NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses property rules in the Roman Law. This episode covers topics such as What common property is and how it was key to the Roman system Rules that governed water usage and waterway transportation How modern legal systems differ from Roman practice involving waterways This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Let’s start with an overview. How is Roman Property law organized? What are its defining characteristics? RICHARD EPSTEIN: The first question one has to ask about Roman Law is what was the way in which they organized and developed this position. They did not start from an abstract theory about what property rights were or how it is that they were supposed to be organized. Instead when you look at Justinian, who was fairly asystematic about it, and Gaius, whose a little bit less so in part because we lost some of the key text there. Of course they weren't recovered. What they did is they started with a fundamental distinction between common property and private property. Developed very briefly the attributes of common property, and then proceeded to talk about public property. And it's extremely important to understand this particular arrangement because what it does is it essentially gives a view of property rights which is wholly inconsistent with the modern views of property rights that developed through people like John Locke, James Madison, and so forth who overstate the importance of private property and systematically understate the importance of common property. So first what I'm gonna do is to state what the distinction was in the eyes of these people. The first distinction, and then try to explain what fell on each side of the line and why it turns out that this was essentially correct. And the justificatory apparatus is not found instead the Roman law because when it came to this distinction they relied on their trusty all purpose explanation. This was in accordance with no actual reason, but they didn't flesh out what those reasons were. So common property has the common feature. You're in a state of nature. So there's no state, and then there are certain forms of property to which everybody has access and from which nobody can be excluded. And that means in effect that if something is open to common access, then nobody by unilateral action can reduce it to his own private property. As for example by damning up a river, and claiming all the water that is poured into barrels as though it were his own. So that's the res commun. Now on the other side, you have something which is called res novius, which literally means the things that are owned by nobody. And these things have exactly the opposite rules. If somebody engages in an act of occupation, taking possession in a way that indicates to the rest of the world that they're excluded from the thing in question, that thing becomes his or hers in perpetuity solely and exclusively and they're entitled to either develop it or to sell it in one form or another. And so what happens is you get these two exact opposite types of regimes, and the question's are they can compatible in some deeper, intellectual sense. The easiest way to answer that question is to first note what falls on both sides of this particular line, and then to ask what would happen if what you did was to reverse the ordering and so that the things which were treated as common property by Justinian are now private property, and the things that were common private property by Justinian now become common property. And so if you go to Justinian who's just slightly for explication on this than Gaius, what you're immediately told is that common property includes the water, the oceans, the rivers, the air, and since you were talking about waters, and consequently the seashore. These are things which are open to all that nobody can privatize. And then if you go a little bit further in Justinian and in Gaius, what they do is they announce that res novius includes land, it includes wild animals, fish birds, game. And it also includes sort of random things that you find on the seashore like a sea shell or something of that. And those are subject of the private regime. PUBLIUS: So there is common property that no individual can own because it belongs to the community as a whole, like the waterways. Then there’s commonly accessible property that can be privatized like land and animals. Why is this an important distinction? RICHARD EPSTEIN: Well it turns out that there are two kinds of problems that you have to worry in any regime of property rights. One of them is the question that one person will take this property right and use it to blockade the way in which others can use things of their own. Now what a legal systems instinctively knew, is that if you allow a blockade, it's not going to encourage productive use of a research, of a resource. What it's going to do is to allow one individual to make sure that somebody else doesn't have access to that resource unless it turns out that they buy their way in. You then have to figure out whose going to be the person whose got that dominantly paired, and you have to ask yourself whether or not if there are millions of people out there, you can enter into bargains with all of them, so as to get rid of the appropriate blockade. The second problem is the externality problem. That's a problem which says I'm using whatever it is that I own. What I am going to do is essentially now create noise