Abstract
Most legal institutions of modern civil law have their origins, at least in principle, in Roman law. This can also be seen in cases and legal reasoning related to the environment since certain rudiments or precursors of modern environmental law can be found in the writings of classical Roman jurists. Nevertheless, it would be an overstatement to speak of Roman environmental law. The focus of Roman classical jurists was on the protection of concrete property rights, mainly in neighborhood contexts. Only a few cases show that the underlying motive of legal argument was the protection of public interest, which brings these cases closer to the idea of modern environmental law.
I Environmental law
Environmental law as ‘the body of laws that require the assessment of the impact on the natural and human environment caused by human activity, as well as the regulation of conduct with negative environmental impact, typically by regulating, modifying or prohibiting certain activities understood to be causes of the prohibited impact’1 is a relatively new area of law that has existed since the 1960s. It was during that time2 that the interest in the environment, its preservation and its legal protection emerged.3 Since then, important environmental laws have been enacted.4 The United Nations Framework Convention on Climate Change,5 which entered into force on March 21, 1994 and was ratified by 198 countries, made the development of legal rules to protect the environment a top priority.
Although environmental problems, and thus attempts to regulate them, are relatively new, people in the past have already cared about the environment and tried to prevent its deterioration, especially in the context of property protection. However, since both the knowledge of the long-term consequences of various interferences with the environment and the actual possibilities of destroying it were quite modest until the industrial and, above all, the chemical and green revolutions, legal protection was limited to actions and omissions that resulted in concrete damage and posed a danger to the immediate environs, especially to neighbors.
The Romans endeavored to curb them, especially by limiting the unrestricted exercise of the right to property. Such legal reactions, together with the attempts to regulate the relationship between neighbors and to ensure the predominance of public interest, can be seen as the first beginnings of environmental law. These legal regulations primarily concerned neighborly relations and predominantly affected the landowner. They were introduced partly in the public interest and partly in the interest of the neighbors. Because of these legal rules some authors talk about environmental protection in Roman law.6 Although it is true that there have been some rules in Roman law that served the environment in the modern sense of the word, it would be wrong to talk about Roman environmental law. The purpose of such legal rules was not to protect the environment, but to protect property rights, and only exceptionally public interest.
Because of new technologies and materials, but especially because of the amount of pollutants that modern society produces, and therefore contaminates and destroys our environment, the individual's impact on the environment is no longer limited to disruptive interference with the property rights of neighbors or with the immediate environs. It is assumed that also the activities of every individual damaging the environment contribute to the general environmental threat and as a result to climate change, the destruction of the soil, biodiversity, etc. That is why it is believed that appropriate legal regulations should also make the actions of individuals more environmentally friendly and climate-neutral. Activists from various groups, especially the so-called ‘last generation’7 even postulate that everyone has a duty to use civil disobedience to force politicians to protect the environment more effectively.
The changed circumstances also require an adjustment of the relevant legal rules and a change in the nature of the legal provisions intended to prevent the destruction of the environment. Nowadays, attempts are being made to create legal norms which would reduce or even prevent the negative effects of human activity on the environment, primarily through the standardization of limit values.
The corresponding action of the legislature is necessary.8 One of the problems related to environmental damage is that very often it is the overall extent, and not so much the harmfulness of individual actions, that destroys the environment and reduces or even prevents its natural regeneration. Environmental damage is often caused by cumulative impact of causes, which many emitters produce independently of one another. Above all, many people do not fully understand that their seemingly innocuous and necessary activities, such as car driving, (excessive) washing, using plastic packaging, etc., contribute to the destruction of the environment and that these activities or the way certain things are used should be restricted by legal regulations. Due to a lack of insight modern consumers often do not understand why they should limit their consumption patterns for the sake of the environment. Therefore, it would be naive to expect a spontaneous change in mindset. Consequently, most of the responsibility lies with the legislature. The legislator's responsibility in this case means, above all, being decisive in taking effective action by taking into account scientific findings when formulating a long-term strategy.
However, we live in a real world in which consumers are also voters. In the future they want to continue to live as they have lived until now. In addition, there are various interests delaying or undermining urgent action to protect the environment. Instead of bravely tackling the causes, we only confront their consequences half-heartedly. As a result, reactions to environmental problems are limited to attempts to lessen the consequences without addressing their causes (except verbally).
II The period of Roman law
As already mentioned, the technical possibilities to permanently endanger the natural environment were unknown in Roman times. Roman environmental sins could only have local impact. However, that does not mean that their consequences were any less lasting. So, e.g., during the archaeological excavations in Trier, increased levels of lead, copper and mercury were discovered in the soil.9 One can assume that similar results would also be obtained from soil analyzes in other major Roman cities. Nevertheless, it is likely that in antiquity the greatest and most lasting harmful interventions in the environment were caused by colossal building projects, the introduction of monocultures and deforestation. Because of the relatively small population and the state of technology at the time these impacts remained relatively small and limited in space. They could not cause a broader and more lasting damage and destruction that would threaten the survival of future generations or even the continued existence of the entire planet.
For this reason, the reaction of Roman law to environmentally damaging activities was limited to interferences that had a disruptive or harmful effect on neighbors and their immediate surroundings. Yet, if one compares the relevant cases dealt with by Roman jurists with the areas of modern environmental law, one can discover certain - and in some respects surprising - parallels. As already mentioned, basic differences remain; in particular, the scope of the consequences, the subject affected and above all, the complete absence of awareness that it is the environment that needs protection and not just the property or the owner. Lawyers who were not used to dealing with such problems saw property as the object of protection. Caring for the environment was not a part of their thinking and attention. Nor was the natural environment a concept they were familiar with. Therefore, no effort was made to protect the environment as such because such a term did not yet exist as an independent object of legal protection. It needs not be emphasized that the Roman jurists limited themselves to solving specific cases and that most of the legal remedies intended to prevent such interventions were created by the Roman praetor.
The Roman legal sources contain texts that relate to the following areas of today's environmental law:
Air pollution
Soil degradation and endangerment of seeds
Water contamination
Water law and wastewater
Landscape protection
1 Air pollution
The technological capabilities of ancient society did not allow for broader and longer-term air pollution. Nevertheless, there were cases of impairment. For example, the Roman legal sources mention the problem of the disturbing penetration (immissio) of smoke or steam from a bath or a cheese factory onto the neighboring property.
