Water, law, science

• Published in: Journal of hydrology (Amsterdam) 2008-01, Vol.349 (1), p.125-138
• Main Author: Narasimhan, T.N.
• Format: Article
• Language: English
• Subjects: Earth sciences; Earth, ocean, space; Exact sciences and technology; Hydrogeology; Hydrology; Hydrology. Hydrogeology; jus civile; Jus gentium; Justinian institutes; laws and regulations; Public trust; Science and water law; Water law; Water management; water policy; Water resources; watershed hydrology
• ISSN: 0022-1694; 1879-2707
• DOI: 10.1016/j.jhydrol.2007.10.030

In a world with water resources severely impacted by technology, science must actively contribute to water law. To this end, this paper is an earth scientist’s attempt to comprehend essential elements of water law, and to examine their connections to science. Science and law share a common logical framework of starting with a priori prescribed tenets, and drawing consistent inferences. In science, observationally established physical laws constitute the tenets, while in law, they stem from social values. The foundations of modern water law in Europe and the New World were formulated nearly two thousand years ago by Roman jurists who were inspired by Greek philosophy of reason. Recognizing that vital natural elements such as water, air, and the sea were governed by immutable natural laws, they reasoned that these elements belonged to all humans, and therefore cannot be owned as private property. Legally, such public property was to be governed by jus gentium, the law of all people or the law of all nations. In contrast, jus civile or civil law governed private property. Remarkably, jus gentium continues to be relevant in our contemporary society in which science plays a pivotal role in exploiting vital resources common to all. This paper examines the historical roots of modern water law, follows their evolution through the centuries, and examines how the spirit of science inherent in jus gentium is profoundly influencing evolving water and environmental laws in Europe, the United States and elsewhere. In a technological world, scientific knowledge has to lie at the core of water law. Yet, science cannot formulate law. It is hoped that a philosophical understanding of the relationships between science and law will contribute to their constructively coming together in the service of society.