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date: 16 July 2019

An Eco-Socio-Legal Perspective on Property Rights in Natural Resources: The Case of Water

Abstract and Keywords

This article sets out two key dimensions of an eco-socio-legal perspective for understanding property rights in natural resources: first, an analysis of how relationships between geographical place, law, and society shape the content and application of property rights in natural resources; second, an eco-socio-legal perspective foregrounds an analysis of how those who hold property rights to natural resources and third parties actually understand these rights, and thus how their meaning-making practices contribute to defining these rights. The first dimension of this eco-socio-legal perspective is fleshed out through a critical review of existing academic literature in the main Section 2 of this article. The second dimension is illustrated through a qualitative empirical case study of English farmers’ understanding of their economic rights to water in Section 3 of this article.

Keywords: law, society, property, natural resources, right to water, farmers

1. Why Does an Eco-Socio-Legal Perspective Matter?

1.1. Foregrounding Legal Actors’ Perceptions of Economic Rights to Water

Property rights are much more than specific legal structures. They are embedded in wider ideological belief systems. For instance, private property rights may be considered as the foundation of liberal democracy1 while unqualified property rights may be perceived as incompatible with communitarian governance.2 They can also be used as a regulatory tool in their own right, for example to achieve economic development3 or environmental protection.4 Most important, property rights in natural resources are also what those who hold rights and those who do not imagine them to be. This, in turn, can shape how these rights are exercised and hence what property rights in natural resources are “in action.”

Building on these ideas, this article develops a particular theoretical and methodological approach toward understanding property rights in natural resources. Its empirical example focuses on economic rights to water. These are rights of access to and use of water for economic production. Such rights may arise under the common law as riparian rights associated with ownership of land. They can also involve a human rights dimension when access to and use of water is an aspect of a right to private property, as protected, e.g., by Art. 1 of Protocol 1 of the European Convention of Human Rights. Moreover, economic rights to water may be derived from abstraction licenses issued in accordance with administrative environmental law. Hence, the example of water illustrates that various types of legal rights can be at stake when the umbrella term “property rights in natural resources” is invoked, and these rights are fleshed out in practice through a range of social norms.

1.2. Place Matters for Understanding the Relational Nature of Property

The eco-socio-legal perspective outlined in this article starts from an idea that is well established in the literature, i.e., the idea that property rights have to be understood as embedded in and thereby shaped by the society in which they arise. This involves analyzing the social norms and relationships which inform the definition and application of property rights in natural resources. Hence, property rights are understood as relational in nature.

They usually involve one party, the rights holder to request a particular act or forbearance of another—including legal persons—in relation to a thing.5 More specifically, property rights in natural resources provide powers to those who hold rights to do various things, such as to use the natural resource, to make decisions in relation to its management, and to earn income from it, the latter being referred to in Roman law as usufruct rights.6 Property rights are distinguished—at least in theory—from open access regimes, since the former usually include a right to exclude others from the use of the resource. This relational dimension of property rights can also be illustrated with reference to economic rights to water. Such rights are relational in the sense that they usually involve trade-offs between the claims of different users of water. These trade-offs matter because they can give rise to transactions costs that are associated with establishing institutions and rules for administering such trade-offs. Moreover, trade-offs have implications for distributional equity.7 Property rights are also relational in the sense that they are not self-executing. They only exist because people act in accordance with what they understand these rights to be.8

An eco-socio-legal perspective seeks to add three further analytical dimensions to this relational perspective on property. First, it considers social norms and relationships as pervasive and thus as informing a whole range of property rights in natural resources. In contrast to this, the academic literature on property rights to natural resources focuses more on social norms in the context of common-property regimes, where social norms are more visible and often necessary in order to solve collective action problems about accessing and using the resource.9 Second, and most important, an eco-socio-legal approach seeks to understand how law, in particular property rights to natural resources, are informed by social norms and relationships, and how, in turn, such law and society interactions are shaped by the particular places in which they occur. Why does this matter? By considering the place-based characteristics of property rights in natural resources, an eco-socio-legal approach seeks to address an empirical puzzle that is becoming increasingly significant in the governance of natural resources. On the one hand, we see in some jurisdictions a move toward eradicating the place-based distinctness of natural resources by commodifying them and making them fungible and exchangeable in markets For instance, Chile, Australia,10 and California have established markets in water. The United Kingdom is considering doing this in the context of reforming its abstraction regime.11 On the other hand, governing natural resources with reference to the characteristics of the geographical spaces in which they are located is a continuing objective of public policy in relation to water resources, also in those jurisdictions that have established markets in water. This entails, e.g., organizing administrative authorities and plans for water resource management along the contours of the natural space of the river basin.12

Third, an eco-socio-legal approach does not consider interactions between place, law, and society in abstract but suggests that we should understand these interactions with reference to how those who hold rights in natural resources perceive them. Hence, in methodological terms, this article makes a case for empirical research about the interactions between place, law, and society in order to understand property in natural resources. This provides a critical gloss on abstract legal categorizations of different property rights that have been developed in the literature, such as individual private property,13 collective and common property14 as well as “new property,”15 progressive property,16 and state property.17 The article suggests that these different property rights can in practice overlap and that social norms and relationships at a micro-level are important for shaping these rights. Section 2 further fleshes out these three dimensions of an eco-socio-legal perspective.

2. Key Features of an Eco-Socio-Legal Perspective

2.1. Adding Place to Law and Society Interactions

An important strand in “law and society” scholarship about property is the relational property literature. It understands property as shaped by social relationships between those who hold rights and third parties who incur obligations in relation to rights holders.18 Some contributions to this literature provide empirical accounts of such relationships. A key insight of the relational property literature is that rights are understood to be more complex than simply rules.19 Property rights are perceived as the consequence of a wider set of rules about the use of the natural resource. They can include rights to management, exclusion,20 and alienation.21 They are often associated with duties in relation to the natural resource, such as its conservation or equitable use.

