Protecting ecological integrity within the balancing function of property law.

• Author: Frazier, Terry W.

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.... The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.(1)

1. INTRODUCTION: THE BALANCING FUNCTION OF PROPERTY LAW

   Understanding the process by which property rules are produced and shaped is important, because those rules define what an owner may or may not do with her resources, which is to say that the rules define her property rights.(2) Property law provides society with a means to peacefully resolve a dispute between a resource owner and other persons who may be affected by the owner's use of her resource. In the excerpt quoted above from The Common Law, Justice Holmes shared his insight on the process by which a court interprets property rules.(3) Holmes's description of factors that influence the process includes "[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men."(4) Judges are not the only property rule makers who are influenced by such considerations when they create, interpret, or apply property rules. Legislators and regulators are influenced by the same factors when they create or apply property rules within their own domains.

   Legislatures, courts, and administrative agencies must be guided by principles in the process of creating, interpreting, and applying rules to resolve property disputes. Without guiding principles, the resolutions could appear to be arbitrary--too dependent upon the prejudices which all rule makers share with other people--and the public could lose faith in the legal system as a peaceful forum for dispute resolution. One such guiding principle might be to limit an owner's control over her resources whenever necessary to preserve social order. Another such guiding principle might be to maximize an owner's control over her resources in order to broaden the range of utility-generating choices available to her in the market.(5) When balancing such widely variable and sometimes contradictory principles, property rule makers must be open about the process and try to harmonize the competing principles, to the extent those principles can be reconciled with each other, in order to maximize the legitimacy of the resulting property rules.

   This Article is about the balancing process by which legislatures, courts, and administrative agencies create, interpret, and apply property rules, with preservation of ecological integrity as one of the guiding principles in the balance. Recently, property rule makers have begun to recognize the need to protect the integrity of biotic communities upon which we depend for our sustenance as an important principle that should help guide the balancing function of property law.(6) Such rule makers have begun to rely explicitly on natural sciences, such as biology and ecology, along with social sciences, such as economics and philosophy, to inform the "intuitions of public policy, avowed or unconscious,"(7) that help shape our property rules. When the concept of ecological integrity is understood correctly to include human cultural, economic, and political needs within the ecosystems humans inhabit, preserving ecological integrity should be one of the most important guiding principles in the balancing function of property law.

   I will review the importance of having principles to guide the balancing process in the remainder of Part I of this Article. I also will review the current debate about private property rights in American law and politics, because this debate illustrates the dangers of ignoring the guiding principles and relying too much on felt necessities of the time, prevalent moral and political theories, intuitions of public policy, and commonly shared prejudices when creating, interpreting, or applying property rules. The private property rights debate also illustrates one of the dangers of not including human needs in considerations of ecological integrity. In Part II of this Article, I will raise three basic questions: 1) who balances competing principles in order to craft a property rule, 2) whose interests does a rule maker consider in the balancing process, and 3) how do various rule makers strike such balances. In Part III of this Article, I will review the eight guiding principles that a property rule maker typically must consider in the balancing process. Finally, I will conclude in Part IV that, by viewing the balancing function from an ecological--or Green perspective--rule makers can gain new insights into the scope of the community that might be affected by an owner's use of his or her property and thereby better appreciate the need to protect the ecological integrity of such a community with property rules.(8) Recognition and appreciation of the importance of ecological integrity should address where humans fit in biological communities and emphasize the harmonization of human interests with the interests of other components of the biotic communities--the same communities upon which humans and other living things depend for their sustenance.

   1. The Need for Principles to Guide the Balancing Function

      Property rules will more closely reflect prevailing community standards concerning reasonableness of expectations for resource use (and thereby better maintain the confidence of citizens in the legal system) if our property rule making institutions focus more explicitly on the principles that guide the balancing process by which such institutions create, interpret, or apply property rules. When the guiding principles are not clearly the focus of the rule making process, there is too much risk that a rule maker might shape a rule more according to "the prejudices which judges [and other rule makers] share with their fellow-men"(9) than according to community standards of reasonableness. Fears of the influence of such prejudices undermine public confidence in the legal system. Rule makers also must approach the balancing process as a process of harmonizing guiding principles, instead of a process of making all-or-nothing choices between competing interests on the basis of which interest carries the greatest weight.(10)

      The first step toward learning to harmonize competing interests is to identify the principles that guide the balancing function of property law. One of those guiding principles emphasizes individual control of resources to protect various freedoms, while other guiding principles emphasize community interests with deep roots in traditional property law. The individual interests include protection of a resource owner's political and economic freedoms, plus protection of those same freedoms for other individuals who may be affected by the owner's use of the resource. The community interests reflected in the guiding principles include protection of a community's need to: 1) preserve social order by fostering public reliance upon the legal system as a means of peacefully resolving disputes, 2) have reliable property rules that encourage adding value to resources through investment of labor and capital, but that also are flexible enough to adapt to new situations or new information, 3) prevent aggressors from confiscating the resources of other members of the community by force, and otherwise protect public health, safety, morals, and welfare, 4) prevent one resource owner from using her resources in a manner that unreasonably interferes with other community members' abilities to use and enjoy their own resources and community-owned resources, 5) prevent a resource owner from using her resources in a manner that unreasonably infringes upon enjoyment of fundamental civil rights by other members of the community, and 6) preserve the integrity of the ecosystem from which the community draws its common resources, such as air and water.(11)

   2. The Balancing Function and the Property Rights Debate

      In a world of finite resources, the number and complexity of resource-use conflicts grow as population density grows. Increases in population cause demand for consumption of those finite resources to grow correspondingly. "[W]hat is then understood to be convenient" becomes more difficult to determine.(12) Scarcity of resources also seems to sharpen disagreement about "the prevalent moral and political theories" that should be considered by property rule makers.(13) In addition, as we learn to gather and manage more and more information about the consequences of resource consumption, the "felt necessities of the time" and "intuitions of public policy, avowed or unconscious," appear to take on greater importance and even different meanings.(14) The balancing exercise becomes increasingly difficult for all property rule makers as the frequency and intensity of property conflicts grow.

      At various periods in our nation's history, major social changes have pushed our property rule making institutions to the limits of their capacity to harmonize principles that guide the rule making process. Rule making institutions have had difficulty adapting property rules fast enough to continue to serve society's new needs at times of rapid social change.(15) When rule making institutions try to introduce new guiding principles to the balancing process, those institutions become especially vulnerable to criticism that new rules, created in accordance with the new principles, give too much weight to some considerations and not enough weight to...