Project Statement

A Research on Actio Aquae Pluviae Arcendae

By Zhang Kaifeng

1. Background

1.1 Overview

The law against the diversion of rain water by artificial means was, doubtless, of very ancient origin, perhaps as old as the Twelve Tables. The remedy was by the actio aquae pluviae arcendae , translated in English by Allan Watson as “action to ward off the water”, for removal of the obstruction, or caution, for possible damage. The words have been thus restored, - Si aqua pluvial manu nocet arecendae aquae arbitros tres addicito noxaeque domino cavetor .

In arid districts, such as those of Africa , this remedy lay in the converse, against the defendant, not for directing the rain water on to the property of another, but for diverting it in his own favor, which is looked upon as an injury.

The principle involve in the actio aquae pluviae arcendae , consisted in a remedy for an unnatural diversion of water, or obstruction of flowing water, by means of some work erected on land, whereby a contiguous open space is, or may be damaged. If, therefore, the erection of such work do not appertain to agriculture, or is not necessary to preservation of the land, and he who has so erected it have acquired no particular right upon it, the actio aquae pluviae arcendae lies against any owner in possession, and utiliter against the usufructuary, to remove the obstruction, or for the caution from all those who, exchanging situations, have a right of action. Against the offender being in possession, it lies for alteration of the work at his own expense; but it only lies against the possessor as such, for alteration to be made at the expense of the plaintiff.

Indemnity can only be demanded when the damage has accrued after the water has been admitted; nevertheless advantage may be taken of the interdict, aut vi aut clam , and where the period for moving the interdict has expired by the actio de dolo , for indemnity, and the id quod intereset.

If a landed estate, or an innoxious work upon it, becomes dangerous to another by natural accident, the possessor can reached utiliter at least by this action, to the extent of his being compellable to permit the plaintiff to make the repair at his own cost and charge.

1.2 Actio Aquae Pluviae Arcendae in time of Twelve Table

Actio Aquae Pluviae Arcendae , at the very beginning of its existence, was considered as a protection of domnius , an unlimited power of pater familias to control his family – human beings and property, which indicated the absolute freedom of pater familias . The function of the action at that time was merely to prevent the water from flowing amongst the contiguous lands, so as to, in a certain aspect, maintain the liberty of them. The only exception then was the damage caused by natural force, According to the Physis-techne dichotomy, namely the natural-artificial dichotomy, natural force is outside the control of the man force, which is inevitable, thus the owner of the property caused damage should not be blamed for such accident, and should be exempted from the action. Nature was seen as the fatality.

1.3 Actio Aquae Pluviae Arcendae in time of classic roman law

The principles mentioned above which showed the roman individualism encountered their difficulties, which reveal the plight of absolute freedom of pater familias , based on the ignorance of the fact that people who live in a civitas were all connected. Thus, with the knowledge of the tolerance of intrusion that was necessary for the basic need of life, agricultural affairs emerged as another exception during the time of classic roman law, work appertained to agriculture was exempted from the obligation. In the first instance, only those works carried out with a plow for the purpose of cultivating the field to secure a crop were excluded from the scope of the action. With the expanding of Rome , provinciae became the main source of the wheat, while in Italy , olives and grapes take the place of major part of agriculture. To face the reality and adjust the scope of the action, during the period of late classic roman law, anything done for the purpose of gathering crops or fruits was outside the category of case and it did not matter what sort of fruit it was whose gathering was the purpose of the performance of the work in question. One could do nothing to prevent his neighbor plowing as he wished. Agriculture, had been Romans' major industry for hundreds of years, was treated as an honored thing and considered as the origin of the noble roman tradition, which was inevitable to the Romans, which was the material and mental necessity of them. That is to say, agriculture was the nature of Romans, performances carried out for the purpose of cultivating fields were things done by nature, which could not and should not be restricted and regulated by man force, videlicet, by law. According to the same ideology, a third exception of the action was introduced, that was the established custom. Romans respected the traditions and accomplished facts, it is time that endows them with senses of sanctity. Traditions were a series of accomplished facts which were practiced by the ancestors and kept repeating by their offspring. Every Roman was destined to follow them. So are the customs, the only thing distinguished customs from the traditions is that they are not so age-old and their durabilities are not as strong as traditions. Having been a component of the society, the established customs were inevitable to every single man who lived in it, it was the nature of the society, and therefore, actio aquae pluviae arcendae was not available with the reference to work carried out by one who follows them.

