Property in the Twenty-first Century:

• Publication year: 2021
• Author: Written by Philip A. Williams

PROPERTY IN THE TWENTY-FIRST CENTURY:

HOW THE LAW REGARDING WATER RIGHT CURTAILMENTS THROUGH EMERGENCY REGULATION FAILS TO RECOGNIZE DIGNITY AND WHY IT MATTERS

Written by Philip A. Williams¹

"We shall overcome because the arc of the moral universe is long but it bends toward justice."

—Dr. Martin Luther King, Jr.

In everyone there is some longing for humanity's rightful dignity, for moral integrity, for free expression of being and a sense of transcendence over the world of existence.

—Václav Havel

What is at stake for us when we choose to live in a liberal democracy is not merely the fact that it allows us the freedom to make money and satisfy the desiring parts of our souls. The more important and ultimately more satisfying thing it provides us is recognition of our dignity.

—Francis Fukuyama

INTRODUCTION

In what has been called one of the most important books of the new century, Thomas Piketty's Capital in the Twenty-First Century takes the reader up a dizzying mountain of data to tell a story of the history of income and wealth distribution across the rich world. The figures are staggering-the potential consequences frightening. M. Piketty's observations are compelling. His views are honestly come by, and, at least in his following work, Capital and Ideology, clearly stated at the outset. Whether or not one agrees with those views is, by the man's own account, perhaps irrelevant. For in both works he invites us to engage in a larger conversation and insists that his two works are but a part of his contribution to that ongoing dialogue.

The thoughts in this article are in response to that invitation, albeit through the lens of property rights to water in California, especially in light of the past decade's repeated droughts and the State Water Resources Control Board's efforts to administer water resources. Beating at the center of the policy recommendations born from M. Piketty's observations is his perspective of what has driven what Georg Hegel and others describe as societies' progress toward the End of History. M. Piketty argues that "what made economic development and human progress possible was the struggle for equality and education and not the sanctification of property, stability, or inequality."² M. Piketty rightly encourages us to "rigorously analyze," among other things, "specific institutions defined by specific forms of property[.]"³

As Jeremy Bentham observed, "[p]roperty and law are born together, and die together."⁴ I assume most ELN readers are not primarily economists, but attorneys-charged with

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supporting and defending the laws that constitute us as people. We are in the midst of a great discussion, though at the moment that discussion more closely resembles a shouting match. This discussion, this dialogue, in part, touches on fundamental concepts of property-which, as attorneys, we understand is really about the law. It's worth a few pages to explore the nature of property and its relation to the law so that we are better equipped to engage thoughtfully in the ongoing dialogue of what our conceptions of property, at least as they relate to water, in the twenty-first century will look like.

WHY DO WE THINK WE CAN OWN THINGS, ANYWAY?

There are a number of theories that attempt to explain why we think we can own things. But, of course, as attorneys we understand that property is not the ownership of things. Rather, property "consists of a package of legally-recognized rights held by one person in relationship to others with respect to some thing or other object."⁵ This is the "bundle of sticks" with which we are all familiar with but should not pass over too quickly before moving on. Our American conception of property is premised on rights-rights to use, rights to exclude, rights to destroy, etc. And what is a right but an entitlement or protection recognized by the law and enforced by the State? Stated another way, "[p]roperty is not an intrinsic characteristic of things; it exists only as a matter of social convention when [people] agree to respect each other's property rights."⁶

Available theories that seek to explain why we believe we have a right with respect to some thing in relationship to another person include: first occupancy, labor-desert, utilitarianism, civic republican, personhood, libertarianism, Kant's categorical imperative, natural law, the green property movement, critical legal studies approach, and Rawl's theory of distributive justice. Each of the above theories is entirely salient as each is "embedded in a general moral theory which makes it difficult to use one argument to support, augment, or restrict another."⁷ This article picks up one of these theories, along with its "embedded . . . general moral theory[,]" for our collective consideration and ensuing discussion, operating under the premise that this particular theory does a rather sound job of explaining much of the energy around rights to water and the state's recent efforts to manage water resources in times of drought.

