The Historical Variation in Water Rights
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Description
At the outset let me admit that I do not know anything about the peculiar rules of any regimes in water rights within 5000 miles of Australia. The systems that I understand are the American markets and the English markets, especially with regard to the influences that the latter have had in shaping the operation of the former. What I propose to do here therefore is to offer a complementary approach to the one provided by Freebairn in Chapter 2 of this book. I hope to explain how it is possible to work through all of the problems he identified, not so much via the modern system designs for the administrative state, but looking at the institutional origins and evolution of water law through three stages: at common law, through legislation, and then ultimately through constitutional challenge, which counts as the hallmark of the American system. Water rights, precisely because they are so difficult to calibrate and so difficult to quantify, have proved to be the source of immense complexity not only at the theoretical level, but also in the fits and starts of their historical evolution. My task is to give some hints about its winding course of development. In searching for a convenient starting place, I can think of no better place to look than one of my favourite philosophers, John Locke, who for all his brilliance made a profound, and hence instructive, mistake in the analysis of water law. Our point of departure is the basic Lockean theory of the origins of private property which starts with the bald general proposition that any individual acquires ownership of a particular thing by ‘mixing’ it with his labour (Locke 1689). The proposition was said to be as good for the acquisition of rights in a litre of water as in an acre of land. If you can mix your labour in order to acquire title to land, then you can mix your labour to remove water from the fountain and thereby make the water your own. There is no doubt that the first part of this proposition resonates with the common law tradition, which itself echoes the Roman, that in the initial position land was treated as a res nullius, or literally, as a thing owned by no one. Individual acquisition by taking possession was thought to be appropriate to the common lawyers no matter how much or little labour was used (so in that they rightly differed from Locke in calling for less stringent conditions for ownership). But at the same time both the Roman and English tradition of customary water rights differed sharply from the Lockean conception on water rights. Water in the original position was regarded not as a res nullius, but as a res commune, that is, as property that was owned by the community at large, although the precise domain was never specified. The jurisdictional issues, such as the one that Freebairn referred to in Chapter 2 over the boundaries between Melbourne water and county water, were left unaddressed in the original common law and Roman formulations, which aspired to a higher level of universality. For our purposes, however, the important point about the term, res commune, is that it establishes a background legal environment for water rights that is the exact opposite of what it is for land. As a first approximation, the paradigmatic act for acquiring ownership of land (reducing it to private possession) now constitutes the quintessential violation of the communal rights to water. The fundamental inquiry into the formulation of property rights in these two settings is this: what accounts for the profound differences in the starting point for the allocation of property rights in these two regimes? Once their polar differences are explained, the follow-up question is whether courts or legislatures find ways to soften these differences as the details of the overall systems get fleshed out.
Source Publication
The Evolution of Markets for Water: Theory and Practice in Australia
Source Editors/Authors
Jeff Bennett
Publication Date
2005
Recommended Citation
Epstein, Richard A., "The Historical Variation in Water Rights" (2005). Faculty Chapters. 400.
https://gretchen.law.nyu.edu/fac-chapt/400
