David Schorr, Tel Aviv University Buchmann Faculty of Law, has posted Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World, which is forthcoming in Clio@Thémis 2021:
This article, written for a forthcoming issue of the journal Clio@Thémis on "Nature as a Norm", examines the water law of jurisdictions from across the "common law world" in the nineteenth and early twentieth centuries, a period in which increasingly intensive uses of water and watercourses around the world brought conflicts over water law into court with relative frequency. An issue that arose in a variety of contexts was the degree to which the rules of the common law of England with regard to water could or should be applied in territories characterized by environmental conditions that often differed radically from those found in England. A legal regime that seemed unremarkable in the home country often seemed a poor fit for the conditions of other, far-off lands, leading to friction between the law and the lived life of the colony and its natural environment.
The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. They did so consciously, explicitly granting nature normative force. It will also look at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. Perhaps surprisingly, this discourse in far-flung jurisdictions about the potential legal force of local environmental conditions was at the same time a global one: Arguments were made not only about the differences between local and British nature, but also about the similarities between the natures of territories very distant and different from each other. Both types of environmental comparisons were seen to have normative significance.