The personhood theory explains this energy well by drawing a direct connection between a person's sense of inherent worth or dignity and the rights to an object as they relate to others. Ms. Margaret Radin observes that "the relationship between property and personhood . . . has commonly been both ignored and taken for granted in legal thought."⁸ It is this oversight which this paper attempts to cure, echoing Radin's concern that "explicit elaboration of this perspective is wanting in modern writing on property."⁹ As better explained by Radin:

The premise underlying the personhood perspective is that to achieve proper self development-to be a person-an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights. . . . In addition to its power to explain certain aspects of existing schemes of property entitlement, the personhood perspective can also serve as an explicit source of values for making moral distinctions in property disputes, and hence for either justifying or criticizing current law.¹⁰

Hegel anticipated Radin's observations. As he was developing his theory of an End of History-a theory that explains most of the past two decades of American foreign policy and may explain much of the next couple decades of American domestic policy and the resulting law-he stated that a "person has as his substantive end the right of putting his will into any and every thing and thereby making it his."¹¹ For Hegel, and for Radin, a person may understand an object as a kind of objectification of themselves in the object.¹² This intimate connection between the person and the object forms the basis of defining the rights of others as they relate to that object-another's refrainment or forbearance in relation to the object is explicit recognition of the dignity of the person to whom the object belongs. Therefore, "Hegel sees property as a stage or aspect of the historical struggle for recognition, as something that satisfies thymos as well as [eros]."¹³

I believe the personhood theory provides an opportunity for constructive criticism of the current law regarding curtailments through emergency regulation and may go a long way in explaining much of the energy from water rights holders. And I believe we ignore or dismiss that energy at our collective risk for reasons that include both the moral and the practical.

THE LONG ARC OF HISTORY

We are all familiar with the method of instruction we benefitted from in law school, the so-called Socratic method. Most of us may understand this method to be a question-and-answer dialogue between the Professor, seemingly all-

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knowing, and the earnest, if not sometimes flailing, Student. However, the Socratic method as presented in Plato's Republic is actually centered on reciprocating dialogue as the participants drive toward an understanding of, for example, the nature of the good or of justice. This method is precisely the one used in the illumination of what would come to be known as the tripartite soul in Part IV of the Republic: logos, eros, and thymos. It is here in this contradiction-exposing dialogue that Socrates and his erstwhile student, Adeimantus, discover that logos (reason) and eros (desire) cannot fully account for the frustration, disappointment, and anger one may feel when one has failed to live up to their own sense of self-worth.¹⁴ Socrates and Adeimantus therefore discover a third part of the soul, thymos, to resolve the failure of a bipartite soul comprised only of logos and eros to explain that internal judgment.

Hegel picked up on the Socratic method and expanded upon it in what has been called the Hegelian dialectic. As explained by Professor Fukuyama:

For Hegel, the dialectic takes place not only on the level of philosophical discussions, but between societies, or, as contemporary social scientists would say, between socio-economic systems. One might describe history as a dialogue between societies, in which those with grave internal contradictions fail and are succeeded by others that manage to overcome those contradictions. Thus for Hegel the Roman Empire ultimately collapsed because it established the universal legal equality of all men, but without recognizing their rights and inner human dignity.¹⁵

The Socratic method, therefore, is a personal dialogue in an effort to arrive at a non-contradictory conclusion about an idea: the good, justice, the soul, etc.; the Hegelian dialectic views history as a exchange-an unspoken dialogue-between societies in an effort to arrive at a non-contradictory social and political construct. Hegel and his disciples believe liberal democracy is the End toward which History has been advancing.

This apparent frolic is relevant primarily because, as indicated at the beginning of this piece, exploiting M. Piketty's invitation and borrowing from his observations, we are participating in an ongoing discussion and it is important we...