Gardens and Neighbors: Private Water Rights in Roman Italy

Conclusion

{ 234 } CONCLUSION In Roman Italy, private water rights were governed by servitudes, a legal institution that afforded ›exible solutions to managing a local water supply. This study has investigated the legal rules of servitudes in order to evaluate how and how well the regime of private water rights served the needs of rural landowners. We have observed the development of legal concepts relating to servitudes, such as daily/summer water and the use-it-or-lose-it rule, in which Roman ideas about nature were adapted to the needs of agricultural cultivation. Beyond a discussion of the legal rules in the abstract, we have examined the application of these rules and concepts to speci‹c circumstances described in cases from the Digest of Justinian. Although some of the cases represent hypothetical situations created by the jurists to explore legal problems, they nevertheless shed light on issues and practices that both affected and were affected by the outcome of real legal disputes. Other sources—literary, epigraphical, archaeological—have been used to contextualize the legal sources. While the focus has been on water rights, cases about other types of servitudes have been considered where they help to reconstruct the jurists’ approaches and the factors that in›uenced the law. Thus, this study of servitudes allows us to assess the relationship between the legal system and the practices and attitudes of Romans who relied on the law to answer the challenges and constraints inherent in their social, economic , and physical environments. Because water sources were unevenly distributed in the physical landscape , managing a local water supply depended on cooperation between Conclusion { 235 } neighbors.To some extent, Roman landowners treated the water supply as a common good, in which the community shared rights and responsibilities. They had a common interest in sustaining the local water supply and protecting access to it, even though the legal system treated water as private property in the institution of servitudes. These common interests led them to practices that expressed the central principles of commons theory, subtractability and excludability. Social relations played an important role in allocating local water supplies and policing the system. In turn, the principles and priorities of this social system in›uenced the law of servitudes, not only in their asymmetrical structure, but also where they privileged negotiation over dispute, whether that meant encouraging landowners to specify the terms that would govern a servitude or punishing buyers and sellers who failed to come to an agreement about servitudes before the purchase of land. The jurists’ ›exible approach to local water-sharing customs follows a pattern observed by Dennis Kehoe in their treatment of farm tenancy.1 Where landowners and farmers were engaged in long-term relationships, the institutions of Roman law were accommodated to local practices. Recall, for example , how the rules of servitudes re›ect social norms of cooperation in Sabinus’s and Celsus’s instructions for exercising a servitude “in a civil manner ” (civiliter, D. 8.1.9 Cels. 5 Dig.). Commons theory prescribes just such a role for law in communities with a developed legal system, that is, articulating and supporting social relationships. In this way, the regime of property rights helps to conserve water as well as resolve disputes about allocation. The relationship between law and society in Roman private water rights is consistent with what we know about other water regimes, both ancient and modern. Inscriptions from Roman Spain and Africa document community water-sharing arrangements in which water was allocated in proportion to property holdings, a measure that re›ected the social hierarchy. The local water system of medieval Valencia was organized in a similar way according to Glick’s analysis. In Roman law, water could be allocated proportionally , or, more often, landowners crafted individualized solutions to meet speci‹c needs. Such negotiations are also known from medieval Italy, where they may have been less successful: according to Squatriti’s assessment, small-scale landholders were at a disadvantage because powerful elites monopolized local water supplies in the “patrimonialization of rural water rights,” though his reconstruction may take this view at least in part because he underestimates the role of Roman law in local water systems and its likely 1. Kehoe, Law and the Rural Economy, 93–129. { 236 } GARDENS AND NEIGHBORS legacy in later eras.2 There is evidence that some Roman elites (Vegetus and Orata, perhaps) took advantage of the legal system, but overall, the regime...