics of just price is an economics of coercion and, as such, an economics that resonates quite strongly with efforts by Progressive lawyers, legal realists, and institutional economists to develop an approach to law and economics (and economic regulation) that would put coercion at its center. Third, the history of just price shows that competitive markets, when functioning properly, can be powerful instruments for protecting consumers and facilitating fairness in exchange. But it also underscores the importance of taking individual markets on their own terms and recognizing that some markets, and the mechanisms of price formation at their center, are more vulnerable to disruption and manipulation than standard economic models suggest. Finally, at the most general level, the history of just price reminds us that for a very long time—far longer than the lifespan of classical and neoclassical economics—ethical and social concerns have been intimately bound up with conceptions of economy, economic life, and the provision of necessities.

The earliest boundary water treaty

Figure 1: 
Memorial cone of the Mesilim Treaty

Thanks to Peter Sand for contributing this post!

[Footnotes after the jump.]

The Musée du Louvre in Paris holds tangible evidence of the world’s first known legal agreement on boundary water resources: viz., the Mesilim Treaty, concluded in the 25th century B.C. between the two Mesopotamian states of Lagash and Umma. The terms of the treaty have been preserved as cuneiform inscriptions on a limestone cone (figure 1) and a stele commemorating Lagash’s victorious battle enforcing the treaty.[1] Fragments of both artifacts were excavated in 1878-1912 by French archeologists on sites at Tellō (Tall Lawh, Dhi Qar Governate in Southern Iraq), the ancient temple-city of Girsu, once the capital of Lagash.[2] The inscriptions, transcribed and translated into French, German, Italian and English,[3] turned out to match several other texts on corresponding archeological finds of the period. The key exhibit, the so-called ‘Stele of the Vultures’, depicts Lagash ruler E’anatum leading his army, and vultures devouring slain Umma warriors (figures 2 and 3).

Mesilim [or Mesalim, born ca. 2600 B.C.] was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonic’ position in the loose alliance of small adjoining Sumerian city-states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon.[4] Because of the prevailing precarious rainfall conditions, the agricultural economy of the entire basin area has always been crucially dependent on irrigation, mainly from the ‘great Tigris’, through an elaborate system of canals and levees which inevitably require close inter-community cooperation. The geographic focus of the bilateral Lagash-Umma agreement, concluded under Mesilim’s authority as external arbiter, was the fertile Gu-edena valley, roughly ten by four kilometers wide and irrigated by Tigris waters from a canal named Lum-magirnunta on the border between Umma and Lagash, with boundaries marked by stone steles.

Figure 2: Stele of the Vultures

Figure 3: Stele of the Vultures

Part of the treaty was a crop-sharing arrangement for a portion of boundary land (some eleven square kilometers) downstream on Lagash territory, that was cultivated by Umma under lease, against payment of an annual rental fee (máš, calculated in silver-shekel equivalents of barley crops) to cover the costs of canal maintenance.[5] However, when Umma repeatedly refused to honor its accumulated tenancy debts, hostilities broke out, resulting in partial destruction of the canal and in unilateral diversions of water upstream. In several successive military confrontations (‘the first known war in history that was, in essence, fought about water’),[6] Umma was ultimately defeated by Lagash (first under the leadership of E’anatum, ca. 2470 B.C.; and later under his nephew Enmetena, ca. 2430 B.C.),[7] and was forced to accept the reconstruction (and extension) of the canal and the reinstatement of the boundaries as originally drawn up by Mesilim.

Alas, the treaty so renewed and ‘writ in stone’, and the peace so re-established, does not seem to have survived for long, and was eventually overtaken and mooted by external political events (the Akkadian/Sargonic invasions) in subsequent generations. Even so, the agreement has been hailed as ‘the first international arbitration’,[8] and as ‘the oldest treaty of which there is a reliable record’.[9] It remains a unique early attempt at resolving a dispute over boundary waters by formal reference to a superior spiritual order (in this case, the deities of both parties, repeatedly ‘sworn to’ in the text), and hence may indeed qualify as a precursor of international law in this field – well over 4,000 years ago.[10]

--------------------------

Irrigation rights in medieval Islam

Barada River in Damascus

Yehoshua Frenkel, a professor at University of Haifa and member of our local environmental history forum, recently pointed me to a 2011 chapter by Boaz Shoshan on water law, "Mini-Dramas by the Water: On Irrigation Rights and Disputes in Fifteenth-Century Damsacus". The abstract:

Apart from discussions of matters of irrigation in legal works, medieval sources provide us with little information on the human dynamics and social interaction that are an integral part of irrigation systems. Some cases involving water were straightforward, whereas others were not. A laconic statement about a settlement (ṣulḥ) that was reached in Muḥarram 886/March 1481, in the presence of the viceroy of Damascus and the chief qāḍīs, between one Kamāl al-Dīn and Shihāb al-Dīn al-Muḥawjib concerning water that was coercively (zulman) diverted from the al-Manshīya river canal, provides us with only a faint echo about such conflict. Fortunately, on other occasions of water disputes Ibn Tawq paints a more detailed picture that allows some idea about their nature. This chapter discusses such disputes.