or filth of one kind or another that spills over quite literally into somebody else's land, and if it turns out that you don't have private property, you don't have the externality problem. And so what you're constantly trying to worry about is which of these two problems is bigger and it turns out when they're bigger, if one is bigger than the other you're inclined in one direction and then you try to correct. And if the other is bigger than the one you go in the opposite direction. Now this all very mysterious, so let's start with the water situation. And what you do is you now have a river, and what it does is it runs a very long period of time and there are many people who are riparians that who own property on either side of the river. Now assume that we now subject this to the res novius rules. That means that somebody can put this water into a bath. What is going to be the consequences of that in terms of the use of the river? Well if I can bottle it up, it means that no downstream user can essentially gain any access to the water. Now what does this mean? It means that, maybe, I can take that water and try to sell it to everybody. Not going to work very well if I'm sort of bottling this thing up at mile one and I'm gonna have to sell it to people who are at mile 40, 50, and 60 downriver. Generally speaking, transportation is very difficult. If in fact the rivers allowed to run mine is going to get down there to begin with. So bottling it up even for the use of water outside the stream is going to be a dead losing situation if somebody can block everything. We'll talk about partial stuff in a second. But rivers have other uses, as well. For example, they support fish and if that water's in a barrel, there's not gonna be that many fish who start to live. Our rivers essentially give you recreation. You can swim in a river. You can't swim in a barrel. A rivers turns out to give you transportation. You can take a canoe or boat or something a rather and go all the way down the river. So that navigability becomes clear, and even if you can't get people down the river, sometimes you'll have a very small river, but it's big enough so that somebody can ship logs down the river from a forest which is up in the hills somewhere to a mill which is somewhere low. And you essentially, allow that river to be cut off you'll never get those logs to market. And so essentially the hold out problems turn out to be extremely enormous in these particular cases. And what they do is they get rid of all of the common uses that one would like to have with respect to all water when you talk about nutrition, fishing, recreation, navigation. These are very, very big uses and it does not take a detailed empirical study to realize that the moment you allow the privatization of the river under theory of occupatio. I've taken the water, therefore it's mine. This system is absolutely crazy. And so essentially what happens is as a first approximation, what you do is you say that nobody's in a position to do this to the particular river. Further, occupadio is forbidden and now we're effect all of these particular rights are going to be preserved one way or another. Well is this a complete solution to the problem? And the answers is it most assuredly is not. And so what one has to then do is to figure out what it is that's right or wrong with this system. And it turns out that there are many difficulties with it. Let's start with one. First of all it's not at all clear when you look at a river that you don't want anybody to be able to withdraw any water from the river at any point during it's life. People often don't think about this, but rivers are really complicated structures. And it's not as though all the waters come in from the top of the river and go to the bottom. All sorts of feeders, streams, rivers underground sources that constantly replenish the water. And so it becomes perfectly sensible to try and develop this system which says at the margins, I'm using that term carefully, if you can take some water out of the river in order to nourish your family, in order to feed your crops, in order to take care of your animals, and there's still enough water left in the river in order to deal with these questions of navigation and recreation and fish life, it's gonna be improved. Now it's also very difficult because you can't have a voluntary coordination amongst all of these riparians, as we call them, cause then there'd be thousands of them. It's also the case in ancient times and in modern times, that some faction of the river is not going to be occupied on the shore by somebody else. What are you supposed to do with late comers? You can't handle this by voluntary agreement. There are too many parties, or as the cosines of this world would like to say, the transactions costs amongst the relative actors are so high that even if a system in which there was some limited right to remove water shared by all individuals is better to a system by which nobody could take it, we can't get there through contract. So how do we then start to do this? Well our friend John Locke, of course, gets it completely wrong. And what he says in effect is two things. One he says is you can take water from the river, so long as you leave as much again inside the river. But the moment you think about that you realize there's something deeply wrong with it, because by definition if one person takes something out there's necessarily going to be something less left for the