Fresh Water in Roman Law: Rights and Policy

Abstract

Fresh water came from a variety of sources, streams and springs as well as aqueducts. Much of the Roman law on fresh water concerns its supply, regulating rights to use it with a variety of legal institutions from public and private law (e.g. ownership, servitudes, interdicts). The study of fresh water has usually followed the legal categories, segregating the public water supply from water that was private property, and consequently segregating different types of evidence. In this paper varied evidence is analysed using the ‘bundle’ approach, an analytical framework from legal scholarship on rights in the environment, in which water rights are not monolithic but are represented by component rights, including rights of access, withdrawal, management, exclusion and alienation. Analysing component rights in fresh water reveals significant continuities in the Romans' regulation of it and the impact of this regulation. Although there was no centralized water administration in the early Empire, Romans took a systematic approach to regulating fresh water based on consistent working principles and policy priorities.

Retrospectives: Tragedy of the Commons after 50 Years

“…One set of writers even supposed that Hardin had "documented more fully" the problem of overexploitation(Balachandran, Fisher, and Stanley 1989, 261), which is obviously an exaggeration: Hardin had given no more than a few examples. Furthermore, despite Hardin's depiction, commons existed and were successfully managed in various ways in medieval England and many other parts of the world for a very long time(Dahlman 1980;Buck Cox 1985;Bannon 2017).…”

The tension between state ownership and private quasi‐property rights in water

“…Ancient Roman water law distinguished between public (water belonging to a public body), private (exclusive and unlimited water use), and common water ownership (waters not owned by anybody) (Caponera, 1992; Dellapenna & Gupta, 2008). A re‐examination of Roman law shows that rights of ownership were separated into different bundle‐of‐rights, which differed between different water bodies and instruments (Bannon, 2017; Quintavalla, 2020). Traditional civil law classified water into private waters and public waters (Caponera, 2007; Schorr, 2017).…”

“…Water property rights include a bundle‐of‐rights—including for example, the right to use, sell/alienate, inherit, manage, commercialize, exclude, store, divert/restrict/alter water flows, use sewage water for irrigation, and/or discharge wastes into watercourses. The bundle ranges from a minimum right of use, to having all the rights in full, including ownership rights (Bannon, 2017; Honoré, 1961; Saxer, 2010; Waldron, 1988; Zellmer & Harder, 2008). In the case of state water ownership, the state owns all the rights in the bundle.…”

Water Theft Maleficence in Australia

“…Similarly, the Hittite Laws (1650-1500 BC) indicate that if water were stealthily taken or diverted from an irrigation ditch, the perpetrator must pay compensation (Kornfeld 2009;Melchert 1979;Ohlig et al 2002). The Lex Rivalicia (116 BC) and Lex Quinctia de aqueductibus (8 BC) were some of the more significant provisions of Roman water law to acknowledge water theft more directly, thus, suggesting it was a critical issue (Bannon 2017;Caponera and Nanni 1992).…”