Such an immission was considered inadmissible, and the affected neighbor had the right to prohibit it and could sue against it. However, problems of this type could be avoided by creating an easement allowing the immissions. In his report on an opinion given to a certain Cerellius Vitalis by the classical jurist Titius Aristo, who worked at the turn of the 1st to the 2nd century, the late classical jurist Ulpian writes:10
Ulp. D. 8, 5, 8, 5: Aristo Cerellio Vitali respondit non putare se ex taberna casiaria fumum in superiora aedificia iure immitti posse, nisi ei rei servitutem talem admittit. … | Aristo states in an opinion given to Cerellius Vitalis that he does not think that smoke can lawfully be discharged from a cheese shop onto the buildings above it, unless they are subject to a servitude to this effect, and this is admitted.10 |
The owner had to tolerate the intrusion of smoke, water, etc. from the neighboring property not only if there was a corresponding easement, but also if it did not exceed the usual level. It goes without saying, that the ban on immissions was inspired by their disruptive impact on neighbors and not by concern for the environment.
Aristo's report referred not only to smoke, but also to other disruptive interference from the higher-up neighbor. In this context Ulpian wrote:
Ulp. D. 8, 5, 8, 5: Idemque ait: et ex superiore in inferiora non aquam, non quid aliud immitti licet: in suo enim alii hactenus facere licet, quatenus nihil in alienum immittat, fumi autem sicut aquae esse immissionem: posse igitur superiorem cum inferiore agere ius illi non esse id ita facere. Alfenum denique scribere ait posse ita agi ius illi non esse in suo lapidem caedere, ut in meum fundum fragmenta cadant. … | He (i. e. Aristo) also holds that it is not permissible to discharge water or any other substance from the upper onto the lower property, as a man is only permitted to carry out operations on his own premises to this extent, that he discharge nothing onto those of another; and he adds that one can discharge smoke just as well as water. Thus, the owner of the upper property can bring an action against the owner of the lower, asserting that the latter does not have the right to act in this way. Finally, he notes that Alfenus tells us that an action can be brought, alleging that a man does not have the right to hew stone on his own land in such a way that broken pieces fall on the plaintiffs ground. … |
From Alfenus's opinion one can see that discharging of physical particles on the adjacent land was not permitted, and that in such a case there was no usual amount which was permissible and had to be tolerated by the neighbor.
Despite the principle that one was not allowed to burden someone else's property with immissions, the problem - as today - was the boundary between the permitted and unauthorized disruptive exercise of property rights or the extent and intensity of the interference that the neighbor had to tolerate. In this context, the same Ulpian wrote:
Ulp. D. 8, 5, 8, 6: Apud Pomponium dubitatur libro quadragensimo primo lectionum, an quis possit ita agere licere fumum non gravem, puta ex foco, in suo facere aut non licere. et ait magis non posse agi, sicut agi non potest ius esse in suo ignem facere aut sedere aut lavare. | A doubt is raised by Pomponius in the forty-first book of his Readings, as to whether a man can bring an action alleging that he has a right or that another has no right to create a moderate amount of smoke on his own premises, for example, smoke from a hearth. He says that the better opinion is that such an action cannot be brought, just as an action cannot be brought to maintain that one has a right to light a fire or sit or wash on one's own land. |
From this we can conclude that the Romans considered the smoke from the neighboring property to be a nuisance only if its quantity exceeded the usual level.11 However, the fact that the right to discharge smoke to the neighboring property could be created as a special easement suggests that not only the quantity but also the density of the smoke or the material the burning of which produced it, as well as the distance of the fire played a decisive role. In his report mentioned above, Aristo spoke of the ‘smoke of a cheese shop’. From this it can be concluded that, in addition to the quantity and density or even toxicity of the smoke, its temporal dimension also played a role. One can assume that the fire in a cheese shop or in a bath burned more or less all day and the smoke was therefore constantly discharged onto the neighboring property.
In addition to smoke, steam could also have a disturbing effect. Pomponius, for example, advocated the use of legal remedy in the case ‘of steam from a bath, where a certain Quintilla had built an underground passage which ran into the property of Ursus Julius’. Yet ‘it was held that a servitude to this effect could be created’.12
However, not all air pollution can be viewed as an environmental problem. If e.g. the owner of the lower-lying building made smoke in order ‘to fumigate his neighbor's buildings (fumigandi causa),13 it was certainly not a problem of environmental law, but rather an act of “friendliness”, i.e., harassment between the neighbors. Something similar could also be said in the event that someone drove away or even killed someone else's bees by fumigation.14
However, smoke was not the only cause of air pollution. Ulpian reports on the operations that began by a usufructuary polluting the atmosphere of the land (quae instituit usufructuarius caelum corrumpant).15 It is not clear what the nature of the installations he set up was, and to what extent the air in the field was polluted as their result. It may be assumed that the usufructuary had built a waste disposal facility on the property, where the waste rotted and polluted the air. In Ulpian's opinion, in such a case the usufructuary was not exercising his right as a careful man would (viri boni arbitratu).