This relational perspective—in particular when it is informed by empirical research—can thus show that a particular type of property right, such as collective property in natural resources, can actually take on various meanings. For instance, rights holders may have rights of entry to the resource, without having the right to withdraw proceeds. Moreover, rights of withdrawal of proceeds may not be accompanied by rights to manage the resource.22

Some contributions to the literature have therefore developed new terminology for property rights in natural resources in order to capture the range of entitlements that can be associated with them. For instance, there may be “authorized users,” “claimants,” “proprietors,” and “owners.” “Authorized users” hold operational level rights of access and withdrawal. These rights are residual to and defined by those who hold management and exclusion rights to the natural resource.23 “Claimants” possess the same rights as “authorized users” and—in addition—the collective-choice right of management,24 while “proprietors” hold collective-choice rights to participate in management and exclusion, but they cannot alienate these collective-choice rights.25 In this new classification “owners” have the strongest rights since they not only have collective-choice rights of management and exclusion, but they also have a right to alienation. This means that they can sell or lease their collective-choice rights.26

This relational and empirical perspective illuminates how legal actors actually exercise their rights to resources. It captures that a de jure “authorized user” of a natural resource may be a de facto “claimant.”27 Moreover, this perspective highlights that both “owners” and “proprietors” are more likely than other rights holders to make long-term investments in the maintenance of the natural resource, while “claimants” may be particularly interested in developing “good” governance structures for the resource.28

But this relational perspective does not explicitly consider how geographical spaces may shape property rights, though the features of a particular geographical location can determine whether it is actually possible to define property rights and what their content may be. An eco-socio-legal perspective thus asks how geographical place may shape law and society interactions in property rights in natural resources. This does not entail reifying geographical space, in the sense of treating it as a concrete, objective, pre-given phenomenon, but to recognize that geographical spaces can be socially constructed. What counts as a geographical space, such as a river basin, and what are perceived as its characteristics are also influenced by human actors’ meaning-making practices. For instance, the boundaries of a “river basin” are not self-evidently the boundaries of a particular watershed, but may be the boundaries of the jurisdiction of an administrative authority established to manage water resources.

For economic rights to water there are two ways in which the characteristics of geographical spaces may shape the meaning of such rights. First, the characteristics of the places in the natural environment from which water is abstracted can shape whether it is actually possible to define property rights in water and what their content may be.29 For instance, the accessibility of terrain in which water is abstracted can have a bearing on whether it is technically feasible and financially viable to set up water-supply infrastructure which is a precondition for defining property rights in water.30 Moreover, physical linkages between water bodies through canals and pipes can determine the content of a property right to water, i.e., whether the right is actually secure or at risk of interruption.31 Such physical linkages can also determine whether it is possible to pump water to different abstractors and thus make alienation of property rights in water a reality by enabling transfers of and thus trade in entitlements to water.32 Moreover, the hydrological characteristics of a river in a particular geographical space can shape the content of a property right to water.33 The high variability of water flows in the Murray Darling Basin in Southern Australia—for example—means that a right to water cannot be defined as an allocation of a specific volume of water to an abstractor. Instead water rights are defined in terms of how reliable the abstraction of water is, with a distinction, for instance, between high and low reliability water allocations.34 Similarly, in areas of a river basin in which there are dams, leading to significant amounts of water being stored, more reliable private property rights in water can be defined than in areas where there is limited storage of water35 and thus also greater vulnerability to seasonal fluctuations in water availability.

But geographical space can also shape in more specific ways how rights to water can be legally framed. For instance, in river basins with centrally administered dams it is possible to establish rights to water with reference to a “priority doctrine.” This means that the rights of earlier water users are ranked above those of later water users. The possibility to store water enables to guarantee the earlier water user rights even if subsequently further entitlements for other abstractors have been established. In contrast to this, in river basins without centrally administered dams, water is more likely to be allocated with reference to a proportionality doctrine. This means that larger volumes of water are only available to those to whom high reliability water rights have been allocated. Moreover, whether rights are allocated with reference to a priority or proportionality doctrine can have a bearing on whether these rights to water can be truly considered as private property rights, in the sense that they include the right and possibility to alienate them. For instance, water rights defined with reference to the proportionality doctrine—i.e., their reliability—are less different from each other than water rights allocated in accordance with the priority doctrine. Hence, a range of rights defined with reference to their reliability are more alike and exchangeable, and thus more tradeable in markets.36

This attention to place in the definition of property rights to water captures an interesting paradox. While place can initially significantly shape the nature and content of the private property right, once markets in water have been set up, that significance of place may lessen or change. For instance, where rights to water can be sold and bought, water entitlements can become decoupled from particular stretches of land. In the context of developing countries, this often means transferring water from farming to urban water supply or industrial production.37

Second, not just the characteristics of the geographical places from which water is abstracted but also the features of spaces in which water is “consumed” can have a bearing on the nature and content of a right to water. For instance, in locations where vegetation has a high rate of evapotranspiration, there will be a higher return flow of water back from the abstraction into the hydrological cycle.38 This, in turn, will affect how much water is available for future abstractions and thus how reliable such abstraction rights to water are. Moreover, if there are significant return flows of water, new informal rights to use that water may be created.39

Hence, in emphasizing the different ways in which place can transform law and society interactions that inform property rights in natural resources, an eco-socio-legal perspective does not add an independent category of place to law and society interactions in order to explain the nature and specific content of various property rights to water. Instead an eco-socio-legal perspective traces how law and society interactions are shaped by place-based contexts.40 It can thus also contribute to a comparative understanding of economic rights to water in different jurisdictions. Somewhat counterintuitively, it can render visible that there may be similarities between social norms and legal rules in relation to the use of water even in different locations. For instance, Jambudwip fishers from the Bay of Bengal in India fish in accordance with a customary norm that stipulates that once an area of fishing has been claimed by a crew, that area will belong to it for the remainder of the fishing season.41 A similar legal rule in Californian water law, the “priority doctrine”, protects “senior” rights of earlier claimants to an abstraction of water from infringements by later, more “junior” abstractors.42

By adding “place” to an analysis of intersections between law and society, an eco-socio-legal perspective also builds on literature that has examined human attachment to place and relationships between law and geography. Literature about attachment to place has pointed out the positive psychological effects of attachment to place, including natural spaces, which is considered as building on attachment to people.43 In addition to this, the law and geography literature has highlighted that places are socially constructed and performed, for instance, through the creative ways in which leaseholders and owners relationally define “boundaries” around property,44 as well as through material artefacts, such as maps and the technical instruments that enable surveying of land.45 This literature also points to an analysis of “place” advancing critical thinking about how the social construction of places and knowledge about them, for instance, through the academic discipline of geography, have contributed to colonial relationships of power.46 Some of this literature, though, seems to assume a core essence of place and thereby reify it. It locates place empirically, for instance, in the conceptions and practice of place by indigenous communities.47

An eco-socio-legal perspective is different from these literatures in two ways. First, it foregrounds human meaning-making practices while recognizing that material artefacts can also shape these. Hence, an eco-socio-legal perspective is not necessarily associated with the specific theoretical position of actor-network theory. Second, an eco-socio-legal perspective starts from a particular stance on “place.” It does not consider “place” as a neutral variable—but through the term “eco” signals that “place,” in the sense of natural spaces, is the critical, necessary foundation for the development and continued existence of societies and their legal orders. From this flows a normative commitment to recognize the limits and value of the carrying capacity of ecosystems as foundational to but also shaped by law and society interactions.

