Protecting Ecological Integrity within the Balancing Function of Property Law
Frazier, Terry W., Environmental Law
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)
I. 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. …