Ulpian also mentions a special type of air pollution. He writes about the case in which a place becomes unhealthy only because of a bad smell (odore solo locus pestilentiosus fiat).16 Unfortunately, he does not mention what kind of smell it was, where it came from, or how its intensity was measured and judged. He quotes Nerva Father, who in such a case probably advocated the use of the interdict “that nothing be done in a public place or way” (ne quid in loco publico vel itinere fiat). He says that ‘this does (not) justify recourse to the interdict’ (non esse ab re de re ea interdicto uti).17 This prohibitive interdict ne quid in loco publico facias inve eum locum immittas could be used if an act or immission caused damage to someone (qua ex re quid illi damni detur).18
Another passage of Ulpian indicates that the term pestilentiosus (pestilential, unhealthy) may refer to the smell emanating from an uncleaned cloaca. According to Ulpian, the praetor used interdicts to ensure that the cesspools were cleaned and repaired because, as he wrote, “drains choked with filth threaten pestilence of the atmosphere and falling down of buildings, if they are not repaired”.19
2 Soil degradation and endangering the seed
The Romans were aware that maintaining arable land was essential for their survival. Already in early times, they punished owners who neglected their land. Pliny the Elder reports that negligent land cultivation at the time of the Republic was judged a disgraceful act (probrum) and was punished by the censors.20 Cato reports that in his time it was considered the highest form of commendation to praise a man by saying he was a good farmer and a good husbandman.21
If anyone had allowed his land to run to waste and was not giving it sufficient attention, if he had neither ploughed nor weeded it, or if anyone had neglected his orchard or vineyard, such conduct did not go unpunished, but it was taken up by the censors, who reduced such a man to the lowest class of citizens (aerarii).22
Although this gradually changed with the changing economic circumstances, the attitude towards the land remained more or less unchanged. Neglecting cultivation was still considered irresponsible. Thus, when leasing land, the tenant farmer should do everything in accordance with the terms of the lease, and above all to “ensure that he carried out the agricultural work at the right time so that he did not degrade the soil by cultivating it at the wrong time.”23
Soil degradation, i.e., the deterioration of the functioning of the soil's ecosystem, occurred in Roman antiquity primarily due to excessive or neglected fertilization and erosion. The Roman classical lawyers mainly mention the former. Ulpian, for example, reports on the possibility for the owner to apply the interdict against force and stealth (quod vi aut clam) against anyone who ‘scatters a pile of dung over a field that is already rich … because wrongful damage has been done to the land.’24
The soil could also be degraded or destroyed by using too much water or by adding unsuitable water. Trebatius, for example, reported on someone who allowed hot water to flow from the bath onto the neighboring property. The neighbor, whose field was damaged as a result, could not bring an action against him to ward off rainwater (actio aquae pluviae arcendae), because according to Ulpian (whereby he contradicts Trebatius' opinion), warm water was not rainwater.25 Unfortunately, the jurist does not say what remedy the party who sustained harm could use in this case.
However, according to Ofilius, if someone ‘who previously watered his field at a fixed time of the year makes a meadow there and starts to cause damage to his neighbor by persistent irrigation’, the neighbor could neither sue him for imminent damage (actio damni infecti), nor sue him to ward off rainwater (actio aquae pluviae arcendae), unless he had leveled the ground and this change caused the water to flow more quickly onto the neighbor's property.26 The jurist does not say whether the neighbor was allowed to use the actio in factum or an interdict.
One of the problems of modern agriculture is the spread of invasive plant species. The invasive neophytes invade semi-natural habitats and threaten the native plant varieties there. Depending on the plant species and habitat, this causes different problems. Neophytes can endanger human health, they displace native species, imported weeds in agriculture in particular cause economic problems and increase the consumption of herbicides, they provoke changes to the habitat and a loss of diversity, etc. Nowadays, various regulations and measures are being taken to prevent or contain this and to remedy the negative consequences.
Mutatis mutandis, a germ of such regulation could already be found in Roman law. Ulpian quotes Celsus, who discusses the case of someone scattering seed of tares or wild oats in another man's crops and pollutes them (si lolium aut avenam in segetem alienam inieceris, quo eam tu inquinares).27 In such a case, the injured party had various options: The owner or, if the land is leased, the tenant, can ‘bring the interdict against damage caused secretly or by force (quod vi aut clam), but he can also proceed with an action based on the facts of the case (actio in factum) under the lex Aquilia.’ However, he could not sue with the actio legis Aquiliae, ‘for it is one sort of damage to spoil or alter something so that the lex Aquilia applies and quite another to add something that it is a nuisance to separate, but without any other change being made’.28
In connection to a contract of sale, Paul and Ulpian mention a plot of land that is barren (sterilis) or unhealthy (pestilens).29 They do not indicate whether this was its natural state or whether it was caused by human activity. A rescript of the emperors Diocletian and Maximian also mentions that the land sold was a poisonous one (pestibilis fundus), i.e., that poisonous or deadly herbs grew on it (pestibulas vel herbas letiferas habens).30 From this we can conclude that the state of the soil was not a result of human activity but represented its natural state. This was probably also the case in the instances mentioned above by Paul and Ulpian. Therefore, these cases do not make our search for the environmental elements of Roman law any more successful.
3 Water contamination
One of the biggest problems related to modern environmental protection is water pollution and excessive water consumption.31 In addition to the nature of the pollutants, the main difference between ancient and modern water pollution is probably the fact that modern water pollution is a consequence of what is now accepted to be normal water consumption. Households as well as agriculture and industry use chemical agents that contaminate water due to their composition and, above all, their quantity. This happens via facti as a side effect of a usual activity that is carried out without the intention of causing any harm to others. Who, for example, when washing a car or washing dishes, thinks about the possible negative consequences for the environment!
The Roman legal sources, on the other hand, mention water contamination mainly in connection to the question of whether there is a right to prohibit it, whether this gives rise to a claim for damages or whether the perpetrator polluted the water with the intention of harming someone.
One of the main problems related to water pollution in ancient Rome was the use of lead in water pipes and vessels. Modern research has been able to demonstrate significantly increased lead concentrations at the mouth of the Tiber, which discharged sewage from Rome into the sea.32 Although high levels of lead affected the environment, the Romans were unaware of this problem and therefore did not endeavor to combat or to regulate it.
Aside from lead pollution, most of the water contamination probably came from sewage that was discharged through sewers into rivers, lakes, and various cesspools. Ulpian defines the cloaca as ‘a hollow place through which certain waste matter should flow« (locus cavus, per quem colluvies quaedam fluat)’.33 And although dirt was inherent in a sewer, the attention of the Roman praetor and lawyers was not on water pollution, but on cleaning and repairing the sewers.34 The fact that in this endeavor also health and environmental considerations were involved is evident from an Ulpian fragment:
Ulp. D. 43, 23, 1, 2: Curavit autem praetor per haec interdicta, ut cloacae et purgentur et reficiantur, quorum utrumque et ad salubritatem civitatium et ad tutelam pertinet: nam et caelum pestilens et ruinas minantur immunditiae cloacarum, si non reficiantur. | The praetor has taken care by means of these interdicts for the cleaning and the repair of drains. Both pertain to the health of civitates and to safety. For drains choked with filth threaten pestilence of the atmosphere and ruin, if they are not repaired. |
The repair and cleaning of the drains was in the public interest (cloacarum refectio et purgatio ad publicam utilitatem spectare videtur)35 because it affected public welfare.