next people on the list. And so if you have to leave as much again and there's a good, in the individual case it means in the end that you cannot allow anybody to take anything out. Which was the conclusion, half tongue in cheek that Robert Nosick read in his book, Anarchy State and Utopia. He wasn't a property expert, but boy did he love pointing this thing out. And so you can't do that. And then the second kind of limitation that you have is that if you could take it out only to the point that you can make gainful use of it. And that of course turns out not be a particularly good limitation because if it turns out that I'm going to cost people, say a thousand, I'm there a hundred dollars of use out of this thing I'm still making use of it, but what the rule doesn't do is it doesn't take into account the losses to other people even for in stream uses on the one hand, or on the out stream uses. So the two Lockean provisos on this thing are absolutely useless. Now why is that? Because Locke never understood the differences between water and land law. How do we know that? Because if you look at his illustration, he says that if you take water out of a fountain then it's going to be yours by the first possession rule, but of course this is not water sitting in a fountain. It's a very dynamic system, and the question is not is the water yours after you take it out of the fountain, or out of the river. The question is are you allowed to take this amount of water out of the river and why? So what they ancients did is they didn't treat this as a question of individual choice. They treated it as a systematic problem, and they said what we are going to do is to allow people to take out water, roughly speaking pro rata to the shore that they have. And then what we do is we create a hierarchy of uses, and the hierarchy of uses is roughly you can first use it to feed your family and to give water to your family. And then to take care of your animals. And to take care of your crops, and for other uses on the land. And it's pro rata. Now how you enforce this is very tricky, and it's done by custom. But essentially, the basic intuition is if everybody's in the same boat, how much is the caring to pass in the river and then we divide it pro rata. As I mentioned it's actually a little bit more complicated than that because some water comes in downstream as well as upstream. That makes it a little bit easier because it means when the upstream takes some water out, it's not as thought the ground stream guy's depending exclusively on that. There's new water coming in downstream which the upstream guy couldn't do. So it turns out under the English riparian system, which develops with respect to these water rights, this system is really quite stable, to the extent that the uses that you have from the water are relatively limited. PUBLIUS: Did the Roman system resemble the English system you just described? Were there specific or complex rules that governed common water usage? RICHARD EPSTEIN: It's interesting when you start looking at Gaius and Justinian on this, they spend very little time worrying about these particular problems. All they tend to worry about is the basic intuition. Clearly correct, but insufficient, that no one person can damn up a river. The more systematic elaboration of this tends to take place in English times. Why didn't the Romans tend to do it? Well generally speaking if you have limited private users and sparse populations, no matter how much anybody takes out of the river, if they're not diverting the whole thing there's going to be enough for everybody else to do more or less what they want. So the basic rule in allocation has always been, if it's a low intensity use, we don't try to put into case a complicated property system. We just let everybody take as much as they want. But the moment that the uses become much more systematic, the correlative duties to other individuals become much more important and we have to figure out this system. Which was done with an amazing sophistication, the simple riparian systems by the English water law as it matured, certainly by the middle of the 19th century, and a good deal earlier than that. So that's the first kind of thing that you have. You have to worry about that. Then you have to worry about in stream uses, and so forth. And here what happens is it's the same kind of analysis. First of all, everybody can use the river. And if it turns out that there aren't a whole lot of people trying to use the river in one way or another you don't need to have any traffic rules. But the moment it turns out that transportation along a river becomes heavy, you will start to see a very powerful effort to separate people so they don't go crashing in to one another. So boats have to pass port to port or starboard to starboard depending on the community that you have. And it's little bit like the development with respect to land travel many many years later. You don't need lanes or highways until people start to move fast enough, and that's roughly speaking 1915 with the automobiles. Now with the boats it came earlier, and so sure enough what happens is the state kind of comes in. And it's the only principle person who can regulate the way in which this thing is done, and everybody now regards it as a perfectly legitimate use of the government to create rights of way in the public water. Even though that was no part of the Roman system. So how do we get there? Well there's one of the