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Book Review
| Joshua Getzler, A History of Water Rights at Common Law, Oxford: Oxford University Press, 2004. Pp. xl + 396. $99 (ISBN 0-19-826581-6).
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| This book is dense (in the good sense of the word). Packed into a single volume, Joshua Getzler provides a comprehensive history of the English common law of water, as elaborated by judges and, secondarily, by authors (principally Bracton, Coke, and Blackstone). A History of Water Rights at Common Law stands as the definitive treatment of his subject; there are no competitors in the same league with respect to sophistication or attention to detail. |
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As Getzler makes explicit at the outset, he is "preoccupied with law-making by elite judges and jurists" (7). He delivers. The book is not an economic history, social history, or intellectual history; and, unlike so much of modern legal history, it portrays through no overt ideological lens. He accepts and analyzes the cases on their own terms. This is especially limiting due to the nature of his raw materials. As Getzler observes, English jurists resolved water disputes "with near-blindness to economic models or theories," seeing their cases "as purely legal issues of precedent and conceptual coherence, or at best as pragmatic questions of fact-finding and interest-balancing" (7). The single unifying theme across the centuries is legal formalism: water law doctrine "remained intractably legalistic and casuistical, and resistant to political and economic calculation" (7). |
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This reviewer, perhaps blinded by his post-realist eyes, cannot wholeheartedly embrace the proposition that common law judges decided water law cases for the reasons they professed. On a proposition of so fundamental an order, rational proof is impossible. Instinctively, one is a believer, a skeptic, or (like this reviewer) somewhere in between. For a writer to produce formal doctrinal work, and for a reader to study it voluntarily, one must have some belief that there is merit in reading opinions. The committed skeptic must toil elsewhere. Getzler touches this point in his closing paragraph: "However quaint and open to demolition by sceptical modern observers, the secular common-law faith in legalism is resilient and valuable. The lesson is that [for] any complex system of resource allocation [to work], a strong belief both in individual rights and the consensual justice of adjudications is essential" (352). |
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The book, with six numbered chapters plus an introduction and conclusion, has three principal components. In the core, chapters 2 through 6, Getzler explains the multifarious strands of water law from the Norman invasion through the nineteenth century. The major strands, which have uneven thicknesses and lengths and often overlap, are: Roman servitudes, transmitted through Bracton; the scope of the writs of nuisance, trespass, and case; ancient rights and custom; prescription and the lost grant theory; incorporeal rights, corporeal rights, title, and seisin; acquisition by prior appropriation; the nuisance principle of sic utero tuo ut alienum non laedus; natural rights and natural flow; reasonable use; distinctions among natural watercourses, artificial bodies of water, and subterranean waters; and the doctrine of appurtenancy as a limit on the assignment of water rights. The macro picture Getzler paints is not one of conceptual consistency or linear evolution through well-defined stages. Rather, it was conceptual chaos as courts wrestled with various ways to rationalize private claims to flowing water. For the better part of a millennium, until the 1870s, English water law "presents a striking complexity and confusion of common law entitlements" (43). Only late in the nineteenth century, where his book's timeline ends, does he find a coherent riparian theory founded upon reasonable use, built by judges using a base of English precedents and new imports (civilian thinking, from Europe, and nascent American water law, pronounced by Justice Story and Chancellor Kent). |
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The second component is a prelude to the core. Chapter 1, "The Exploitation of Water in Historical Perspective," briefly describes the water use and water technology from the ancient world through the Industrial Revolution. Water power played a critical role in England. As far back as the Domesday Book, England had 5624 watermills (one mill for every 50 households). Getzler points out that water power was the primary source for English industry (textiles, mining, and metals) until late in the nineteenth century. This chapter assists the reader in visualizing the technological and economic settings for the litigated cases described in chapters 2 through 6. |
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The Introduction and Conclusion comprise the last, significant component. They function as bookends for the formal doctrinal history, giving the work a broader jurisprudential interest. Here Getzler positions his work within the field of water law history/analysis and the broader province of legal history. He trenchantly criticizes the water law scholarship of Richard Epstein, Morton Horwitz, and Carol Rose. His thesis is positivist; with respect to Horwitz and Rose, he claims that both discounted the power of law, as a self-contained logical system, to control its destiny. Formal legal reasoning, rather than raw economic or political forces, sometimes matters—and in this context, substantially mattered. The general reader will focus her efforts on the "bookend" chapters. Indeed, the lengthy Conclusion can be read usefully as a free-standing essay. |
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Chapter 4 analyzes the many statements in Blackstone's Commentaries concerning water law, also explaining how those ideas fit with, and follow from, Blackstone's basic premises. This chapter can also stand alone. Coupled with a significant section in Chapter 5 dealing with subsequent judicial acceptance of Blackstone's propositions, this material will be attractive to the many students who have a special interest in Blackstone's work and legacy. |
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| James Charles Smith
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| University of Georgia School of Law |
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