Shoshan is mostly interested in the social dynamics of the water disputes, but he also notes this information about the law "in the books":

That codifying regulations of water supply was a desideratum in the medieval Islamic world may be concluded from the Persian Kitāb-i Qāni ("The book of Qānāt"), written possibly in the eleventh century A.D., which purpose was to protect owners of subterranean aqueducts, that is, sub-surface canals that were engineered to collect ground water and direct it through a gently sloping underground conduit to surface canals.

Historical analysis in environmental law IV: What is to be done? - The commons, forest law, and police

At the end of the previous post in this series I argued that the history of environmental law remains in need of extensive work both in uncovering the legal roots of contemporary environmental law and in making the lateral connections between historical environmental law and other historical topics.

I would like to suggest that of these two dimensions—we might think of them as longitudinal and lateral—the first order of business should be longitudinal, deepening the temporal dimension of environmental law. We will be hard pressed to assess the significance of historical environmental law or its interactions with other areas of law and life without knowing what it was or what people thought about it. However, given that 'environmental law' is a recently coined term, where are we to look for historical environmental law? I will offer several directions of inquiry, some of them already explored by environmental and other historians, though often without the sensitivity to legal dimensions that might be expected were more legal historians to take up the task. (Not all work on historic environmental regulation is necessarily relevant to understanding the sources of current environmental law. For instance, scholars have investigated environmental regulation in Roman law and in Jewish law, but it would be difficult to claim that these ancient legal systems were the source of modern environmental law.)

One obvious place to look is to the history of that most well-worn of metaphors for environmental problems—the commons. As is well known by now, the actual medieval and early modern European commons caricatured in Garrett Hardin's parable of the tragedy of the commons were not the rule-free disaster zones he depicted, but rather highly regulated sites of interaction between humans and nature. Environmental historians have studied the laws governing the woodland and pasture commons, though not necessarily in the framework of 'environmental law' or with an eye to the type of questions a lawyer might ask of the sources. In particular, historians of environmental law might want to investigate broad issues such as the conceptions of law, justice, right, and property reflected in the commons regulations, as well as narrower ones such as the types of rules, standards, adjudicatory procedures, and remedies applied to various forms of environmental conflicts and their possible influence on later legal rules.

For instance, the principle of 'necessary use'—'that the actions of others should not deprive one of the basic materials needed to sustain one’s enterprise'—was apparently ubiquitous in early modern German commons by-laws, as it was in the rules governing water allocation in the nineteenth century western United States. It is also arguably the motivating principle behind the feasibility standard so pervasive in modern environmental regulation, which requires a polluter to use the best available technology only to the extent it is economically feasible. While a theorist might use this commonality to support a normative or positive argument about property in natural resources or pollution regulation, a historian might profitably search for the common roots of these norms or the paths through which they travelled in time and space, and the ways people justified or criticized them over time.

Moreover, legal fights against enclosure of the commons were clearly a precursor of more recent legal protections for open spaces, an alternative source to the commonly accepted stories about the Romantic and preservationist roots of this area of law, and one with a more socially-oriented tint. Investigation of the commons preservation movement and anti-enclosure movements in general are likely to yield insights into the political valence of some of the historical building blocks of environmental preservation law.

A related field demanding study is forest law. It is practically a commonplace among environmental historians that the concept of sustainability, so central to contemporary environmental law, originated in early modern forest management, and historians have shown that intensive forest regulation in Europe goes back to the medieval period. Environmental historian Richard Grove has made the connection between colonial forest management and concerns over climate change, and my own work has connected this concern to colonial forest regulation. E.P. Thompson's Whigs and Hunters highlighted the way early modern English forest law was both a tool of enclosure on behalf of landed elites and a site of resistance for commoners, and similar points have been made about English law in the medieval period. Other works have examined the historic interplay of private, common, and state property in forests and varying conceptions of conservation that were expressed in their regulation. These are all themes that continue to resonate in modern environmental debates. Further research might shed light on how forest law variously worked to preserve forests or facilitate their destruction, as well as on how this regulatory field influenced other areas of environmental law, including modern debates over the commons and enclosure.