textbooks says that water is held in common. It's digest 2.1, and sure enough all of the modern writers treat this as saying as though water is owned by the state and held in a public trust. Now this is completely wrong as a matter of Roman law. Because this is a natural law system. We don't have the ace in the hole. We don't have the state. But what you can say is, if you think about this you can have a serious pareto improvement. We've already talked about that, in which there'll be more traffic along the river, just as there'll be more traffic along the roads if you have rights of ways so that people can essentially pass each other in relative peace and harmony. You try to figure out which of the riparians are going to do this. And if you leave it to each individual riparian to set the rules with respect to his own plots of land, then you may have a thousand yards under one rule, and 500 yards on another. It's just not gonna work. So you need to have somebody to do this for the entire river and by default, it's always the state that does this. We call this public trust. Why do we use the word trust? Because the government is not treating this as though it's an outright owner of the particular property in question. It's a trustee and it's mission in this case is to maximize the value of the river for all of the people who use it. Well who are these people? And it turns out these are very interesting debate over this. If you're in a natural law society there is no such thing as the citizens because it turns out there is no such thing as the state. It's an absolutely open access regime to everybody in the face of the world. But now when you superimpose sovereignty on this, then you say that the only people who as of right are entitled to use the river under the public trust doctrine are the people to whom the state owes a fiduciary duty. Namely it's citizens or it's subjects and you can exclude [outsiders or do you want to say look before the state came along anybody could use the river, and now what we have to do is to have free commerce going back and forth. PUBLIUS: Commercial travel through waterways is obviously still an important issue in modern times. How do modern legal arrangements look in comparison to the Roman system? RICHARD EPSTEIN: If you look at the 19th and 20th century cases on this issue, there's a lot of difference of opinion on it. Ultimately, sovereignty wins out as a legal matter. But as a moral matter, trying to create this as an open seas is the more effective position. Certainly you see a lot of pressure on the state and not to discriminate against foreigners when they want they want to use the river under the same rules as everybody else is going to take place. And the theory is that you put these things in there and it's going to be better. Well it's not only for that, but rivers tend to get fouled up in one way or another by storms. There are floods. Somebody has to maintain it. You may have to dredge silt from the river and so forth to keep the channels clear and so forth. Well somebody in the state is going to have to do this and the question is where do you get the remedies and the wherewithal to do it? And now all the sudden you're faced with the question whether you pay this from general revenues or whether you put a toll on all the boats that use the particular facility in order to pay for the kinds of results that you have. And there's a big split of opinion on that. The better position, generally speaking, is you are gonna get better monitoring of the improvements that you make if you have to collect revenues from the beneficiaries of this than if you just go back to a public tax of one kind or another and take the money out of everybody else's pockets. But that's also another one of these developments where essentially what you do is you see the inadequacy of the very primitive common law system being built up by a state system, which essentially is trying to maximize the value of the resource. It's a perfectly sensible legitimate use property rights, but it's not as though this is part of the Roman system. They never got this far. It becomes part of any new system which has to deal with intensity abuses. The third variation on this is you're catching fish in the river and so forth, and today we talk about the common pool problem, by which we mean if I take a fish out of the river, I care a, about the benefits that I get which is the whole fish, and I also care about my cost, which is tiny fraction of the damage to the whole. And so let's suppose there are a hundred people on the river and it turns out that my gain is a hundred and my costs are two. I'm going to take it out. Everybody else makes that same decision. Hundred, two hundred, two hundred, two hundred, two. In the end, everybody gets the hundred but you get the two hundred dollars of loss so that in the end the common pool means that over consumption is serious. And then you try to figure out private consensual solutions for this. They don't work. Too many people coming at too many different times in too many different ways. And so just as you need to have state intervention to make sure that the rivers are not silted up, to make sure that the lines of communication are there, to make sure that there's not too much water taken out of the river by land uses and so forth, you have to do the same thing with public uses. So what happens is if you go through the Roman system and see how it was organized on this particular