To conclude, according to an eco-socio-legal perspective, geographical place matters since it can transform law and society interactions that inform property rights in natural resources. This, in turn, seeks to address a limitation of some contributions to the literature, which pose a circular relationship between legal and social norms, including social relationships as shaping property rights in natural resources.

2.2. The Triad of Place, Law, and Society: Going Beyond a Circular Relationship Between Legal and Social Norms Shaping Property Rights in Natural Resources

Some contributions to the literature on property rights in natural resources portray the relationship between social norms and relationships, on the one hand, and legal rules, on the other hand, as circular. Social norms are understood to shape how legal rules define property rights, but such legal rights are also, in turn, considered as shaping social norms in relation to how the natural resources are used.48 This circular relationship has limited analytical purchase also because it leaves open whether we should consider social norms as distinct normative orders, and thus external to legal rules, or as more integral to the definition of the obligations flowing from formal state law. This matters not just for the sake of analytical clarity but also for addressing normative questions, i.e., whether and how social norms can be harnessed as an independent force for promoting, e.g., stewardship in relation to the use of water.

So how have social norms and relationships been considered so far in the literature on property rights in natural resources, and how has this created an image of circular relationships between social norms, and relationships, on the one hand, and state law, on the other hand? Social norms and relationships have been considered both on a macro- and micro-level. For instance, it has been suggested that on a macro-level social stratification according to socio-economic class, caste, and gender49 can shape how common-pool resource regimes operate because social stratification can lead to, for instance, unequal distribution of access to and benefits from natural resources. For instance, access to natural resources can be granted by social institutions, such as markets, or through direct personal transfers, such as inheritance and intragenerational gifts. Access can also be provided as a result of labor or other benefits invested in the resource, or simply as the result of customary use of the resource over time. Access can also be the result of rights in the natural resource granted by the state, or be gained through membership in a community that has established a common-property regime.50 All of these different paths to accessing property rights in natural resources can be shaped by systems of social stratification, such as socio-economic class, caste, and gender or various intersections of these.

Also, the distribution of benefits from common-pool resources can reflect systems of social stratification, e.g., along socio-economic class. For instance, benefits from common-pool resources, such as community forests, may accrue less to poorer than richer sections of the community. Poorer sections of the community have few private property claims to a range of assets.51 Those who own livestock will benefit more from forest resources, such as tree and grass fodder, as well as leaf litter, than those who do not own livestock. In addition, collective property regimes may involve charges for the extraction of benefits from the common-pool resource, such as timber from a community forest. Those of a higher socio-economic class who can pay for more benefits from the common-pool resource will thus obtain greater returns from their collective property right.52 But this also means that those of a lower socio-economic class are less dependent on the common-pool resource than richer households.53

A further example of a circular relationship between social stratification according to economic status and legal property rights in natural resources is the shift from common to private property regimes through past and contemporary enclosure movements. During medieval times changing social norms about using land as a gainful resource was the precursor for the enclosure of commons in England by feudal lords.54 The feudal lords appropriated land which they had formerly co-owned with peasants in order to increase the proceeds they could obtain from the sale of timber from these lands,55 as well as from commercial wool production from grazing sheep.56 Private property rights further enhanced the socio-economic status of feudal landlords in comparison to the peasants, who had become landless workers on the feudal estate.57 An example of contemporary enclosures is the creation of private property rights in fisheries through the establishment of exclusive economic zones along national shore lines up to 200 nautical miles into the open sea, such as the US portion of the North-Pacific.58

But not just social stratification according to socio-economic status, also gender has been considered as important for shaping property rights in natural resources, in particular in developing countries. Property rights sometimes benefit men more than women.59 In comparison to class, gender can be a more subtle and often informal system of social stratification. This can work to women’s advantage since informal rules in relation to property use may be more easily reformed in women’s interests than formal law.60 But informality may also disadvantage women in particular when it is associated with the invisibility of their labor in relation to natural resources. This may make it more difficult to claim formal, secure access to and benefits from the natural resource. For instance, male agricultural labor on the land may be visible as a specific output per crop. In contrast to this, women’s work in a community may involve tending vegetable household subsistence patches, as well as looking after cattle. These economic activities may feature less in official, e.g., statistical accounts of who is using what natural resources for specific benefits.61

Less benefits for women than for men in common-property regimes may be further entrenched when gender and socio-economic status reinforce each other. For instance, women who are significantly poorer than men may not be able to access pumps that are necessary for drawing water or finance the purchasing of fishing boats that are necessary to take advantage of commons rights in fisheries.62 More limited or less secure property rights for women in natural resources may further reinforce this scenario. For instance, less secure land rights for women may make it more difficult to use the land as collateral for loans needed for improving women’s economic position. Hence, being financially disadvantaged may mean that women secure less benefits from their limited rights to land.63

To summarize, a socio-legal perspective reveals how macro-level relationships, such as entire systems of social stratification according to socio-economic status and gender, can shape legal property rights to natural resources. This provides interesting analytical and critical insights but also runs the risk of portraying a circular relationship between social norms and relationships, on the one hand, and legal rules, on the other hand. The argument is that social stratification shapes property rights, and once these legal rights in relation to property are established, these legal rules further entrench social stratification. Property rights in natural resources also further entrench social stratification because different types of these rights can reinforce social hierarchies, such as hierarchies that rank human over nonhuman beneficiaries of natural resources. For instance, entitlements to water for the benefit of fauna and flora in the natural environment are in some jurisdictions subordinate to the rights of commercial users to abstract water.64

