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

Environmental dispute resolution 4,500 years ago

Fragment of the Stele of the Vultures, c. 2450 BCE

The latest Yearbook of International Environmental Law has an interesting contribution by Peter Sand, "Environmental Dispute Resolution 4,500 Years Ago: The Case of Lagash v Umma". Sand begins:

Legal historians sometimes contend—albeit tongue-in-cheek—that ‘environmental law has no history’ or that the origins of international treaty law in this field, at any rate, hardly date back more than two centuries. It is true of course that the very term ‘environmental law’ etymologically did not come into use, in any language, until the mid-twentieth century. Yet it is equally true that the earth’s natural resources have been a subject of claims for human exploitation and societal management (including law) for millennia before, as this brief note will aim to illustrate.

(The first quote is from my own chapter in the Oxford Handbook of Legal History, "Historical Analysis in Environmental Law". Let me note that I meant this contention not tongue-in-cheek but in the sense more felicitously captured by Éric Naim-Gesbert, cited by Sand: environmental law has a past without a history. See the abstract of my chapter.)

Sand continues (footnotes omitted):

The Musée du Louvre in Paris and the British Museum in London hold tangible evidence of the world’s first known legal agreement on boundary water resources—that is, the Mesilim Treaty, which was concluded in approximately 2550 BC between the two Mesopotamian states of Lagash and Umma—‘the oldest international treaty of which there is a reliable record.’ The terms of the treaty have been preserved in cuneiform inscriptions on limestone cones and a ‘stele’ commemorating Lagash’s victorious battle enforcing the interstate agreement....

Mesilim (or Me-salim, born circa 2600 BC) was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonial’ position in the loose alliance of small neighbouring Sumerian states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon. In that capacity, he served as arbiter in a protracted dispute between the two city states of Lagash and Umma, and it is the text of the arbitral award attributed to him, accepted under oaths by the litigants to their respective deities, that then appears as Mesilim’s rules in the cuneiform inscriptions preserved. The main subject of the award was the inter-state boundary between the two states, alongside a major irrigation canal.... The dispute concerned both water resources (with Umma upstream and Lagash downstream) and a strip of adjoining agricultural land in the fertile Guedin valley... that was cultivated by Umma under lease from Lagash for barley production.

Sand goes on to describe the breakdown of the treaty and compare it to the modern Lake Lanoux Arbitration and ensuing agreements. More on this in an earlier guest post by Sand here.

The Roman public trust doctrine

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. 

Water and Waterways Management in the Roman Empire Workshop

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

Streams of life and strife

Table IX of the Lex Irnitana – Museo Arqueológico de Sevilla
(image: Red Digital de Colecciones de Museos de España, http://ceres.mcu.es)

Last week Otto Vervaart's always learned Rechtsgeschiedenis Blog featured a post on water law: "Streams of life and strife: Water as a legal matter in Roman law". Some highlights:

The project Roman Water Law at the Freie Universität and the Humboldt Universität in Berlin helps to look at regulations concerning water and its uses according to an interesting scheme. Legal attention to water has a very long history.

*****

The core of the virtual collection is a combination of legal sources found in the Corpus Iuris Civilis, three individual leges (laws) and the Codex Theosodianus with texts from Roman authors who touched the subject of water. The results are 572 entries with a Latin text and English translation to which one of ten newly defined categories have been assigned.

The harvest for Roman laws in the technical sense, leges approved by the senate of the Republic, may seem meagre with just three laws. However, one of them, the Lex Flavia Irnitana from AD 91, was only found in 1981. The fragments of six out of originally ten bronze tables are now held at the Museo Arqueológico in Seville {Hispania Epigraphica, no. 5058). This law, dated around 91 BC, is the most complete surviving example of a Lex Flavia, a municipal law. Chapter 82 of the Lex Irnitana deals with drainage and creating and changing roads, paths, canals and sewers, for which only the duumviri, a pair of magistrates elected for one year, are authorized if there is a municipal decret for their actions.

*****

The core of the project are the classifications added to each entry. There are ten main types of classes, starting with definitions (44), followed by

Right to use water
Constructions to use water – Process of construction and maintenance
Legal protection of water use
Urban praedial servitudes of water
Regulation of damages and prevention of damage caused by water
Consequences of changes caused by water
Water as a route of transport
Water as a border
Buildings at banks, coasts and beaches 

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

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]

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

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 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.

Legal traditions and environmental factors in water law

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.

More on early modern water law treatises

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

Dellapenna and Gupta on the evolution of water law

Joseph Dellapenna and Joyeeta Gupta have posted to SSRN "The Evolution of Water Law Through 4,000 Years", a chapter from the forthcoming Sovereignty and the Development of International Water Law. The abstract explains: