Opinion - News Analysis

Water, dharma, and Roman law

One scholarly view considers dharma as the duty to conform to the natural order of things. In science, natural order implies the functioning of the earth and its biological systems in accordance with physical laws that remain unchanged in time and are beyond human control. Water, a vital component of the earth and its biological systems, functions according to unchanging physical laws.

In contrast, humans conduct themselves according to laws based on social values and conventions that change with time. Commonly, law is about the rights of individuals to own and enjoy private property. By tradition, therefore, law devotes attention to relationships among humans and human institutions.

How does this traditional concept of law that changes with time relate to water that is governed by unchangeable laws and is indispensable for all life? This question necessitates an interpretation of dharma in relation to human interactions with nature in a technological society.

This dichotomy between human-human laws and human-nature laws was boldly addressed by Roman jurists between the second and the sixth centuries A.D. Influenced by Greek science and philosophy, these jurists recognised that elements such as water and air, vital for the sustenance of all humans, were governed by immutable, unchangeable natural laws. Hence, such elements could not be owned as private property, and could not be subject to civil law (jus civile) that governed private property. Accordingly, the Justinian Institutes of A.D. 533 concluded that running water, air, and the sea were to be governed by a different category of law, jus gentium, variously translated as law of all peoples or law of all nations.

The application of jus gentium to the needs of contemporary society gave birth to the well-known public trust doctrine. During the 13th century, public trust entered English common law through the Magna Carta. In essence, Roman law integrated science and law in a profoundly philosophical way, and established that human-nature relations had to lie outside conventional civil law, and had to be founded on distinct legal principles.

Remarkably, the spirit of jus gentium has become manifest in the Water Framework Directive of the European Union issued in 2000. It declares that water is not a commercial product like any other, but a heritage to be protected. Its vision is to attain for water resources a good ecological status throughout Europe by 2015. In deference to this Directive, the 27 member-nations, with diverse traditions and culture, are working towards changing their water laws to achieve a common vision based on a uniform set of principles. The EU members have chosen to adopt a “law of all nations,” an ideal inherent in jus gentium.

Amidst expectations of unprecedented economic growth, India is experiencing a water crisis. In the absence of a unifying water law and policy, water management is uncoordinated in India, and varied legal positions exist on water ownership. Inspired by English common law, India’s Supreme Court has strongly favoured the doctrine of public trust, decreeing that the doctrine is implicit in Article 21 of the Constitution which asserts that no person shall be deprived of his life or personal liberty except according to procedure established by law.

Currently there is an active debate in Indian policy and government circles about water management, water ownership, and related issues. The relevance to the debate of the thoughts and ideas presented above merits attention.

India is a federation of States. In order to have a uniform water policy and law that may unify the country, it is essential to lay down tenets that will bind all the States together. It is here that the concept of jus gentium, and the emerging European model based on the Water Framework Directive, become interesting. Roman law, harmonious with the concept of dharma, suggests that for legal purposes water has to be treated within a framework that is distinct from traditional civil law.

Surface water, soil water, and groundwater are manifestations of a single resource that has to be managed wisely with the best available scientific knowledge. The goal of water laws is to facilitate such wise management by formulating statutes and policies in accordance with the country’s constitutional mandates. Thus, science and law are inextricably intertwined towards achieving a common goal.

It is sometimes suggested that India’s problems relating to water law and policy demand a radical new thinking. The concept of “law of all nations” implicit in jus gentium constitutes such a radical perspective. The perception that morality means living according to the natural order of things, as inherent in dharma, is not unique to India. Other ancient civilisations have held similar views. In particular, the Romans not only believed so but with great perspicacity took the idea to its logical limits, and decided that human actions in relation to water, air, and the sea must transcend conventional private property laws, on a trans-national legal basis.

This discussion has brought together science, water management, ancient Indian perceptions on morality, and Roman law in a manner that is relevant to India’s water resources situation. This connectivity of thoughts may perhaps provide India’s legal and constitutional experts with a novel framework to reflect upon.

(The writer is Professor Emeritus, Materials Science and Engineering Environmental Science, Policy and Management, University of California, Berkeley. He can be contacted at tnnarasimhan@LBL.gov.)

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