But this tendency in the literature to portray a circular relationship between social norms and legal rules is not just confined to the discussion of macro-level systems of social stratification. It also features in discussions of how public policy shapes the development of property rights in natural resources. The argument here is that social norms contribute to the development of public policy, which in turn can shape the judicial development of property rights. For instance, changing economic, social, and natural conditions of water abstraction can influence public policy in relation to water. This, in turn, has sometimes influenced judicial decisions in relation to economic rights to water with these judicial decisions further shaping social norms in relation to water use.65 For instance, Californian water law recognized “appropriative uses” of water. This involved the taking of water by companies which did not have riparian rights and sold this water to miners.66 Californian state law then stipulated with reference to the “doctrine of relation” that appropriative users of water should take water with due diligence in proportion to the size of the intermediary’s enterprise.67 This meant that appropriative users were expected not to generate “unreasonable waste” but were not required to use the most advanced methods for efficient water use.68

To summarize, some contributions to the literature on property rights in natural resources that have explored law and society interactions pose a circular relationship between social norms and relationships, on the one hand, and legal rules, on the other hand. As mentioned previously, this matters also because it gives rise to another analytical challenge. It leaves unresolved whether we should think of social norms as more external or internal to legal rules. Some accounts that examine preexisting, entrenched social stratification as shaping property rights consider social norms as external to formal state law. But other contributions to the literature portray social norms as closely intertwined with legal rules. For example, social norms in relation to efficient water use may be directly translated into conditions imposed in abstraction licenses with such conditions requiring, for instance, particular irrigation systems in order to ensure efficient water use in farming.

Clarifying whether we consider social norms as more external or internal to legal rules matters not just for the sake of analytical clarity, but this can also have normative implications. For instance, if we consider social norms as external to and distinct from legal rules, it is possible to argue that social norms—such as stewardship obligations in relation to water use—should replace legal entitlements to water. If we consider social norms such as stewardship practices as internal to legal rules, such practices may merely qualify legal rights to water. Raising this question, i.e., whether stewardship practices should replace or merely qualify legal rights to natural resources matters, also because the academic literature is currently undecided on this issue. While some authors consider stewardship as an alternative to rights to water,69 others, such as the account discussed in Section 3, perceive stewardship practices as merely transforming property rights in natural resources.

To conclude, an eco-socio-legal perspective seeks to go beyond a circular relationship between social and legal norms by considering interactions between law and society as also shaped by the geographical places in which these occur. Social norms thus may not shape directly legal rules. Instead the characteristics of the geographical places in which both social norms and legal rules evolve also shape how social norms and legal rules may intersect. For instance, the precise content of legal rights of access to and alienation of elements of a natural resource may be the result of a system of social stratification. This system of social stratification, in turn, may have been further shaped by the terrain in which a particular water supply infrastructure has been developed. The characteristics of the geographical place may also have had a bearing on how courts define riparian rights, which in turn are linked to a system of social stratification. Moreover, an eco-socio-legal perspective seeks to avoid circularity in its analysis of intersections between social norms, relationships, and legal rules by putting particular emphasis on how social norms and relationships inform the operation of legal rules. Since an eco-socio-legal perspective starts from a social constructivist perspective that understands law as being shaped by social norms and relationships,70 it backgrounds the question how law, in turn, shapes social norms and relationships. From this follows a further distinct feature of an eco-socio-legal perspective. This is a focus on how social norms and relationships at a micro- rather than macro-level inform property rights in natural resources, a point further discussed in the following section. This focus on micro-level social norms and relationships is intended to shed light on the meaning-making practices of legal actors that constitute property rights in natural resources “in action.”

2.3. A Focus on Micro-Level Social Norms and Relationships as Shaping Property Rights in Natural Resources

An eco-socio-legal perspective focuses on social norms and relationships at a micro-level also because there has been more emphasis in the literature on discussing property rights in natural resources with reference to structural economic and political factors on a macro-level, rather than the meaning-making practices of rights holders themselves. For instance, patterns of economic development have been referred to as explanations for shifts in water use from rural and agricultural to urban as well as industrial uses.71

So what does a focus on social norms and relationships at a micro-level entail? First, social norms at a micro-level have been defined as the “rules of the game” that constrain individual users’ self-interests in relation to natural resources.72 An example of this is the social norm that shortages in water are shared proportionately by those who hold entitlements to water allocations.73 The literature also points to variation in how formal or informal such social norms can be. For instance, the “rules of the game” may be laid down in formal agreements, such as Indigenous Land Use Agreements, which are voluntarily concluded between native title holders and other stakeholders.74 The anthropological literature in particular focuses on social rules, such as customary law arising from religious or indigenous communities’ law.75 In contrast to this, an eco-socio-legal perspective defines social norms and associated social relationships more broadly to include a whole range of social practices, not just rule-based ones, that can inform the nature, scope, and content of property rights in natural resources. These can be tacit agreements and taken for granted assumptions, e.g., about the value and actual use of water.

Second, social norms have been defined in the literature on property rights in natural resources as overarching values that shape how such rights are implemented. Examples of these are “social justice,” “social utility,” “proper social order,” “customs, taboos and kinship,”76 “sustainability,”77 “fair distribution of wealth,” “efficiency,” and “protectionism,”78 as well as rules about theft that indicate what the limits of legitimate ownership of natural resources are.79 The term “social justice” captures a fair distribution of access to and rewards from the use of the natural resource among the members of a society.80 For instance, competition law may prohibit the dominance of a few large abstractors in a market in tradeable shares in water.81 In contrast to this, protectionism involves limiting the tradeability of the natural resource in order to protect local economies that are dependent on affordable access to it.82 What this account of the different meanings of social norms shows is that consideration of law and society interactions in the context of property rights in natural resources has often taken on a normative tone. In particular some contributions to the literature have been interested in exploring how property can be socialized in order to reflect public interest objectives, such as economic development, environmental protection, or gender equality. In contrast to this, an eco-socio-legal perspective is, in the first instance, focused on an analysis of intersections between law and society, without presuming a particular normative perspective.

2.4. An Eco-Socio-Legal Perspective Analyzes Law and Society Relationships Also in Order to Critique a Range of Normative Perspectives

A normative gloss on intersections between social norms and legal rules is particularly prevalent in the literature on “progressive property.”83 Progressive property rights are defined as informed by altruistic attitudes. This entails using private property for the benefit of a whole community or extending it to a broad range of citizens.84 These “socialized” versions of private property are contrasted with an understanding of property that focuses on its economic objectives, such as providing information about the state of rights and obligations in relation to a range of “things” including natural resources. Moreover, from an economic perspective, property enables rights holders to maximize the value of land particularly in the long term. It also valorizes the allocation of scarce natural resources to their highest value, in order to increase efficiency in their allocation, thereby neglecting distributional consequences of such allocations.85

According to some contributions to the progressive property literature, unfairness resulting from property transactions can then be attenuated through social norms transforming property rights. Most fundamentally this can involve social norms challenging commodification by transforming accepted beliefs about what is appropriate to be turned into a “thing” that can be owned.86 This can entail legalizing the unlawful acquisition of property by squatters in South Africa87 or significantly widening access to land, e.g., through the responsible access regime created by the Land Reform (Scotland) Act 2003.88

But according to an eco-socio-legal perspective, how social norms and relationships may inform property in natural resources is not a matter of abstract normative choices based on assumptions about what a “public interest” is.89 Instead an eco-socio-legal perspective advocates taking into account how empirically a particular range of social norms and their associated relationships actually inform a specific property regime. This enables seeing new interconnections between social norms and public interests, for example, by questioning the equation of private with self-interests, and public with altruistic interests. For instance, those who hold private property rights in a natural resource may use and manage it in the interests of a wider community, including fauna and flora. In contrast, management of a natural resource in “the public interest” may champion individualistic human-centered interests. Hence, private interests in maintaining a natural resource—also in order to pass it on to future generations—may not be at odds with but actually chime with a public interest in nature conservation, sometimes defined in anthropocentric terms. This partly echoes Hardin’s90 and Demsetz’s “Tragedy of the Commons” idea, which considers private property rights in natural resources—rather than common-access regimes—as crucial for the sustainable use of natural resources.91

There is also support for questioning a priori assumptions about private and public interests and their relationship to private property rights in natural resources in the economic sociology literature. This literature further buttresses the point that it is important to understand the meaning-making activities of economic actors in order to provide insightful accounts of their interests. Economic sociology literature suggests that interests and motivations of economic actors can be complex and context dependent. One stark example from this literature refers to a US pharmacist who diluted the concentration of cancer drugs he was dispensing. His motivation was to pass on the profits he had gained from the extra sales to his church in order to finance the construction of a new building. From the perspective of the pharmacist his actions were altruistic, considering the needs of the spiritual community he belonged to. From the perspective of the cancer patients his actions were anything but altruistic.92 The next section further illustrates the idea that an eco-socio-legal perspective focuses on meaning-making practices in order to understand how social norms and their associated relationships inform property rights in natural resources.

2.5. Property Rights to Natural Resources Are Shaped by Meaning-making Practices

Institutional approaches emphasize the importance of courts and regulatory agencies for recognizing and enforcing property rights in natural resources. An eco-socio-legal perspective suggests that also the meaning that those who hold property rights or third parties attribute to these rights shapes property in natural resources. Those meanings may not be exactly the same as those that institutional actors, such as courts and regulatory agencies, attribute to property in natural resources. Perceptions of rights by, e.g., rights holders matter because they can provide a critical gloss on abstract formal classifications of distinct property rights in natural resources discussed in the academic literature.

2.5.1. Individual Private Property Rights in Natural Resources

Individual private property is assumed to be the strongest version of asserting property interests in natural resources because it protects “individual interests against collective power.”93 In their strongest form, individual private property interests are clearly defined, entail security of tenure, involve possession rather than merely use rights,94 and are transferable.95 But at times individual private property rights may not be defined that clearly, for instance when both indigenous and state legal definitions of a right to water are applicable. The core features of individual private property rights in natural resources are often defined in the literature through a contrast with common property.

2.5.2. Common Property

Common property is also referred to as collective or group property96 or communal rights.97 It has a long history which started in prehistoric times and extends to the present. In the case of common property, a group of equal co-owners can exclude those who do not hold property rights to the resource.98 Hence the title to the property is often indivisible.99 In some common-property regimes individuals can sell or acquire a share in the common property, but this may require the consent of the other property owners.100 One example of collective property is native title rights to natural resources.101 A right of common use of a natural resource by a range of people is referred to as “common lands.” But where a specific use right for a particular resource is held by several owners, a tenancy in common exists.102 In the context of economic rights to water, common property is often administered by water users’ associations, such as farmer abstractor groups, which act on behalf of their members. Sometimes the association itself holds rights to the natural resource.103 Common property rights are usually distinguished in the literature from state or public property regimes.

2.5.3. State or Public Property Regimes

In the case of state or public property the national or regional state or a public agency owns the natural resource with an expectation that the property rights are exercised for the benefit of all citizens, or a subsection of citizens of the state. Public property in water often extends to water in reservoirs, irrigation, as well as drinking water systems.104 But public property is often limited by the rights of other rights holders, such as those who can withdraw water in accordance with abstraction licenses, e.g., farmers, industrial abstractors, or indigenous communities.105

A closer look at these abstract typologies of seemingly different property rights in natural resources suggests, however, that these rights are not always very distinct. In the United States, for instance, a public trust doctrine reduces distinction between state, individual, or group ownership of natural resources. The doctrine can apply to any of these property rights in natural resources and requires that the resource is held in trust for the benefit of a wider community or, for instance in accordance with the communal traditions of Indian tribes in northern America.106 According to the public trust doctrine, restrictions on the use of the land in a wider public interest may not be compensated.107 A widely defined public trust doctrine applied to individual private property rights may even ensure more effectively the protection of wider public interests in natural resources than a state regulatory agency, which may be at risk of capture by private interests.108

Moreover, differences between various types of property rights in natural resources as suggested by abstract typologies presented in the literature may be overstated. Often the same range of legal actors is involved in the administration of these various property rights, though how they interact may vary according to the particular property right at stake. These key legal actors are regulatory agencies, central government administrators, local government officials, private individuals, as well as companies and groups of local resource users.109

In addition, lack of capacity to enforce state property rights for wide-ranging and potentially unbounded natural resources, such as forests, marine fisheries, or open grass lands, can turn these into de facto common access regimes.110 At other times hybrid co-management property regimes have evolved. Here, the state may retain rights, but users are also granted rights, e.g., to use the resource and obtain proceeds from it. Such regimes may develop in particular when financial resources are scarce, i.e., when government offices are dependent on revenue generated from the natural resource by local users.111

What emerges from this critique of an abstract and formal typology of different property rights is that, in practice, property in natural resources often consists of a web of overlapping rather than distinct rights. It is therefore important to analyze how rights holders who use natural resources with reference to these overlapping webs of rights understand the scope and nature of their rights, a point further discussed in Section 3.

3. What Do Economic Rights to Water Mean?—A Case Study of English Farmers’ Views

This section further fleshes out a distinct feature of an eco-socio-legal perspective, which is to understand empirically what meaning those who hold rights to water attribute to them.112 Three main sources of data informed the research that focused on English farmers’ views about their economic rights to water. First, the analysis included public policy documents generated by the UK Department for Environment, Food and Rural Affairs (DEFRA), the Environment Agency (EA), the Water Services Regulation Authority (Ofwat), the nature conservation body Natural England, the Country and Land Business Association (CLA), and the National Farmers Union, as well as supermarkets’ and other trade organizations’ farming standards.113 The second source of data was relevant provisions of the Water Resources Act 1991 (WRA), the Water Industry Act 1991 (WIA), the Water Act 2003, and the then draft Water Bill 2013–2014, as well as nature conservation legislation. The third and key data source was qualitative empirical data obtained through twelve semistructured interviews with key stakeholders in the northeast, a water-rich area of the United Kingdom, and the southeast, a water-scarce area. Interviewees included farmers, their representatives, and staff working for regulatory agencies, such as the Environment Agency and Natural England, as well as members of civil society organizations, such as River Trusts.

The research suggested that three interpretative frames shape what an economic right to water actually means to farmers. First, the institutional-regulatory framework which governs the granting of abstraction licenses in accordance with English administrative law, was a significant frame. It qualified some farmers’ view that they have unrestricted private property entitlements to water protected through Art. 1 of the First Protocol to the European Convention on Human Rights (ECHR). Second and most important, the commercial relationships in which farmers exercise their economic rights to water have a bearing on what a right to water means to them. Commercial relationships in particular steered toward stewardship practices in relation to water use. Farmers were incentivized to adopt stewardship practices that qualified unrestricted rights to water through “green” production standards imposed by supermarket buyers of farmers’ produce. This further illustrates the significance of social norms—that also reflect here consumers’ preferences for sustainably farmed agricultural produce—as informing how property rights are understood. One of the most interesting findings of this case study research is that farmers’ commercial relationships were more significant than the institutional-regulatory framework in shaping farmers’ perception that their economic rights to water were qualified by stewardship obligations.

The third interpretative frame that shaped farmers’ conceptions of an economic right to water involved reference to the geographical places in which economic rights to water are exercised. Farmers referred in particular to the farm and characteristics of the catchment from which they were abstracting water. In places where it was possible to share water resources, an economic right to water was no longer understood as simply an individual private property right but as an entitlement to a collective resource. For instance, where there were several adjoining farms farmers conceived of the farm as linked to other parcels of land. This was associated with understanding access to water in more collective terms. This idea was buttressed through farmers’ social practice of renting a neighboring farmer’s land for the planting of crops that needed additional access to water allocations associated with the neighbor’s land. Similarly, in the water-scarce southeast of the United Kingdom the existence of interconnected channels in which water flows in the Fens was associated by farmers with an understanding of water as a collective, shared resource. This qualified an understanding of economic rights to water in terms of individual private property entitlements.

This brief account of how farmers constructed in practice what an economic right to water actually meant to them chimes with the critique of abstract typologies of different property rights discussed in Section 2.5. Depending on the particular characteristics of the place, law, and society triad in a specific case, there can be overlap between what are often presented in the literature as distinct property rights in natural resources. In the case of English farmers the meaning of an economic right to water was informed by features of individual private and collective property qualified by stewardship practices. But how generalizable are these findings?

While water is of central importance to farming, and secure water rights are therefore particularly valued by this abstractor group, some aspects of farmers’ views on economic rights to water are also shared by governments and water companies. The three interpretative frames identified through the particular case study of English farmers’ views may thus be of wider salience. For instance, DEFRA also emphasizes the significance of wider commercial relationships in which the use of water by a range of abstractors, including farmers, is embedded. It highlights that farmers provide ecosystem services from which water companies and consumers of drinking water benefit.114 These ecosystem services consist of maintaining land and its natural vegetation, which supports the hydrological cycle and also contributes to carbon sequestration and climate regulation. An aspect of this commercial context is that farmers currently provide such ecosystem services mainly for free. Hence, the social norms that may be invoked here relate to fairness, and these, in turn, raise questions about the legitimacy of restricting farmers’ rights to water in comparison to other abstractors.

But there are also clear limits to generalizing from a case study involving English farmers to farmers in other jurisdictions. In the United Kingdom and other European countries like France, farmers are well represented through powerful lobbying organizations. They therefore influence to some extent decisions about the allocation of water, which can also affect the scope of rights afforded to them.115 But this is not necessarily the case in developing countries.116 Moreover, what farmers understand as their economic rights to water may also be influenced by how much their claims to water may be questioned by other abstractors and by the history of regulation of their water use. In the United Kingdom farmers abstract only 1 percent of the total water taken out of the natural environment117 and thus abstract significantly less than water companies, but hold the largest number of abstraction licenses. They have therefore significant experience of being subject to stewardship obligations which qualify their economic rights to water. In other countries, such as the United States, Brazil, and South Africa, farmers extract a much larger proportion of water from the natural environment118 and may thus incur greater qualifications of their economic rights to water also in light of greater competing pressures on the use of water resources. Hence, an eco-socio-legal approach could be further developed through empirical case studies that analyze how relationships of power between different groups of abstractors contribute to what an economic right to water actually means for different abstractors.

4. Conclusion

This article has outlined two inter-related key dimensions of an eco-socio-legal perspective on property rights in natural resources. The first dimension highlights that law and society interactions that inform property rights in natural resources are mediated by the characteristics of natural places in which these rights are exercised. Hence, abstract typologies that perceive individual private, collective, and state or public property as very distinct potentially reify property rights in natural resources and are thus limited in capturing what are in practice often overlapping rights.