Both these bodies of law are connected to a third, broad one (though some would deny it the distinction of being considered 'law'): so-called 'police' regulation. This flexible and capacious form of regulation, justified in terms of its promotion of good government and the common welfare, has had many points of contact with environmental issues since early modern times, through its protections for public health and safety and rules for management of natural resources.

In the next post, I'll give my take on Markus Dubber's attack on police regulation, and discuss further places to look for the history of environmental law.

Water rights VI: A human right to water

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.

South African Constitutional Court

A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

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.

The Pope, the Archbishop, and the Poet

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

I. The Pope

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

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

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

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

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

The river as legal person

Whanganui River

H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:

While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.

So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 

Law as constitutive of environmental attitudes

Henrys Fork, Idaho

Jerrold Long recently posted "The Origins of a Rebellion: Religion, Land, and a Western Environmental Ethic". The abstract:

This article examines an apparent irony in the environmental ethic of the contemporary American West. Much of the Interior West is dominated by a particular culture that is the product of Mormon settlement in the Salt Lake Valley and subsequent expansion throughout the region. The teachings of early Mormon leaders contained significant threads of what today would be recognized as environmentalism. Despite these teachings, and despite Mormons’ famously strict adherence to other theological tenets, the environmental ethic of the contemporary West is often perceived as anti-environment. Why would this culture, which holds so fast to its other religious teachings — including those teachings that for a time had significant and negative political, legal, and economic effects — reject this aspect of religious doctrine? Using the Mormon experience as a case study, this article argues that the contemporary West’s conservative environmental ethic is a tapestry woven from the interrelationships of legal regimes found and developed during western settlement, the cultural origins and destinations of the settlers, and the physical landscape itself. It is both what settlers found and developed upon arriving in the interior West that led to the region’s contemporary environmental conservatism.

In other words, Long is arguing that environmental law shaped environmental attitudes (notes omitted):

We tend to think of law as following culture (or ethics, or morals) both temporally and substantively. But the relationship is instead recursive, with both law and culture emerging from and giving rise to the other. As we assess the validity of a particular legal landscape, we compare it to shared meanings to determine if it is both valuable and legitimate. At the same time, we assess the value and legitimacy of our shared meanings by comparing them to what the law says is appropriate.

So while the Mormon settlers.., arrived, from all over the world, with cultural meanings in tow, those meanings were both confirmed and influenced by the legal landscape the settlers encountered upon arriving in the [region].

With regard to attitudes water among Mormon settlers in Idaho, Long argues:

When the Mormon (and other) agricultural settlers began arriving in the Henrys Fork region at the end of the 19th Century, they arrived in a place that already had a specific legal imprint placed upon it—both formally and informally. Whatever their origins, and many were only recent immigrants to the United States, their relationship with this new western landscape was already structured in a particular way. For several decades by that point, the custom, and then formal law, of the region was one that preferred the extraction or appropriation of water from natural water courses for its use elsewhere. Although all uses of water were limited to the extent they could be applied to a beneficial use, the beneficial uses of water were themselves constrained. In the Idaho Constitution, a hierarchy of beneficial uses was formalized, beginning with domestic uses, then agriculture followed by manufacturing, except in mining districts where mining superseded all but domestic uses. 

The Israeli (and Ottoman and Islamic) public trust doctrine

Chapter heading from the Hebrew translation of the Mejelle by Frumkin

Zafrir Rinat, Haaretz's environment reporter, recently wrote about the story of Moshe Puterman's arrest for entering a municipal beach without paying the admission fee, and the court decision which might be thought of as a foundational document of an Israeli public trust doctrine:

One day in 1959, Puterman and a few friends went to the seashore in Herzliya. As was usual at that time, the municipal attendants demanded that they pay in order to enter. But Puterman was fed up with paying, and he snuck in – with the attendants hot on his heels.

“There was a scuffle and I escaped, but they caught me and I was taken into custody,” he recalled recently. “I told the attendants that this was a public area and that they were acting like thieves. It upset me to pay for something that should have come to me by right.”

Puterman was convicted in Tel Aviv Magistrate’s Court for refusing to pay and for resisting the attendants with force. He was ordered to pay a fine. But he did not let the matter rest there.

“My lawyer was the late Avraham Socholovsky, who was also a personal friend,” Puterman told me. “As we left the courtroom, I asked him, ‘Do we keep going?’ ‘Of course,’ he replied.”

