Environment, Law, and History

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.

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

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

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

In unusually good timing, following on last week's post on Roman water law, the Edinburgh Legal History Blog posted the other day on a workshop recently held at Edinburgh's Centre for Legal History on the management of water resources and waterways during the Roman period. The blog reports:

The papers were grouped into three themes: (i) the management of waterways; (ii) the management of land adjacent to waterways; and (iii) the exploitation of water resources.

The central aim of the workshop was to explore the potential and challenges of studying a historical problem from the perspective of different sets of evidence. From this point of view, the conference was a success. The management of water resources was an ideal subject, partly because the effective exploitation of water was essential to both agricultural and urban development in the ancient world. Moreover, the contributions of archaeologists and lawyers combined to lend an insight into the integrated technical and legal strategies that the Romans employed to the challenge of supplying water to the places it was required. In the case of rural communities, for example, irrigation was a central concern; while cities frequently relied upon rainwater collection and aqueducts to provide for their populations. Maintaining the navigability of waterways (both natural and man-made) was also an important task. In all these cases, the construction and maintenance of the necessary infrastructure was facilitated by the Roman legal framework, which provided remedies designed to govern the relationships between the individuals engaged in these tasks.

The workshop program is here.

Legal historians under the Roman aqueduct near Caesarea, Israel, 2017

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

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

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

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

Gonzalo Rodriguez recently posted "Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta". The abstract:

No single factor has had a more significant effect on the ebbs and flows of history than water. Water creates civilizations, and water brings them to extinction. Even today, thousands of years after we learned to harness the power of water, we continue to struggle in determining how to prioritize competing uses of water resources, how to make water available to all who need it, and how to protect it. Yet, these are questions that humans have faced since as long as history dares to recollect.

What factors guide civilizations in their decision whether, and to what extent, to regulate and protect inland waterways? This article looks at four legal codes from three distinct civilizations: From the Romans, The Institutes of Gaius and the Corpus Juris Civilis; from the Visigoth Kingdom, the Visigothic Code; and from the English, Magna Carta. This article proposes that, perhaps more so than inherited Roman tradition, two sets of factors influenced the extent to which these codes protected inland waterways: perceptions of water resource abundance and the propensity for navigability and trade of these civilizations’ inland waterways.

The next article from the special issue of Western Legal History on Southern California water is Peter Reich's own "The All-American Canal and the Civil-Common Law Divide". Reich writes:

The wide divergence in legal doctrine between civil law in Mexico and common law in the United States illustrates why resolution of water disputes... has been so difficult. Mexican water rights, descended from Roman and medieval Spanish concepts and applied in the northern territories that became the U.S. Southwest after 1848, have traditionally been shared among various users, especially during times of drought....
U.S. water law... differs significantly from Mexican law, particularly in the western states, which developed the doctrine of prior appropriation granting an absolute, exclusive legal right in surface waters and underground streams to the first beneficial user....

These conflicting water doctrines have affected not only internal jurisprudence in Mexico and the United States, but their relations with each other as well. In 1928, the two countries' representatives to the International Water Commission were negotiating the status of existing diversions from the Colorado and Rio Grande, and the American section proposed that, as a matter of comity, such uses be recognized and confirmed as prior appropriations. The Mexican section rejected the proposal, stating that it could not agree to any restriction on its sovereignty over river tributaries within its own territory, and so could not recognize even established uses of this water on the other side of the border....

Due to these doctrinal disparities, Mexico-U.S. water disputes have been addressed largely through diplomacy rather than the courts....

Notwithstanding divergent legal regimes and diplomatic limits, a few examples of Mexico-U.S. legal integration suggest opportunities for water law harmonization. The traditional Roman distinction between gradual accretion and rapid avulsion of watercourses became the basis for the International Boundary Commission's settling ownership of the Rio Bravo/Rio Grande bancos (sandbar islands). Bancos were allocated in the Colorado River on the same basis.... [T]he commission used a legal historical source, in this instance an ancestor of Mexican civil law, to fill a gap and reconcile two divergent regimes.

Colorado River Dry Delta, terminus of the Colorado River  in the Sonoran Desert of Baja California and Sonora, Mexico

Alongside the thread on early environmental law courses, people have been wondering about the first environmental law textbook. Today Peter H. Sand, Lecturer in International Environmental Law at the University of Munich, joins us for a guest post on a contender for the title (see also his comment here). Peter writes [notes are after the jump]:

The history of international environmental law as an academic topic is generally associated with the emergence of treaties and case law on specific sectors such as shared watercourses, the oceans, or – from 1900 onwards – selected wildlife species. Doctrinal attempts at identifying common (trans-sectoral) elements, and a coherent discipline of international regulation and governance in this field, did not make their appearance until well into the second half of the 20^th century, with a prevailing and near-exclusive focus on public international law.

One notable exception was the pioneering work of Karl Alexander Neumeyer (1869-1941), who approached the subject from his distinct perspective of conflict of laws, in a monumental four-volume treatise titled Internationales Verwaltungsrecht (International Administrative Law, 1910-1936).[1] His life-time vision was the development of a new unified system of rules applicable to the transnational aspects of administrative law, to match the well-established conflict rules of private international law and procedure. And in the process, as part of an effort to demonstrate the pragmatic foundations of his approach in different sectors of public administration, he also assembled and analyzed a unique compendium of contemporary legal source materials that would indeed qualify today as typical ‘transnational environmental law’.

In response to my desire to hear more about the water law treatises described in Mark Weiner's video, "Water, Paper, Law", Yale Law's Rare Book Librarian Mike Widener (featured in the video) has posted information on the books featured in the video. These include a treatise by the great medieval jurist Bartolus and other works on Italian, German, and Dutch water law.

The page below is taken from a 4-volume Italian treatise on Roman water law, published originally 1670-86. Stay tuned for more on Mike's work on these interesting books.

from Francesco Maria Pecchio, Tractatus de aquaeductu (2nd ed., Ticini Regii, [1700?]-1713) Rare Book Collection, Lillian Goldman Law Library, Yale Law School