The second key dimension of an eco-socio-legal perspective is to develop empirical accounts of how those who hold rights and third parties understand their nature and scope. This perspective foregrounds an analysis of the meaning-making practices of rights holders and third parties. It backgrounds institutional structures for understanding property rights in natural resources. It thereby directs attention to how relationships of power, including economic relationships, “on the ground” inform how rights and duties in relation to natural resources are understood. Understanding relationships of power can have normative consequences. It matters for answering questions such as whether collective property regimes should be adopted in a particular society. Collective action—a prerequisite for collective property—may be more easily achieved in societies with limited social stratification. Collective property, in turn, may promote the successful use and conservation of commons resources.119

There are various ways in which the eco-socio-legal perspective outlined here can be further developed. While the case study discussed in this article focused on how a particular group—farmers who hold rights to water—understand these, the research could be extended to include other abstractors and third parties who may not hold property rights to water, such as citizens using water resources, unlicensed potential abstractors and environmental nongovernmental organization representatives of the unowned environment. Moreover, this article has focused in the case study section on economic rights to water, and the question arises whether the three interpretive frames identified as shaping an understanding of economic rights to water are also applicable to rights in other natural resources. The unbounded nature of water in comparison to, e.g., forests may make it more likely that rights holders see their rights as more akin to collective property.

Suggestions for Further Reading

1. Helena R. Howe, “Making Wild Law Work—The Role of ‘Connection with Nature’ and Education in Developing an Ecocentric Property Law” (2017) Journal of Environmental Law 29 (1), 19–45.Find this resource:

2. Ben France-Hudson, “Surprisingly Social: Private Property and Environmental Management” (2017) Journal of Environmental Law 29 (1), 101–127.Find this resource:

3. Emily Barritt, “Conceptualizing Stewardship in Environmental Law” (2014) Journal of Environmental Law 26 (1), 1–23.Find this resource:

4. Sarah Blandy and Susan Bright (eds.), Researching Property Law (Palgrave, 2015).Find this resource:

5. Christopher Pierson, “Just Property, Vol. 1: A History in the Latin West: Wealth, Virtue, and the Law” (Oxford University Press, 2013).Find this resource:

6. Christopher Pierson, “Just Property, Vol. 2: Enlightenment, Revolution and History” (Oxford University Press, 2016).Find this resource:


(1) Sharun Mukand and Dani Rodrik, “The Political Economy of Liberal Democracy” (2015), at (accessed July 6, 2017).

(2) Allen E. Buchanan, “Assessing the Communitarian Critique of Liberalism” (1989) 99 (4) Ethics, 855.

(3) Ruth S. Meinzen-Dick, Lynn R. Brown, Hilary Sims Feldstein, Agnes R. Quisumbing, “Gender, Property Rights, and Natural Resources” (1997) 25 (8) World Development, 1305.

(4) Daniel H. Cole, “Clearing the Air: Four Propositions about Property Rights and Environmental Protection” (1999) 10 Duke Environmental Law and Policy Forum, 105.

(5) Richard Barnes, Property Rights and Natural Resources (Hart Publishing, 2009), 23.

(6) Ruth Meinzen-Dick and Rajendra Pradhan, “Analyzing Water Rights, Multiple Uses, and Intersectoral Water Transfers,” Chapter 11, in Dik Roth (ed.), Liquid Relations: Contested Water Rights and Legal Complexity (Rutgers University Press, 2005), 238.

(7) Donna C. Brennan and Michelle Scoccimarro, “Issues in Defining Property Rights to Improve Australian Water Markets” (1999) 43 (1) The Australian Journal of Agricultural and Resource Economics, 76.

(10) John J. Pigram, “Property Rights and Water Markets in Australia: An Evolutionary Process Toward Institutional Reform” (1993) 29 (4) Water Resources Research, 1313, 1314.

(11) Ofwat and Environment Agency, “The Case for Change: Reforming Water Abstraction Management in England”, Report GEHO1111BVEQ-E-E, at (accessed July 6, 2017), 7, 27.

(12) Art. 3 (1) Directive (2000/60/EC) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L 327/1.

(13) Michael A. Heller, “The Boundaries of Private Property” (1999) 108 Yale Law Journal, 1167.

(14) James A. Swaney, “Common Property, Reciprocity, and Community” (1990) XXIV (2) Journal of Economic Issues, 452.

(15) Charles Reich, “The New Property” (1964) 73 Yale Law Journal, 733.

(16) Gregory S. Alexander, Eduardo M. Peñalver, Joseph William Singer, and Laura S. Underkuffler, “A Statement of Progressive Property” (2008–2009) 94 Cornell Law Review, 743–744.

(17) Randy Bregman and Dorothy C. Lawrence, “New Developments in Soviet Property Law” (1990) 28 Columbia Journal of Transnational Law, 189.

(18) Sarah Blandy, Susan Bright, and Sarah Nield, “Dynamics of Enduring Property Relationships in Land,” Working Paper, at (accessed July 6, 2017).

(19) Edella Schlager and Elinor Ostrom, “Property-Rights Regimes and Natural Resources: A Conceptual Analysis” (1992) 68 (3) Land Economics, 250.

(20) A right to exclusion can, e.g., take the form of restricting a fishery to men over a certain age who live in a particular community and who only use vessels of a certain size (Schlager and Ostrom, “Property-Rights Regimes and Natural Resources,” 251).

(29) Rutgerd Boelens, Margreet Zwarteveen, and Dik Roth, “Legal Complexity in the Analysis of Water Rights and Water Resources Management,” Chapter 1, in Dik Roth (ed.), Liquid Relations: Contested Water Rights and Legal Complexity (Rutgers University Press, 2005), 2.

(31) Bryan Bruns, “Routes to Water Rights,” Chapter 10, in Dik Roth (ed.), Liquid Relations: Contested Water Rights and Legal Complexity (Rutgers University Press, 2005), 228.

(33) François du Bois, “Water Rights and the Limits of Environmental Law” (1994) 6 (1) Journal of Environmental Law, 75.

(40) It therefore seeks to further specify statements in the existing literature that consider the “socio-,” the “legal,” and the “natural” as an “inseparable combination in practice” (Ben Boer, Philip Hirsch, Fleur Johns, Ben Saul, and Natalia Surrah, The Mekong: A Socio-Legal Approach to River Basin Development (Earthscan, 2016), ch. 8.

(42) William R. Attwater and James Markle, “Overview of California Water Rights and Water Quality Law” (1988) 19 Pacific Law Journal, 964, 968.