point, then you can understand what's there. But the basic truth still remains. If you don't treat this as resource held in common, the blockade problem this is. The Roman's solved that problem even though they didn't solve all of the other problems that it was associated with. Now the nice variation on this that I mentioned earlier was the seashore. And if you look at the text in Justinian, he uses the funny word, consequently the seashore is protected like the waters. PUBLIUS: Why would seashore access be comparable to water access? What are the implications of that? RICHARD EPSTEIN: Now beaches are in fact a very common complicated thing. And what happens is the beach constantly moves because if the river starts to expand, then the foliage that is nearby gets wiped out by the water so the bare sand emerges. If it turns out that the river starts to shrink, then the foliage will start to slowly creep into the dry land. So basically beaches are always a thin strip going across the land. Now it has two uses and you have to do with both of them. One of them, is now it's kind of a convenient land highway next to the river and you certainly don't want to have people blocking that up by claiming that they own the beach because they own the upland. And so this was always treated as land which was part of the commons to which the rule you can never exclude somebody else was applicable to it. But on the other hand in the middle of the storm, you may often have the necessity and then the question is can people take refuge on the beach. And here there's very interesting question I always ask Roman law students about two translations. And the earlier one said, that in times of stress anybody is entitled to build a cottage on a beach. And I said what's wrong with the word cottage? And of course, when you think of a cottage you think of a permanent building. Think of a white picket fence. You think of momma in the kitchen and dad in the lawn, and that's just not what you're talking about on a beach. And so the more modern translation, more active translation is the word hut. And the who theory about this is nobody's going to be marching up and down the beach in the middle of the storm, and so if you put a hut on there to allow people to save themselves from the weather that's surely a private use. But the inconvenience with any public use is virtually negligible and then as you often do with respect to this situation you have very powerful temporal limitations. The moment the storm is over you have to take the hut down, because if you don't then everybody's going to start building huts along this particular thing. And it will lose it's value with respect to a transformation system. And so you see a perfect illustration how the Romans were making the following kind of approximation. First we figure out, which is the dominant problem. And surely with rivers, it is the obstruction problem. So you create it as common property. Then you try to figure out how you en graph private uses on this so as to improve the overall efficiency of the system. And the last problem that you have to worry about is a cross between the others. We're all using the river one way or another. What about pollution? And so if somebody on the river throws all sorts of things over from board. If the guys who are riparians throw things into the river at large, it's the classic externality problem. They suffer very little of this harm. Most of it goes to downstream users if you're upstream. And so what you have to do is to develop a tort law, which prevents people from creating nuisances of one kind or another. And sure enough if you look at the mature law this was not done in the Roman system. We didn't get enough text to deal with it. They all have rules exactly the same as the rules for the land about pollution. But there's a serious question about which of these particular riparians is going to be in a position, or which of these river users are going to be in a position to bring this suit. And you come up with therefore two answers, which were fully articulated in the early English common law, by about 1536 and so forth. But were never answered in the Roman law. And they are if any individual suffers special damages, so if you on your upstream plot drop a bunch of pollution and it all ends on my land a hundred yards below, I can sue you. But if it goes into the river and it's just refuse and it goes down for miles, no individual land owner is going to have the success or ability to bring this suit, so we call it a public nuisance and the government can clean the river up and impose a fine for general damages that has happened, so as to make sure that the system will run cleanly. So there's public, and special damages are absolutely necessary to make a river work. And we don't have this in the Roman law system, because we have only three lines in Justinian which talks about what's going on. But what you can do is you can see how the subsequent evolution is going to start to take place. So then what you have to do is you gotta look at the other side of the line. And the other side of the line is what deals with things that are called res nuillius. And at this particular point, there's no reason to say that I or you, or anybody else has a particular claim on a given thing. So what we need to do is to get a very cheap and effective rule, which will allow us to explain which particular person is going to get exclusive rights. And we also have to explain why you want these exclusive rights. And so essentially the way in which you answer this last question first is what you do is you go back to the maxim which was constantly in use at the time. Is that only those who sew shall be entitled to reap. PUBLIUS: Was it ever permissible to claim a part of the water as a private owner? What about claiming and maintaining possession of a piece of land next to the water? RICHARD EPSTEIN: Water was generally held in common so that anybody could have access to that river. They may not be able to get access to that river through your particular land, although they could get access to it through a public beach they came on from some other source and so forth. But the issue is what happens and how do we define the interface between land and water? And it turns out that the Romans understood there was a distinction between two different kinds of rights associated with this. One of them are the rights of alluvion and the other is the rights of avulsion. And the distinctions that they made are essentially good law to this time. Let's start with the alluvion question, which is talked about by Gaius, and then go to the avulsion question, which is talked about by Justinian, who also talks about alluve. So the simplest case that you have is: suppose you have a small river stream running by your property and it's commonly understood that this water can meander one way or another. And so one day the water is here and then it moves six, eight inches in this direction, it goes back the other. How does this happen? Well, there may be a blockage somewhere up in the river, then maybe a sandbar that emerges, some animal may have built a dam. It may well have been that this some erosion on the surface that may be heavy or light waters on these things. So these boundary lines are going to commonly move. And so now what you do is you imagine a situation in which a certain piece of land was covered by water and now the water recedes. So you have a strip about three inches or six inches wide going along the length of that particular river. And what you do is you now say, “Well, let's apply the first possession rule,” and somebody comes along and what he does is he stakes out that new piece of land and says, “Since nobody else was in occupation of that land prior to me, this land turns out to be my land.” And the moment you think about it, then you ask yourself, what can this person do with this particular piece of land, which turns out to be 200 yards long and three inches wide? It turns out it has only one use and that use turns out to be blockade. Because what this person will say is, “Now I own this piece of land, obviously I can cultivate it, but since I have possession of it and you want to cross my land, you have to pay me something." Sthe riparian is going to be, at least in the short run, demoted from the riparian status into somebody who's a non-riparian who has to buy this thing. And generally speaking, it's absolutely insane to give somebody a hold outright unless there's some beneficial use associated with the situation. So the usual rule on the occupational blend is allowing for intelligent development by having sort of indefinite temporal and spacial dimensions doesn't apply to this case. And the Romans understood this perfectly well. So their rule was if these are gradual shifts one way or another, it turns out that the riparian remains a riparian so if the water starts to go down, that extra three inches that is exposed is still his, nobody could come in and claim it by first possession. If it turns out that the river arises now some of his land is going to go underwater to the extent that it's underwater and is now part of the common and he can't exclude anybody from it at least for that period of time. What we now have, a new interface that's upstream and what happens is he still continues to have the direct contact as a riparian so that the movement of the boundary line with the movement of the river shape and so forth, is in effect a highly efficient way of dealing with a question. And the reason why you put it after the first possession will in both Gaius and Justinian is that this is a powerful exception to a general rule which makes perfectly good sense when you start to deal with relatively square properties of productive use. But when it's long and skinny it has none of these particular characteristics and it turns out to be a blockade system. This is part of the basic principles that we have in all areas of the law. Long and skinny and short and squat have very different characteristics. If you're talking about a long and skinny river, it's perfect for communication, so nobody could have it. You talk about this little piece, is useless for communications. It's too narrow to walk on and has pure blockade. So if you go back to the fundamental premise we want to encourage common ownership where it eliminates blockade problems and to encourage private ownership where it allows for development. This little strip of land turns out to be a real menace and so the Romans do not allow it to form in that fashion and instead they have everything moved. There is not a single legal system on the face of the globe that has ever abandoned that particular position because it's efficiency characteristics are so enormous that even if you've never heard about holdout problems, if you watch physically what was going to happen, you'd start to realize that this was an exercise in the theater of the absurd. And