This task was so important that a neighbor was even allowed to enter the neighboring house to clean the sewer and, if necessary, take up the paving to clean the drain (ut in vicini aedes veniat et rescindat pavimenta purgandae cloacae gratia). However, the previous status had to be restored afterwards.36
The praetorian interdict enabled cleaning and repairs of private sewers, while public drains were placed under state care.
The use of water was regulated quite precisely in Roman law. Depending on the time at which the water was drawn and used, Roman law distinguished between different types of water: aqua aestiva was allowed to be used in summer, aqua cottidiana every day, aqua diurna only during the day and aqua nocturna at night.37 The praetor created several interdicts with which he regulated the private use of water. Justinian's Digest mentions some of them: interdict of the daily and summer water (de aqua quotidiana et aestiva),38 interdict of the canals (de rivis),39 interdict of the springs (de fonte),40 interdict of the drains (de cloacis),41 etc.
Some Digest fragments also mention the contamination of the water. Regarding the interdictum de aqua quotidiana et aestiva, Ulpian quotes the following opinion of Labeo:
Ulp. D. 43, 20, 1, 27: Labeo putat per hoc interdictum prohiberi quem, ne quid in illo fundo faciat fodiat serat succidat putet aedificet, quare ex re ea aqua, quam ille hoc anno per fundum tuum sine vitio duxit, inquinetur vitietur corrumpatur deteriorve fiat: et similiter de aestiva aqua debere interdici ait. | Labeo thinks that through this interdict someone may be prohibited from doing, digging, sowing, cutting down, and pruning in such a farm, where by so doing he may pollute, vitiate, spoil, or worsen the water which such a one drew off through your farm without wrongdoing. And he says that a similar interdict is due for summer water. |
We can see that any activity resulting in the contamination or deterioration of water could be prohibited. It is, however, not possible to determine what exactly happened in the above-mentioned case. We can assume that the water has become unusable or worse as a result of being mixed with harmful substances.
An idea of how this might have happened can be gleaned from an Ulpian's fragment in which he quotes Trebatius:
Ulp. D. 39, 3, 3 pr. Apud Trebatium relatum est eum, in cuius fundo aqua oritur, fullonicas circa fontem instituisse et ex his aquam in fundum vicini immittere coepisse: ait ergo non teneri eum aquae pluviae arcendae actione. si tamen aquam conrivat vel si spurcam quis immittat, posse eum impediri plerisque placuit. | It is recorded in Trebatius that someone who had a spring on his land established a fuller's shop at it and began to cause the water there to flow onto his neighbor's property. Trebatius says that he is not liable to an action to ward off rainwater. However, many authorities accept that if he channeled the water into one stream or introduced any dirt into it, he can be restrained.42 |
In the cases mentioned above, water pollution was a side effect of another activity. Yet, it could also be the result of an intentional act. For example, if someone poured something into the neighbor's well in order to pollute the water (in puteum vicini aliquid effuderit, ut hoc facto aquam corrumperet), in Labeo's opinion, he was liable under the interdict against force or stealth (quod vi aut clam).4243 What is interesting in this case is Labeo's justification. He writes that fresh water (aqua viva) appears as a part of the land, and pouring something in it was ‘just as if someone had done a work connected with water’ (quemadmodum si quid operis in aqua fecisset).
The quality of the soil also depended on its careful and regular use. So, writes Julian, ‘a man who fails to plow up an unbroken piece of land, or to plant vines, or who allows a watercourse to fall into disrepair’ is damaging the property. However, he was not liable under the lex Aquilia. Instead, in Julian's opinion, a judge was appointed “so that the usufructuary might exercise his usufruct in accordance with his decision” (ut eius arbitratu utatur).44
In extreme cases, which could be qualified as an affront contrary to sound morals and constituted an intentional violation of a person or the public, a severe punishment was usually imposed (graviter animadverti solet). Such an act was qualified as an extraordinary crime (crimen extraordinarium) and the perpetrator was punished at the discretion of the judge. As examples of such actions, Paul mentions cases when ‘a person showers another with excrement, smears him with mud and filth, defiles waters, water pipes, or a lake, or contaminates anything to the detriment of the public.’45 Regarding water contamination, it is not clear how he did it. It is also not clear what the difference would be between the contamination of the water and that of the water pipes and the lakes. Nevertheless, the concrete case seems very close to the basic idea of modern environmental law. It goes beyond the protection of individual property rights and focuses on the protection of the long-term public interest.
4 Water law and wastewater
The amount of water available was also an important problem in the management of the land. Access to water was crucial, especially in the dry areas of the Roman empire. Therefore, a landowner was entitled to sue a neighbor who had appropriated too much water to his detriment.