(43) Paul Morgan, “Towards a Developmental Theory of Place Attachment” (2010) 30 Journal of Environmental Psychology, 20. See also J.E. Malpas, Place and Experience: A Philosophical Topography (Cambridge University Press, 1999).

(44) Nicholas Blomley, “The Boundaries of Property” (2016) 50 (1) Law and Society Review, 224–255.

(45) Nicholas Blomley, “Disentangling Property, Performing Space”,” in Michael R. Glass and Reuben Rose-Redwood (eds.), Performativity, Politics and the Production of Social Space (Routledge, 2015), 169.

(46) Jay T. Johnson and Soren C. Larsen, “Introduction: A Deeper Sense of Place,” in Jay T. Johnson and Soren C. Larsen (eds.), Deeper Sense of Place (Oregon State University Press, 2013), 16.

(47) Anne Godlewska, “Awakening to Belonging,” in Jay T. Johnson and Soren C. Larsen (eds.), Deeper Sense of Place (Oregon State University Press, 2013), 218.

(49) Ruth Meinzen-Dick and Anna Knox, “Collective Action, Property Rights, and Devolution of Natural Resource Management: A Conceptual Framework,” Workshop Paper, draft 15/99, 53.

(51) Bhim Adhikari, “Property Rights and Natural Resources: Socio-Economic Heterogeneity and Distributional Implications of Common Property Resource Management” (2003), Working Paper No. 1-03, Sandee, South Asian Network for Development and Environmental Economics, 22, 23.

(54) Christopher Dyer, “Conflict in the Landscape, the Enclosure Movement in England, 1220–1349” (2006) 28 (1) Landscape History, 21.

(55) S.V. Ciriacy-Wantrup and Richard C. Bishop, “‘Common Property’ as a Concept in Natural Resources Policy” 15 (1975) Natural Resources Journal, 720.

(58) Becky Mansfield, “Neoliberalism in the Oceans: ‘Rationalization’, Property Rights, and the Commons Question” (2004) 35 Geoforum, 313–326, 313, 317.

(69) Barnes, Property Rights and Natural Resources, 19. Jay T. Johnson discusses Maori natural resource stewardship practices in relation to the giant surf clam. These are informed by customary law and in breach of New Zealand state conservation laws (Jay T. Johnson, “Kaitiakitanga, Telling the Stories of Environmental Guardianship,” in Jay T. Johnson and Soren C. Larsen (eds.), Deeper Sense of Place (Oregon State University Press, 2013), 130, 134.

(70) Peter L. Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Anchor Books, 1966).

(74) Jon Altman, “Indigenous Interests and Water Property Rights” (2004) 23 (3) Dialogue (Academy of the Social Sciences), 29, 31.

(75) Ruth Meinzen-Dick and Rajendra Pradhan “Analyzing Water Rights, Multiple Uses, and Intersectoral Water Transfers,” Chapter 11, in Dik Roth (ed.), Liquid Relations: Contested Water Rights and Legal Complexity (Rutgers University Press, 2005), 238.

(83) See, e.g. John A. Lovett, “Progressive Property in Action: The Land Reform (Scotland) Act 2003” (2011) 89 Nebraska Law Review, 739.

(85) Ezra Rosser, “The Ambition and Transformative Potential of Progressive Property” (2013) 101 (1) California Law Review, 107–171, 118–119.

(88) Lovett, “Progressive Property in Action,” 741. The Act provides a right to access most land in Scotland either publicly or privately owned for recreational and educational purposes, or merely for passing through, as long as those who access the land act responsibly.

(89) A further example of uncovering the social norms and relationships that inform private property rights is a narrative approach to property in natural resources. It understands both classical social theoretical perspectives on property and accounts of what property means generated by actual rights holders as narratives about social relationships between citizens and their interaction with natural resources (Kevin Grecksch and Jessica Holzhausen “Property Rights Revisited—Are Narratives the Way Forward?”(2017) 9 (2) International Journal of Law in the Built Environment, 94–107).

(90) Garrett Hardin, “The Tragedy of the Commons,” Science (1968) 162 (3859), 1248.

(91) Harold Demsetz, “Toward a Theory of Property Rights II: The Competition Between Private and Collective Ownership” (2002) 31 (2) Journal of Legal Studies, 656.

(92) Fred Block, in Greta Krippner, Mark Granovetter, Fred Block, Nicole Biggart, Tom Beamish, Youtien Hsing, Gillian Hart, Giovanni Arrighi, Margie Mendell, John Hall, Michael Burawoy, Steve Vogel, and Sean O’Riain, “Polanyi Symposium: A Conversation on Embeddedness” (2004) 2 Socio-Economic Review, 118.

(96) Elinor Ostrom, Joanna Burger, Christopher B. Field, Richard B. Norgaard, and David Policansky, “Revisiting the Commons: Local Lessons, Global Challenges” (1999) 284 Science, 278–282, 278. There is no agreed definition of common property in the literature. Some use the term “common property resource” also to refer to commons which are owned by the government (see, e.g., Schlager and Ostrom, “Property-Rights Regimes and Natural Resources,” 249), while others refer to commons owned by the government as “state or public property.”

(112) This section builds on previous work on farmers’ understandings of their economic rights to water: Bettina Lange and Mark Shepheard, “Changing Conceptions of Rights to Water—An Eco-Socio-Legal Perspective” (2014) 26 Journal of Environmental Law, 215–242.

(113) In total, twenty-seven documents.

(114) Helen Dunn, ‘DEFRA Evidence and Analysis Series, Paper 4, Payments for Ecosystem Services (2011),, 20.(accessed July 6, 2017).

(118) In the United States, irrigated agriculture abstracts on average 40 percent of fresh water (David Pimentel, Bonnie Berger, David Filiberto, Michelle Newton, Benjamin Wolfe, Elizabeth Karabinakis, Steven Clark, Elaine Poon, Elizabeth Abbett, and Sudha Nandagopal, “Water Resources: Agricultural and Environmental Issues” (2004) 54 (10) BioScience, 911). In South Africa, farmers abstract 63 percent of the country’s available surface water for irrigation (World Wildlife Fund, Agriculture: Facts & Trends South Africa), at 11, (accessed July 6, 2017), 11. In Brazil, 54 percent of water is abstracted for agricultural irrigation and 6 percent for livestock watering (Aquastat, FAO’s Information System on Water and Agriculture, (accessed July 6, 2017)).