generally speaking, customary solutions when one answer is so dominate over another will be very robust and you can just report it as quote-unquote, "a natural law document," or doctrine, which it turns out to be. Now avulsion is a very different kettle of fish. So what sometimes happens is that you get rivers that move dramatically. What happens is their blocked up in one particular channel and so they'll start to swing wide and they'll find another channel which may move, say, a mile or two miles from the original base. And so the question is what you do. And if you say, "Well, the guys who were riparian owners in the old location are riparian and owners in the new location," you get the theater of the absurd again. It means that some guy now owns a full mile of land which was owned by other people because he has access to the river and other people get completely wiped out. Nobody in his right mind would think that's appropriate. So what do they say? The Romans have basically two rules, all of which or both of which are followed fully today. Rule number one says as follows. It says that what we do is we take the old water bed, which is now dry, and we then figure out how to divide it between the two landowners until it's filled. Typically what do is you run a little line down the middle of the river. It slightly meanders as the river moves this way and that. You take the left side and I take the right side and we reduce it to private property with the full understanding that if the river by natural forces should come back again, then we go back to the usual system of riparian rights. So you figure out a way to privatize the particular land and divided it between the owners and by using the median line at every particular point what you've done is you've eliminated A, the first possession rule, because you don't want somebody coming in there and taking a six-foot wide river and running it indefinitely, and you also get rid of all the problems of who gets what fraction of the surplus that is created when this land is done. Because a median rule essentially pro rata between the two sides. It's fixed in advance and it doesn't create any bargaining problem. All it does is it creates a measuring problem, which you can never avoid, as to what's the middle of the river between the banks. Generally speaking they'll be enough physical markings so that a neutral arbitrator could figure out what's going on. It's an incredibly efficient and sensible rule and their attitude was proration is fairness. The modern rule is that proration is not only fairness but it's essentially a complete solution to the bilateral monopoly holdout problem because if you know that everything is going to be divided 50/50, nobody's prepared to say, "Oh, you can only get 30 if I get 70." Essentially what happens is the struggle is no longer going to be over definite-indefinite property rights, it's just going to be a simple measurement problem. But now we got this new river and so what do we do with it? Essentially we say, we start all over again. What we mean by that is when this new river starts to develop they're going to be riparians on both sides. Each of them essentially has the rights the old riparians had which means they are allowed to remain in constant contact with the river, whether the thing moves up or down. That's true on both sides and then you have all the other rules with respect to the water inside the stream, with respect to various uses for transportation, navigation, and so forth. The system basically switches over. If you think about it, it's absolute genius to get this thing right and this is the modern rule, because you can't think of anything whatsoever that's going to create that will do this. Now it's also important to understand that this is a rule and it only applies as a rule in cases where it's a natural event or an act of God. If somebody decides to dam up the river so it doesn't go in it's natural track and divert it to his property what happens is we know that the version of water from a river in toto is the basic sin. This is no different from the guy who decides to take all the water behind the dam and put it into a bottle. What happens is this guy essentially can be forced to pay for all the downstream losses and what you can do is you can get a relief by breaking up the particular portion of the dam which diverted the river so it could return to its normal channel. So you get the usual panoply of remedies which essentially give you property rights on the one hand for restoration and damages for the interim loss on the other. This particular situation is essentially one that you cannot improve upon and so the rules remain basically the same. Now you're obviously going to have hard cases of one kind or another about what happens when you're not quite sure which of the two sources is there. It turns out that the rules on alluvion and avulsion actually apply in modern American constitutional law because rivers essentially move in a gradual fashion. Then what you don't do is allow the state boundary lines to switch a little bit every time the river moves six inches this way or one foot the other way, but on the other hand if it turns out that there's a discontinuous avulsion then the property rights between the two states remain what they were originally, not withstanding the fact that the river has moved. Why do we know this? Because if you go back and you read the 19th century cases, essentially they were all based