Property as capture and care.

AuthorHirokawa, Keith H.
  1. INTRODUCTION II. SEEING CAPTURE AND CARE IN PROPERTY A. Legitimate Property Expectations in Transfers of Title: Capture, Relationship, and Responsibility 1. Adverse Possession 2. Termination of Co-Tenancy: Partition 3. Conveyancing: Caveat Emptor and Informational Duties B. Interests in the Property of Others: Capture, Context, and Community 1. Nuisance Law 2. Eminent Domain and Public Use C. Interests in Natural Resources: Capture, Nature, and Collaboration 1. The Public Trust 2. Groundwater: Capture and Correlative Rights D. Regulatory Care of Market Captures: Land Use and Environmental Law 1. The Local Exchange Between Capture and Care: Land Use Control 2. The Federal Negotiation: Environmental Law and Pollution Prevention III. REMARKS ON SKETCHES OF A PROPERTY JURISPRUDENCE OF CARE IV. CONCLUSION I. INTRODUCTION

    This article explores the idea that property is essentially a process of negotiation between two often competing, but ultimately complementary, aims. On the one side, property confirms that an individual has, according to the rules set forth to govern the task of acquiring or legitimizing an expectation, successfully reduced another (thing, idea, place) to her control by way of creation, domination, or deprivation of the other's liberty. This is illustrated in the rule of capture, and is often thought to trigger the right to govern the property exclusively and individually. (1) Yet, whether by design or evolution, domination provides a limited explanation of how and when certain expectations become protectable as property. As a simple example, we might note that capture does not provide a helpful or consistent explanation for the regulatory controls on land use and environmental law, circumstances which cause us to frequently (but not successfully) revisit absolutist visions of property protection. (2) Or, in a more difficult example, we might question how Mr. Popov was vested with an interest in the notorious baseball, even though he was unable to demonstrate domination and control. (3) This other side of property--the noncapture side--is often portrayed as an exercise in equity, an incorporation of the notion of reasonableness, or even an integration of an interest that is something other than an individual's stake, and in either event arises as what will be referred to herein as the "care" side of property.

    To explain this notion of care, (4) this article borrows from ecofeminism, (5) an approach to environmental ethics that "makes a central place for values of care, love, friendship, trust, and appropriate reciprocity--values that presuppose that our relationships to others are central to our understanding of who we are." (6) The point of associating with ecofeminism is, in part, to recognize ecofeminism for providing the foundations for an ethic of care in land, but also to propose that ecofeminism be taken seriously in understanding the relationship between land, nature, and property. As Marc Poirier notes, "[c]are is productive and fruitful, like information, and it generates further fruitful, uncertain, and unexpected downstream positives." (7)

    However, it is not the purpose of this article to provide a general defense of ecofeminism, or to incorporate into this discussion the very central roles that gender and nature play in understanding the oppression of the other. (8) Rather, the intent here is to use the framework of care, and the incidents of that ethic in the allocation of property, to better understand the process of property and the character of rights in property law: "Whether something is inside or outside the marketplace of rights has always been a way of valuing it." (9)

    The methodology employed in this analysis is pragmatic: this analysis examines the legal system, as it is, to identify an appropriate context for an examination of the concept of care and its potential impact, possible influence, and frequent commensurability with property law. (10) The simple--and perhaps oversimplified-approach used to illustrate this point is to distinguish the doctrine of capture (and counterparts throughout property and environmental law) from non-capture legal doctrines. Capture, of course, would seem to epitomize what ecofeminists have identified as "the logic of domination," (11) by grounding property entitlements in the mere ability to possess and control, by encouraging aggressive behavior, and by rewarding the destruction of others in the world. (12) Laws that are conceptually contrary to capture, which are variably (but not interchangeably) referred to as "non-capture" and "care," are identified for their potential to further a dialogue on an ecofeminist presence in law. In this analysis, attention to the negotiation between capture and care in the law provides fuel for an interesting dialogue on the potential of ecofeminism in the law: noncapture doctrines have developed sometimes in reaction to, but other times without regard for, an underlying framework of domination, use, consumption, and destruction. Or, at least, noncapture doctrines can be easily distinguished from such a framework. What is left to be determined is what values are expressed in non-capture doctrines, and how those values intersect with ecofeminism and its embrace of care, context, community, and collaboration.