In water-rich areas such as Lazio, water and flash floods were a major problem. For such cases, Roman law created the aforementioned action to ward off rainwater (actio aquae pluviae arcendae).46 The landowner was entitled to use this action if his property was threatened with damage as a result of a man-made construction on another property. This happened when e.g. someone caused water to flow elsewhere than in its normal and natural course (cum quis manu fecerit, quo aliter flueret, quam natura soleret). As examples of such works Ulpian mentions letting water in, whereby the natural course of water was made greater, faster or stronger than usual (si forte immittendo eam aut maiorem fecerit aut citatiorem aut vehementiorem), or when someone narrowed its outlet and caused an overflow (si comprimendo redundare effecit). This action could not be used if the water was causing damage to the lower-lying field naturally (si natura aqua noceret).47
if someone can plow and sow without making water channels, he is liable should he lay out such channels, even though he may be held to have done so for the purpose of cultivating a field. But if he cannot sow without making water channels, he is not liable. Ofilius, however, says that it is legal to make water channels for the purpose of cultivating a field if they are all made to run in the same direction.48
ditches to drain fields count as something done for the purpose of cultivating the property, but that ditches should not be constructed for the purpose of causing water to flow in one stream since one must only improve one's field in such a way as not to reduce the quality of one's neighbor's field.50
The reason for this is, that ‘no one can be held liable on this account, since no person is forbidden to profit himself as long as he harms nobody else in so doing.’51
Labeo, quoted by Ulpian, describes an interesting illustration of the complexity of this relationship between neighbors:
Ulp. D. 39, 3, 1, 23: Denique ait condicionibus agrorum quasdam leges esse dictas, ut, quibus agris magna sint flumina, liceat mihi, scilicet in agro tuo, aggeres vel fossas habere: si tamen lex non sit agro dicta, agri naturam esse servandam et semper inferiorem superiori servire atque hoc incommodum naturaliter pati inferiorem agrum a superiore compensareque debere cum alio commodo: sicut enim omnis pinguitudo terrae ad eum decurrit, ita etiam aquae incommodum ad eum defluere. si tamen lex agri non inveniatur, vetustatem vicem legis tenere. sane enim et in servitutibus hoc idem sequimur, ut, ubi servitus non invenitur imposita, qui diu usus est servitute neque vi neque precario neque clam, habuisse longa consuetudine velut iure impositam servitutem videatur. non ergo cogemus vicinum aggeres munire, sed nos in eius agro muniemus: eritque ista quasi servitus, in quam rem utilem actionem habemus vel interdictum. | Next he says that specific regulations have been imposed by arrangement on certain categories of field, so that, for example, where there are large watercourses in a field I can have dams and ditches, even on your field, but that if no regulation has been imposed affecting a given field, its natural state must be preserved and a lower field must always be under servitude to a higher one, this inconvenience being something that a lower field must suffer vis-a-vis a higher one as a matter of nature and which is compensated by other advantages; for just as all the richness of the soil tends toward the lower field, so does the inconvenience of the downward flow of water. Where, however, no regulation relating to the field in question is to be discovered, he says that established custom takes the place of such regulation. For in the case of servitudes as well, of course, we follow the same rule, that is to say, that where it is discovered that no servitude has been imposed, the person who has for a long time acted as though there were a servitude and has done so neither by force nor precario nor secretly, he is regarded as having a servitude imposed quasi-legally by reason of prolonged custom. Consequently, we will not compel the neighbor to construct dams but will construct them ourselves on his land, and this will count as a sort of servitude in respect of which we will have the right to an actio utilis in rem or an interdict. |
The action to ward off rainwater (actio aquae pluviae arcendae) could only be used ‘if rainwater, or an existing body of water swollen by rain, causes damage, provided that it does not do so in the nature of things, but because of the carrying out of a piece of work and that work was not carried out for the purpose of cultivating a field’ (si aqua pluvia vel quae pluvia crescit noceat non naturaliter, sed opere facto, nisi si agri colendi causa id factum sit).52 Therefore, the action could not be used if the cause of the damage was the nature of the site (ipsius loci natura) and not the water in its natural course. In such a case, according to Ulpian, one could say that it is not the water but the nature of the site that caused the damage (non aqua, sed loci natura nocet).53
Likewise, the action to ward off rainwater was not applicable if someone diverted a torrent (flumen torrentem) to stop the water reaching him, and due to this change the neighbor suffered damage as a result. The neighbor could not sue him if he did not do this with the intention of harming him, but only to prevent damage to himself (si modo non hoc animo fecit, ut tibi noceat, sed ne sibi noceat).54
The same also applied in a reverse situation when someone while digging on his own land, diverted or cut off his neighbor's water supply. In such a case, writes Marcellus, no action, not even the action for fraud (actio doli), can be brought against him. The neighbor could only sue him if he acted with malicious intent. The injured party had to prove that the neighbor cut off water supply with the intention of harming him (animo vicino nocendi).55
water which has its sources on your land bursts onto my land and you cut off those sources with the result that the water ceases to reach my land, you will not be considered to have acted with force, provided that no servitude was owed to me in this connection, nor will you be liable to the interdict against force or stealth (quod vi aut clam).56
We can see that the owner whose property in principle extended from hell to heaven, when managing his property was not obliged to take into account the interests and benefits of his neighbor, as long as these interests have not been made the content of an easement in favor of the neighbor.
As one can see, the property-focused Roman mindset was quite distant from modern ecological thinking.
The action to ward off rainwater (actio aquae pluviae arcendae) could not be used when the rainwater caused damage to a building. In such a situation, however, an action could be brought to deny the right of eavesdrip or the flow of water onto one's property.57
Special legal rules applied to rivers. Romans tried to secure free shipping, use of port facilities, free access to a river, etc. For this purpose, the praetor issued several interdicts. According to one of them, nothing could be done in a public river or on its banks, which would make shipping and the port or anchorages worse.58 By another interdict, the praetor forbade anything to be done in a public river or on its banks that would cause the water to flow otherwise than it did the previous summer.59 This interdict was not about changing the volume of the water, but to the manner and direction of its current. Therefore, according to Ulpian ‘someone is liable under the interdict if what he has done changes the current by making the water deeper, or narrower and hence swifter, to the inconvenience of the neighborhood’.60
Other regulations served to maintain, fortify and improve the river banks (munire ripam). With the interdict on building-up a bank (interdictum de ripa munienda) the praetor forbade the use of force against anyone who was doing a work in a public river or on its bank for the purpose of protecting the bank or the adjoined field, provided that this did not make the navigation worse.61 The interdict could also be used to demand a cautio or security for future damage (de damno futuro) from the person doing a work in a public river. The cautio or security had to be given for ten years ‘at the discretion of an upright man.’62 According to Ulpian security was given to neighbors, ‘including those who have possession on the other side of the river’.63 In Labeo's opinion, an analogous interdict (interdictum utile) “that no force should be used to prevent the removal and demolition of work done in a river channel or bank to impair its course, and the cleaning and restoration of the channel at the discretion of an upright man.”64
If something similar was done on the seashore, one could use the interdict “to prevent anything being done in the sea or on the shore by which the anchorage, landing, and passage of a boat is made worse.”65
The Roman regulation of this area of law appears to be more similar to today's environmental law. It not only served to protect property, but also took into account the wider interests and needs of the community.