Socholovsky appealed, and Tel Aviv District Court Judge Jacob Gavison overturned the earlier conviction. [see excerpts of the decision below-DS]

*****

The ruling became a precedent that enshrined the public’s right to free access to the seashores. According to attorney Amit Bracha, executive director of Adam Teva V’Din: the Israel Union for Environmental Defense, the verdict led to legislation, in 1964, that prohibits charging an entry fee to beaches where only basic services – lifeguards, toilets, showers – are provided (though a fee can be charged for parking near a beach). It also led to the High Court of Justice decision in a petition filed by the IUED against the Interior Ministry more than 10 years ago. The court then instructed the ministry to order local governments to uphold the law concerning free entry to beaches. Nevertheless, there are a few beaches that still charge an entry fee.

I've translated below some excerpts from Judge Gavison's decision, which, it is worth noting, predates the well-known line of New Jersey beach access cases by a decade (see here, pp. 17-22). (I'd also like to note that Gavison taught law at the Tel Aviv extension of Hebrew University, the predecessor of the institution at which I teach.) Two points of contact with the American public trust doctrine seem interesting:

Sir Matthew Hale and the moral law of stewardship

Today we're fortunate to have an interesting guest post from Erin Drew, of the University of Mississippi English department:

Sir Matthew Hale is frequently credited with a key role in establishing the public trust doctrine in modern environmental law—a claim that has been contested by multiple scholars on the basis of both the legal relevance to American law and whether his claims for public rights in De Jure Maris can be taken as a statement of public trust at all. Whatever Hale’s relationship to public trust doctrine as a principle of law, however, his religious writings show that he relied upon legal metaphors of trusts and stewardship as the basis for moral arguments for the human obligation to care for their environment. References to human stewardship were not uncommon in religious writing of the seventeenth and eighteenth centuries, but Hale elaborates on the moral implications of the steward’s fiduciary role in a more extensive and legally detailed way than most, emphasizing the human obligation to account to the proprietary “lord,” God, for the responsible and proper use of that which has been entrusted to them.

In a chapter in his posthumously published Contemplations Moral and Divine entitled “The Great Audit, with the Account of the Good Steward,” Hale uses the Book of Matthew’s parable of the talents to imagine God calling humans to “account” for their use of the “blessings and talents” that God “committed to [their] trust and stewardship, to manage … for they ends they were given.” While the “blessings and talents” Hale discusses are broad and comprehensive, he gives special attention to the implications of human beings’ “stewardship” of creation for their duties to nonhuman creatures. In the section subtitled “Touching Thy Creatures,” Hale writes: “I received and used thy creatures as committed to me under a Trust, and as a Steward and Accomptent for them; and therefore I was always careful to use them according to those Limits, and in order for those Ends, for which thou didst commit them to me.” Hale frames the “Limits” to human control in terms of justice: God “has given us a Dominion over thy Creatures, yet it is under a Law of Justice, Prudence, and Moderation; otherwise we should become Tyrants, not Lords.” That “Law of Justice” requires using the nonhuman world with “Temperance and Moderation,” for the “Support of the Exigencies” of human life, yet with “Mercy and Compassion” for the “Powers of Life and Sense” which non-humans possess. To fail in either temperance or compassion would constitute a “Breach of that Trust under which the Dominion of the Creatures was committed to us, and a Breach of that Justice that is due from Men … to be merciful to [their] Beasts.” Cruelty and mistreatment of other creatures is therefore “a Tyranny inconsistent with the Trust and Stewardship that thou [God] has committed” to humans.

Thus Hale imagines a contractual relationship existing among God, humans, and non-humans, making humans morally responsible for the well-being of present and future generations of beings. Though Hale, like any contemporary moralist, stresses the sinfulness of the “Luxury and Excess … Lusts … vain Glory or Ostentation” that spur humans to mistreat and misuse the non-human creatures in their power, for him the fundamental sin is the violation of man’s fiduciary duties as God’s steward. Thus using creatures to excess is not simply a sin of personal gluttony. It breaks the terms under which God granted humans their limited dominion, by (in this case, literally) eating into God’s resources: whenever eating or drinking, Hale says, “I checked myself, … still remembered I had thy Creatures under an Accompt; and was ever careful to avoid excess or Intemperance, because every excessive Cup and Meal was in Danger to leave me somewhat Insuper and Arrear to my Lord.” The sin of mis- or over-use of God’s creatures, for Hale, lies in the violation of the contract between man and God to care for his creation according to the stipulated terms, and the failure to maintain God’s creation as a steward ought, by taking more from it than can be sustained. Hale believes the power granted to humans as the stewards of the world to be by its very nature subject to a law whose primary purpose is to ensure that justice and happiness is, overall, extended to each creature. That is, after all, the rationale that licenses human sovereignty over the world: that they maintain God’s ideal balance among the competing needs of various creatures for the optimal happiness of all. Only by justly fulfilling the duties laid out for them by God can humans legitimately claim “dominion” over the nonhuman world.