    To contextualize this approach to property analysis, the argument begins in Part II by introducing the negotiation between capture and care as essential to an understanding of the process by which law legitimizes expectations into property rights. This part attempts to identify strains in property rights that are open to the negotiation process, how property acquisition and ownership is consonant with the tenets of care, and how this interpretation of property, environmental law, land use regulation, and natural resource allocation illustrates some surprising ways in which the legal structure of property supports an ethic of care. Part III provides some remarks on the extent to which this project, or further parallel research may provide valuable insights for a jurisprudential project concerning property, nature, and the natural.

  2. SEEING CAPTURE AND CARE IN PROPERTY

    We often discuss the rule of capture as a first possession doctrine that falls from the frustrations of a fox hunter who, by luck or lack of skill, chased a fox to the point of exhaustion, but was unable to dominate the beast. (13) Whether the hunter was endowed with the skill to complete the hunt will never be told, as the hunt ended abruptly without his consent or charge. (14) Instead, the hunter's efforts were intercepted by Pierson, the meddling interloper who was able to capture and kill the fox. (15) Between these two parties, asks the court, who is entitled to the spoils of the hunt? The Pierson court easily concluded that a ferae naturae--a wild, unowned thing, the life of which is led by its own natural liberty--does not become property simply by an intention, by donning special hunting shoes, or purchasing and training "hounds of imperial stature." (16) Rather, a thing becomes property when humans exercise dominion, reduce the thing to control, and effectively transform the thing from its state of natural liberty. (17)

    Ecofeminists converge upon the notion that an ethic that allows, encourages, or even rewards acts of domination is responsible for the manner in which both nature and women have been subjugated under rights-based legal schemes. As a result, there are some fairly obvious reasons that capture might be subjected to the concerns of ecofeminism and its endorsement of the ethic of care. Certainly the name itself-capture--invokes the image of a fiercely competitive and aggressive subject, one that by the rules of the game would not translate well into the principles of care, community, and collaboration that underlie ecofeminism. More importantly, the rule of capture neatly excludes these principles by targeting not the manner in which rights among neighbors are structured to provide a purportedly just result, so much as in calling the captured thing "property": (18) "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." (19) Ecofeminism's critique of the logic of domination is particularly salient here: the notion that domination of another entity gives rise to a right to dispossess and exclude, rather than results from an entitlement, encourages domination rather than respect, and the apologetic search for justification for this logic (e.g., that a clear rule such as capture serves efficiency (20) and has long-since been this way) (21) fails to support its continued existence. (22) In addition, the Cartesian distinction of subject and object--not to mention the nature of the tension between the two in the rule of capture--could not be mistaken for easing the rule of law into a cooperative negotiation over resource allocation and use. The Lockean notion of desert underlying capture seems to assume that uncaptured, unconsumed, and unused resources are valueless: the doctrine refuses to value non-use. (23) Even the public policy concern of the dissenting judge in Pierson, who overtly seeks a legal doctrine intended to encourage the immediate and total destruction of the species, reeks of the logic of domination. (24)

    There are other, equally important analyses at stake here involving the method of law's foreclosure of voice and vocabulary. For instance, by defining the terms under which a right of first possession can vest, the rule of capture assumes that capturable property is encountered as unowned, unoccupied, or otherwise not subject to another competing claim. Yet, in general, the condition precedent for first possession is historically and ecologically unsound, as the property at issue in all capture cases was at least occupied by some entity or community (Native Americans...

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