5 Landscape protection
An important aspect of environmental law is the preservation of cultural landscape. However, if we consider that the entire Roman Empire, at the beginning of our era, only had about 50 million people, and that the technical possibilities of destroying cultural landscapes were very limited at that time, one can understand that such a concern was more or less unknown to Romans.
Despite this, they visibly changed the cultural landscape around the more densely populated towns through colossal construction projects, through deforestation and the introduction of monocultures.66 All the same, we can say that they did not (manage to) destroy the landscape.
If we try to find some legal norms in Roman law that were aimed at preserving the cultural landscape, we can, with a certain degree of imagination, perhaps find them in the right to prohibit the owner of a building to build higher over a certain limit. Such a right could be created as urban servitude altius non tollendi.67
In the same category could also be placed the creation of a servitude preventing one from obstructing a neighbor's light (ne luminibus officiatur).68 One can assume that the free view (not only over the neighboring property) and the servitude preventing one from spoiling the neighbor's prospect (ne prospectui offendatur)69 also played an important role in this context.
It would be naïve, of course, to see the possibility of creating such servitudes as a proof of a broader concern of Roman lawyers for cultural landscapes. In these cases, too, the focus was more on the protection of concrete ownership and its unhindered exercise in the framework of neighboring relations than on protecting the environment in the public interest.
The same can be said for the case of cutting an immature wood intended for felling (si immaturam silvam caeduam cecidit). In such a case, the perpetrator was liable under the interdict against force or stealth (quod vi aut clam). If he has cut down a wood intended for felling when it was mature (maturam caeduam) and without causing any harm to the owner, in Celsus opinion he will have nothing to pay.70 In this case too, it was not about the cultural landscape, but about the property.
6 In conclusion
After this brief overview of some typical fragments from the writings of Roman classical jurists, we can conclude that environmental law in the modern sense of the word did not exist in Roman times. Because the dimensions of today's environmental problems were unknown at the time, the solutions remained at the level of the problems that Roman lawyers were facing and trying to solve. Nevertheless, it is possible to say that, through the protection of property and limited real rights and through regulating the relations between neighbors and protecting the public interest, they developed some of the concepts and mechanisms that are still used today and have become part of modern environmental law. In this limited sense, Roman jurists created some approaches to modern environmental law. Nevertheless, it can be seen from this rudimentary overview of the relevant sources that Roman jurists were unaware of the considerations that characterize modern environmental law.
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The Wolters Kluwer Bouvier Law Dictionary, (2011) s. v. environmental law.
Marine biologist, writer, and conservationist Rachel Carson's non-fiction book Silent Spring, published in 1962, is often cited as the starting point of the global environmental movement. See: Griswold (2012).
For an overview of the environmental law in the EU see: Kingston et al. (2017), Langlet and Mahmoudi (2016), Van Zeben and Rowell (2020), Sands et al. (2018). See also Coxall and Souter (2021), link1. A comprehensive, global source of information on environmental law see at link2. See also link3. A short overview over German environmental law give Kröger and Klauß (2001).
For example, in the Federal Republic of Germany the Atomic Energy Act was passed in 1959 and the Water Resources Act was passed in 1960. Other environmental laws followed later.
See e. g. Di Porto (1988), Di Porto (1989–1990), Burdese (1989), Kupisch (1990), Musumeci (1992), Plescia (1993), Fischer (1996), Lamberti (1999), van den Bergh (1999), Sitek (2000), Wacke (2002a), Wacke (2002b), Bannon (2009), Fargnoli (2012), Fargnoli (2015), Bannon (2017), Sáry (2020), Bannon (2021) etc.
The name of the movement is associated with Barack Obama's tweet from September 23, 2014: ‘We are the first generation to feel the effect of climate change and the last generation who can do something about it catastrophe.’ See Obama (2014).
See the rulings of the European court of human rights in three cases concerning climate change: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), Carême v. France (no. 7189/21), and Duarte Agostinho and Others v. Portugal and 32 Others (no. 39371/20). For basic information see the link: “https://www.echr.coe.int/documents/d/echr/press-q-a-climate-cases-eng”.
See Trierischer Volksfreund of 25 July 1991, 7: Kopfzerbrechen über Umweltsünden der Römer. Quoted from Wieling and Di Porto (1992) 645, fn. 1. The Romans subdued Treveri, i.e. the Germanic and Celtic tribe who inhabited the lower valley of Moselle in the 1st century BC. The city of Treuorum became about 16 BC Augusta Treverorum. Since the emperor Claudius it had the rank of a colonia. After Diocletian's reform, the city was one of the capitals of the empire (286–395). Trier was one of the largest cities in the Roman Empire with a population of around 75,000, maybe even 100.000 inhabitants. Regarding the increased levels of lead in Tiber see fn. 31.
The English translations of the Digest fragments in this article are taken from: The Digest of Justinian. Translation edited by Alan Watson. Revised English-language edition. University of Pennsylvania Press, Philadelphia 1998.
A similar solution can also be found in modern law. See e. g. § 364 II of the Austrian civil Code (ABGB - Der Eigentümer eines Grundstückes kann dem Nachbarn die von dessen Grund ausgehenden Einwirkungen durch Abwässer, Rauch, Gase, Wärme, Geruch, Geräusch, Erschütterung und ähnliche insoweit untersagen, als sie das nach den örtlichen Verhältnissen gewöhnliche Maß überschreiten und die ortsübliche Benutzung des Grundstückes wesentlich beeinträchtigen. Unmittelbare Zuleitung ist ohne besonderen Rechtstitel unter allen Umständen unzulässig.) See also § 906 I of the German Civil Code (BGB - Der Eigentümer eines Grundstücks kann die Zuführung von Gasen, Dämpfen, Gerüchen, Rauch, Ruß, Wärme, Geräusch, Erschütterungen und ähnliche von einem anderen Grundstück ausgehende Einwirkungen insoweit nicht verbieten, als die Einwirkung die Benutzung seines Grundstücks nicht oder nur unwesentlich beeinträchtigt. Eine unwesentliche Beeinträchtigung liegt in der Regel vor, wenn die in Gesetzen oder Rechtsverordnungen festgelegten Grenz- oder Richtwerte von den nach diesen Vorschriften ermittelten und bewerteten Einwirkungen nicht überschritten werden. Gleiches gilt für Werte in allgemeinen Verwaltungsvorschriften, die nach § 48 des Bundes-Immissionsschutzgesetzes erlassen worden sind und den Stand der Technik wiedergeben.) or Art. 684 II of the Swiss Civil Code.