on Roman law principles. Why was that? Because this was in the age before Erie and Tompkins and so the natural law principles essentially applied in constitutional disputes. Under the modern law it's much less clear on that because you're not supposed to look at the law of Iowa, the law of Nebraska and so forth and lord knows what those things said. The earlier principles worked completely well because if you then asked the following question: how much idiosyncratic variation was there between the laws of different jurisdictions? The answer is there was virtually none so that the uniformity meant that you didn't have the conflict of law question. If you now say a particular state you can pass the statute. It will pass the statute which will incline the dispute in its particular direction so you no longer have that honesty of opinion. What you do is you have a real risk of strategic behavior through legislation that upsets the balance. So what do you say? The rules of avulsion essentially start to explain to why it is that Swift and Tyson makes more sense than Erie against Tompkins. Most people would not want to think of things in this particular fashion, but the line is really quite direct. What it says in effect if you're dealing with disputes between sovereigns and you have these transcendental natural law principles that actually work in private cases, carrying them over to public disputes is much better than trying to use the rule which says all rules come from the mouth of the sovereign when you're not quite sure which sovereign, state A or state B, is the one to speak. The modern cases essentially make a complete mess of this particular issue because they have forgotten the Roman law origins associated with property rights and disconnection. Water rights essentially has this particular element that it's well-worth remembering. PUBLIUS: Let’s wrap up with a quick summary and comparison to our modern legal system. How do modern private property rights account for water? Does any part of the modern system resemble the Roman Law? RICHARD EPSTEIN: You start with exclusive rights to the land and make modifications for overlaps and boundary condition problem. Whereas with waters you start with common rights. And then what you do is you allow for exclusive rights to take place by removing water from the rivers, right? And things of that sort. And the Roman distinction turns out to make absolutely good sense in terms of the way in which it goes. How do we know this? Because if you start with these boundary points that they have and this opposition, you can then figure out what the rules are to fill in the gaps that was created in the very primitive type system. You can't blame them for being primitive. Essentially, until you start having a state with sufficient administrative powers, you can't do the kinds of adjustments that you need for the water rights and you're going to find it very difficult to do it for the land rights and so on. So what you do is you have a firm foundation. You can then figure out how you're going to build the stuff on top of it. If you get that basic distinction wrong, or you ignore it, you'll never get things right. And the great mistake about the Lockean solution was that he assumed that anything in common ought to be privatized. And if you look at the way in which the Romans worked on this system, it was quite clear. And if you look at the way in which the Romans worked on this system it was quite clear that they thought the common ownership of the river was not some transitional state to be overcome by acquisition. They conceived of it as a stable kind of case. And the next thing that comes along that you always have to worry about is can the government take this property some way or another. And I'm just going to mention one point on either side to show that it is a symmetrical issue. So one of the things that the government can do is to decide we really want to make this channel work and we're going to build a wall and we're going to exclude riparian from having any access to the wall. And that would be a disproportionate impact and should be treated as if taken. Though under modern American law for a variety of reprehensible and confused reasons it's not and so you want to make sure that the government has to respect the distribution of rights that are created over this private and public space and that anytime you deviate from that is a serious problem. Anytime you try to clarify is going to be to the good. And then on the private side if the government wants to make a commons out of your land so everybody can enter it and walk over it even if they're allowing you to enter it, the fact that they are allowing other people to enter, means that they have taken 99% of the value and they ought to compensate you. So what happens is the essential theory of property rights gives you a baseline against which you can measure and assess. The question of whether state action is going to be permissible and when we talk about the various constitutional law protections for property rights the land water distinction that starts in disdain is absolutely critical to understanding how this thing works and you can show quite convincingly that all of the modern cases with one or two exceptions essentially botch the entire distinction and give the government much too much power, both over the land side of the equation and the water side of the equation. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!