It makes sense for Hale to rely on the language of law and justice to reinforce moral obligations, since as biographer Alan Cromartie points out, Hale’s legal philosophy was based upon the premise of a legislating God who was “the basis of all natural moral knowledge,” as well as the premise that “the rule that all contracts should be kept was much the most important natural law.” In this, Hale was a part of a longstanding tradition of contractarian natural law, which drew moral principles from the nature of the fundamental contract between God the creator and his creations. Not all those who shared Hale’s belief that human beings were the trustees and stewards of God’s gifts extended their obligations to nonhuman creatures, but there is reason to believe that his opinions on that subject had a long and lasting influence on English morality, if not law: “The Great Audit” was excerpted, condensed, and reprinted regularly as a pamphlet from the 1690s to the 1790s, and the sub-section “Touching Thy Creatures” was the longest of the eight sub-sections included in those condensed editions, taking up five of a total of around twenty-five pages.

Environmentalists, evangelicals and property rights

Dan Farber recently made an interesting comparison at Legal Planet:

Today, evangelical Christians tend to be aligned with conservatives in defense of private property. But that was not always true. In the 19th and early 20th Centuries, evangelicals launched a major attack on property rights. As historian John Compton documents in a recent book, they also adopted the idea of the “living Constitution” to justify their revisionist view of property.

The conflict between property rights and religion was sparked by moral opposition to drinking and gambling. Evangelicals wanted to ban alcohol and lotteries, both of which had been long-standing, widely accepted features of American life. Lotteries had even been used to finance the construction of churches. But prohibition of alcohol sale and lotteries threatened to destroy vested rights in those activities. Evangelicals argued that changing moral judgments could render some existing property rights illegitimate. They were largely successful in this effort.

These days, it is environmentalists, rather than evangelicals, who want to revise concepts of legitimate property rights. They believe that some uses of property, such as destroying wetlands or the habitats of endangered species, are illegitimate and undeserving of constitutional protection. It is somewhat ironic that the theories used to justify these views have their roots in the arguments of what would now be called the Religious Right.

Carry A. Nation (1903), arrested over 30 times for her "hatchetations" of Kansas saloons.
She occasionally greeted bartenders with "Good morning, destroyer of men's souls".
(Iowa State Wine Grower News)

 For more on the affinities between evangelism and environmentalism, see here.

Who by earthquake and who by drowning?

Worms Machzor (1272)

In this time of wandering of nations, apparently partly climate-induced, lawyers are wrestling with the question of the legal status of climate refugees. On the other hand, a traditional view, still held by many, sees a seamless continuity between law and environment.

Over the next couple of days Jews will celebrate Rosh Hashana, the Jewish New Year, also the Jewish Day of Judgment. One of the highlights of the synagogue service for Ashkenazi Jews is the prayer known as Unetaneh Tokef ("Let us relate the power of the day's holiness"), a sort of Jewish Dies Irae, which contains these lines (translation Helen Plotkin):

On Rosh Hashanah it is written, and on Yom Kippur it is sealed.
How many will pass and how many will be created?
Who will live and who will die?
Who in their time, and who not their time?
Who by fire and who by water?
Who by sword and who by beast?
Who by hunger and who by thirst?
Who by earthquake and who by drowning?
Who by strangling and who by stoning?
Who will rest and who will wander?
Who will be safe and who will be torn?
Who will be calm and who will be tormented?
Who will become poor and who will get rich?
Who will be made humble and who will be raised up?

While our modern sensibilities make the causal connection between morality and environmental catastrophe difficult to accept at face value, there is an ethical attraction in the older view's refusal to absolve humans for their responsibility for the suffering caused by "natural" disasters; these become disasters only with the addition of human agency.

As the traditional Jewish New Year's blessing goes, may we all--the wandering and the tempest-tost, as well as those fortunate to have to face only the ethical dilemmas created by the suffering around us--be inscribed and sealed for a good year.

(For more on immorality and environmental catastrophe see here.)