Ulp. D. 8, 5, 8, 7: Idem in diversum probat: nam et in balineis, inquit, vaporibus cum Quintilla cuniculum pergentem in Ursi Iuli instruxisset, placuit potuisse tales servitutes imponi.
Iav. D. 47, 10, 44: Si inferiorum dominus aedium superioris vicini fumigandi causa fumum faceret …
Ulp. D. 9, 2, 49 pr.: Si quis fumo facto apes alienas fugaverit vel etiam necaverit …
Ulp. D. 7, 1, 13, 6: Si tamen quae instituit usufructuarius aut caelum corrumpant agri aut magnum apparatum sint desideratura opificum forte vel legulorum, quae non potest sustinere proprietarius, non videbitur viri boni arbitratu frui …
Ulp. D. 43, 8, 2, 29: Idem ait, si odore solo locus pestilentiosus fiat, non esse ab re de re ea interdicto uti.
Ulp. D. 43, 8, 2, 29: … non esse ab re de re ea interdicto uti. The meaning of the passage is not unproblematic. The German translation (Das Corpus juris civilis in's Deutsche übersetzt von einem Vereine Rechtsgelehrter und herausgegeben von Carl Ed. Otto, Bruno Schilling und Carl Friedrich Ferdinand Sintenis als Redactor, Vierter Band. Leipzig 1832, p. 434) reads: so sei es nicht unzulässig, deshalb sich des Interdicts zu bedienen. The English (The Digest of Justinian, Translation edited by Alan Watson, Vol. 4, Revised English-language edition 1998, p. 89) and the French (Les cinquante livres du Digeste ou des Pandectes de l'empereur Justinien, Metz 1803, Réprimé en 1979 par Scientia Verlag Aalen, p. 450) translation of this fragment deny this possibility (this does not justify the recourse to the interdict./ on ne peut á cet égard avoir recours á l'interdit). See also Di Porto, A. (1989–1990), p. 299, who believes that Nerva advocated the use of the interdict (il giureconsulto ritenga applicabile il generale interdetto ne quid in loco publico vel itinere fiat).
Ulp. D. 43, 8, 2 pr. See also Lenel (1927) 458 s.
Ulp. D. 43, 23, 1, 2: Curavit autem praetor per haec interdicta, ut cloacae et purgentur et reficiantur, quorum utrumque et ad salubritatem civitatium et ad tutelam pertinet: nam et caelum pestilens et ruinas minantur immunditiae cloacarum, si non reficiantur. Ulpian is probably referring to the interdict de cloacis. See D. 43, 23 and Lenel (1927) 481. More on the problem of drains DiPorto (1989–1990) 271 ff. See also Sáry (2020) 205 f.
Plin. Nat. hist. 18, 3, 11: agrum male colere censorium probrum iudicabatur ….
Cato, De agri cultura, Praef: … Et virum bonum quom laudabant, ita laudabant: bonum agricolam bonumque colonum; amplissime laudari existimabatur qui ita laudabatur.
Gell. N. A. 4, 12, 1: Si quis agrum suum passus fuerat sordescere eumque indiligenter curabat ac neque araverat neque purgaverat, sive quis arborem suam vineamque habuerat derelictui, non id sine poena fuit, sed erat opus censorium, censoresque aerarium faciebant. The English translation is taken from Noctes Atticae (Attic Nights) by A. Cornelius Gellius, published in Vol. I of the Loeb Classical Library edition, 1927 (revised 1946). The text is in the public domain available at link6. Aerarii were Roman citizens who were excluded from comitia centuriata and comitia tributa by the censors. They had to pay a special tax. More on this term Wissowa (1893) 674–76.
Gai. D. 19, 2, 25, 3: Conductor omnia secundum legem conductionis facere debet. et ante omnia colonus curare debet, ut opera rustica suo quoque tempore faciat, ne intempestiva cultura deteriorem fundum faceret.
Ulp. D. 43, 24, 7, 6: Si quis acervum stercoris circa agrum pinguem disiecerit, cum eo “quod vi aut clam factum est” agi potest: et hoc verum est, quia solo vitium adhibitum sit.
Ulp. D. 39, 3, 3, 1: Idem Trebatius putat eum, cui aquae fluentes calidae noceant, aquae pluviae arcendae cum vicino agere posse: quod verum non est: neque enim aquae calidae aquae pluviae sunt.
Ulp. D. 39, 3, 3, 2: Si vicinus, qui arvum solebat certo tempore anni rigare, pratum illic fecerit coeperitque adsidua irrigatione vicino nocere, ait Ofilius neque damni infecti neque aquae pluviae arcendae actione eum teneri, nisi locum complanavit eoque facto citatior aqua ad vicinum pervenire coepit.
Ulp. D. 9, 2, 27, 14.
Ulp. D. 9, 2, 27, 14: … nam alia quaedam species damni est ipsum quid corrumpere et mutare, ut lex Aquilia locum habeat, alia nulla ipsius mutatione applicare aliud, cuius molesta separatio sit.
Paul. D. 27, 9, 13: Si fundus sit sterilis vel saxosus vel pestilens, videndum est, an alienare eum non possit. … Ulp. D. 21, 1, 49: Etiam in fundo vendito redhibitionem procedere nequaquam incertum est, veluti si pestilens fundus distractus sit:
Diocl./Maxim. C. 4, 58, 4, 1: Idem observatur et si pestibilis fundus, id est pestibulas vel herbas letiferas habens, ignorante emptore distractus sit.
More about Roman water law: Plescia (1993), Gómez Royo (1997), Lazo González (1999), Terrazas Ponce (2012), Bannon (2009), Bannon (2017), Bannon (2021). See also Kelby Rogers (2018).
See Blichert-Toft, Goiran et al. (2014), Delile et al. (2017). See also Todini (2017) and above fn. 8.
Ulp. D. 43, 23, 1, 4: Cloaca autem est locus cavus, per quem colluvies quaedam fluat.
