Les usages traditionnels de l'eau à l'épreuve du droit de l'environnement

Gaëtan Bailly 1
1 IDE - Institut de Droit de l'Environnement
EVS - Environnement Ville Société
Abstract : Water is a fundamental natural element in the formation of human communities that have gathered around it. These water societies are organized according to the resource that bases the legal links between their members. We notice the existence of an ecological solidarity that binds people together and leads to the emergence of rules of law based on the practices implemented within these communities. Generally referred to as customs, these rules are spontaneous because their promoters are also the receivers, and are transmitted on the scale of an identified group that ensures their sustainability. The uses of water then designate both the uses that are made of the resource, and the rules of law they induce. The generalization of a common law with a unifying purpose of the French legal system leads to the marginalization of the existence of traditional systems of law. However, some rural areas still apply spontaneous and customary rules for the exploitation of water resources for irrigation or fish farming purposes. Customary law and the common law that applies to water seem to be opposed. These uses are then confronted with the rules dedicated to the protection of property rights and the environmental preservation. Although their purposes differ radically, the spontaneous right contributes to the achievement of the objectives of environmental law insofar as it contributes to a balanced and sustainable management of the water resource. The renewal of the legal forms of the traditional rules makes it possible to envisage the coexistence of these two normative orders on certain rural territories in the perspective of devoting a legal pluralism.
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Submitted on : Monday, May 13, 2019 - 5:47:00 PM
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Gaëtan Bailly. Les usages traditionnels de l'eau à l'épreuve du droit de l'environnement. Droit. Université Jean Moulin (Lyon III), 2018. Français. ⟨tel-02127885⟩

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