1.4 Actio Aquae Pluviae Arcendae in time of Iustini.

In classic roman law, the function of actio aquae pluviae arcendae was to prevent neighbor from changing the nature flow of the rain water by artificial work, that could not meet the demand of solve the conflict of use of water amongst neighbors. Meanwhile, inside the empire, Italy and provinciae practiced different modus operandi. To unify the legal system and adapt to the praxis, Iustini proceeded several legislations while recomposed the digesita , which is now called interpolazioni . He added the usufructuary into the scope of plaintiff and defendant, who in classic Roman law, both should be the owner. Had been ignoring the name and the original function of actio aquae pluviae arcendae , the definition of aquae pluviae was expended to all sorts of water, disregarded whatever its form was, while actio aquae pluviae arcendae was switched to a system that focus on the utilizing of the water: the owner of the property had a certain ownership of the rain water which fell on it; works that would deteriorate the supply of the water were forbidden; iure aquae ducendae came into the scope of the title; the owner of the land was obliged to maintain the drain establishments, or, in some case, was obliged to allow others to do so, for example, when a tenant farmer or a procurator was involved.

2 Objective

This article does not purport to provide a detailed sketch of actio aquae pluviae arcendae but only an outline of it. The main intent of this article is to analyze the ideology of Romans exhibited in actio aquae pluviae arcendae, that is a Roman type nature-artificial dichotomy, a variation of Greek Physis-techne dichotomy, and to illustrate its influence on the reforming of the system. Meanwhile, this article will attempt to elucidate how the Romans dealt with the changing situations by renovating the ancient legal systems without destroying it. By the analysis above, this article would show that the primary partition done by law is that what should be regulated by law and what should not, one factor affects the partition is the cognition of nature, which could be affected by the ideology and the external situations and technology. Thus, this article may lead to a conclusion that law is an arbitrary object with external limit.

3 Methodology

This research will try to study directly on the fonti of the roman law, mainly includes: (1) the Twelve Table Law; (2) Digest of Justinian; (3) Code of Justinian; (4) New Constitutions of Justinian. Mostly, the article relies on the fonti of D. 39, 3. The article will start with an esegesi, which is a specialized method in roman law research. Esegesi is a critical explanation or analysis, especially of a text, which follows certain rules, using linguistic, historical, logical and other methods. One may encounter the terms esegesi and hermeneutics used interchangeably; however, there remains a distinction. Esegesi is the interpretation and understanding of a text on the basis of the text itself. A hermeneutic is a practical application of a certain method or theory of interpretation, often revolving around the contemporary relevance of the text in question. Based on the statistics of the linguistic patterns of the Ulpian's writing, Honore indexed all his original works and pseudographs. Herewith, the texts chosen to be analyzed are those attributed to Ulpian, which might show the genuine complexions of classic roman law. When comes to time of Iustini, things become more complicated due to the interpolazioni of the digesta , which arise the need to distinguish the texts that contain interpolazioni from those not. Because of the lack of the research on such aspect in the country, the possible approach is to compare the texts from digesta with Codex , Novellae and the general research done by the scholars, so as to chase down the conflicts amongst the texts. Having known which texts of Ulpian are genuine, those contradict the opinions of Ulpian but fit Codex , Novellae could be figured as those contain interpolazioni . By doing so, this article might be able to tell a outline of the reform of actio aquae pluviae arcendae .

4 Significance

The significance of this research are as followed:

First, this article helps to solidify the standpoint that the law is an arbitrary object, it is not a mechanical reaction to external situations but blended with men's will. While legislating, the intentions and forecasts of the legislators should be considered, so as to codify the laws that not only suit temporality but fit future.

Second, this article exhibits the nature-artificial dichotomy of Roman ideology distinguished from the physis-techne dichotomy of Greek philosophy, owning to the factitious definition of nature, which suggest that it is not the philosophy but the ideology that really influences the law, because philosophy is an art that tends to question about the nature, while ideology is an convention that tends to confirm human affairs.

Third, this article introduces esegesi as a method of research, which might improve the popularization of normative approach to the fonti of Roman law.

5 Limitations of This Research

Because of my linguistical limitation, the materials used in this research are mostly written in Chinese and English. As the result, the analysis of the relevant legal theory appears to be not sound enough. Besides, the materials which I am able to acquire cannot sufficient meet the need of research, hence, during the demonstrating, I have to make some conjecture. To some extent, these may weaken the conclusion of this research.

6 Bibliography

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10. COULANGES, FUSTEL DE. La Cite Antique : Etude sur le culte, le droit, les institutions de la Grece et de Rome[M]. Trans. LIZHU, TAN. Paris Librairie De L. Hachettet et Cie Boulevard Saint-Germains N° 77, Paris. 1866.

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12. ROBY, HENRY JOHN. Roman Private Law in the Times of Cicero and of the Antonines[M]. Cambridge University Press, Cambridge . 1902.







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