D. 43, 23 De cloacis, esp. Ulp. D. 43, 23, 1 pr.: Praetor ait: “quo minus illi cloacam quae ex aedibus eius in tuas pertinet, qua de agitur, purgare reficere liceat, vim fieri veto. damni infecti, quod operis vitio factum sit, caveri iubebo”. More on this Di Porto (1989–1990). See also van den Bergh (1999) 501 ff, Sitek (2000) 862 ff.
Ulp. D. 43, 23, 1, 7.
Ulp. D. 43, 23, 1, 12: … ut in vicini aedes veniat et rescindat pavimenta purgandae cloacae gratia … si paratus sit restaurare id, quod ex necessitate reficiendae cloacae causa resciderat.
D. 4, 20 and C. 3, 34.
D. 43, 20.
D. 43, 21.
D. 43, 22.
D. 43, 23.
On this fragment see Wacke (2002a) 9 f.
Ulp. D. 43, 24, 11 pr.: Is qui in puteum vicini aliquid effuderit, ut hoc facto aquam corrumperet, ait Labeo interdicto quod vi aut clam eum teneri: portio enim agri videtur aqua viva, quemadmodum si quid operis in aqua fecisset. More on this Di Porto (1988) 461 ff.
Ulp. D. 7, 1, 13, 2: … ideo iudicem dari, ut eius arbitratu utatur: nam qui agrum non proscindit, qui vites non subserit, item aquarum ductus conrumpi patitur, lege Aquilia non tenetur.
Paul. D. 47, 11, 1, 1 (= PS 5, 4, 13): Fit iniuria contra bonos mores, veluti si quis fimo corrupto aliquem perfuderit, caeno luto oblinierit, aquas spurcaverit, fistulas lacus quidve aliud ad iniuriam publicam contaminaverit: in quos graviter animadverti solet.
See D. 39, 3 De aqua et aquae pluviae arcendae. General information on this action Rainer (2023), § 62, Rn. 55–70 (1721 ff) with literature in fn. 158.
Ulp. D. 39, 3, 1, 1.
Ulp. D. 39, 3, 1, 5. Sed et si quis arare et serere possit etiam sine sulcis aquariis, teneri eum, si quid ex his, licet agri colendi causa videatur fecisse: quod si aliter serere non possit, nisi sulcos aquarios fecerit, non teneri. Ofilius autem ait sulcos agri colendi causa directos ita, ut in unam pergant partem, ius esse facere.
Ulp. D. 39, 3, 1, 3.
Ulp. D. 39, 3, 1, 4. Sed et fossas agrorum siccandorum causa factas Mucius ait fundi colendi causa fieri, non tamen oportere corrivandae aquae causa fieri: sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat.
Ulp. D. 39, 3, 1, 11: Idem aiunt aquam pluviam in suo retinere vel superficientem ex vicini in suum derivare, dum opus in alieno non fiat, omnibus ius esse (prodesse enim sibi unusquisque, dum alii non nocet, non prohibetur) nec quemquam hoc nomine teneri.
Ulp. D. 39, 3, 1, 15.
Ulp. D. 39, 3, 1, 14.
Paul. D. 39, 3, 2, 9.
Ulp. D. 39, 3, 1, 12: Denique Marcellus scribit cum eo, qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit.
Pomp. D. 39, 3, 21: Si in meo aqua erumpat, quae ex tuo fundo venas habeat, si eas venas incideris et ob id desierit ad me aqua pervenire, tu non videris vi fecisse, si nulla servitus mihi eo nomine debita fuerit, nec interdicto quod vi aut clam teneris.
Ulp. D. 39, 3, 1, 17: Item sciendum est hanc actionem non alias locum habere, quam si aqua pluvia agro noceat: ceterum si aedificio vel oppido noceat, cessat actio ista, agi autem ita poterit ius non esse stillicidia flumina immittere.
D. 43, 12: De fluminibus. ne quid in flumine publico ripave eius fiat, quo peius navigetur. More about these interdicts Lazo González (1999) 68 ff.
D. 43, 13: Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit.
Ulp. D. 43, 13, 1, 3: … si mutetur aquae cursus per hoc quod factum est, dum vel depressior vel artior fiat aqua ac per hoc rapidior fit cum incommodo accolentium.
Ulp. D. 43, 15, 1 pr.: Praetor ait: “Quo minus illi in flumine publico ripave eius opus facere ripae agrive qui circa ripam est tuendi causa liceat, dum ne ob id navigatio deterior fiat …
Ulp. D. 43, 15, 1, 3: Is autem, qui ripam vult munire, de damno futuro debet vel cavere … et hoc interdicto expressum est, ut damni infecti in annos decem viri boni arbitratu vel caveatur vel satisdetur.
Ulp. D. 43, 15, 1, 4. Dabitur autem satis vicinis: sed et his, qui trans flumen possidebunt.
Ulp. D. 43, 12, 1, 12: … utile interdictum competere “ne vis ei fiat, quo minus id opus, quod in alveo fluminis ripave ita factum sit, ut iter cursus fluminis deterior sit fiat, tollere demoliri purgare restituere viri boni arbitratu possit”.
Ulp. D. 43, 12, 1, 17: Si in mari aliquid fiat, Labeo competere tale interdictum: “ne quid in mari inve litore” “quo portus, statio iterve navigio deterius fiat”.
More about this Wacke (2002a) 3 f and 12 ff. See also Flach (1990).
See e. g. Gai. 2, 31. More about the Roman protection of buildings and public works Sáry (2020) 207 ff. General information about it gives Kunst (2000).
Paul. D. 8, 2, 4, Pomp. D. 8, 2, 23.
Ulp. D. 8, 2, 15.
Cels. D. 43, 24, 18 pr.: Si inmaturam silvam caeduam cecidit quis, interdicto quod vi aut clam tenetur: si maturam similiter caeduam neque damno dominus adfectus est, nihil praestabit. On the term silva caedua Gai. D. 50, 16, 30 pr.: “Silva caedua” est, ut quidam putant, quae in hoc habetur, ut caederetur. Servius eam esse, quae succisa rursus ex stirpibus aut radicibus renascitur.