Introduction
Deepa Balsavar's story, Who Owns the Water? (2018), provides a simple yet profound narrative of how a resource comes into being through a combination of nature, animal action, and human effort, leading to conflicting claims of ownership. This scenario highlights a fundamental legal and philosophical question: how does property come into existence, and what justifies an individual's claim to own it? This essay will examine several competing theories that seek to answer this question. It will explore justifications based on first possession, labour, and legal recognition. This essay will argue that while traditional theories offer partial justifications for ownership, they are insufficient on their own, especially when applied to essential natural resources like water. Ultimately, property rights are a legal construction, and for resources vital to the community, a balance must be struck between private claims, common interests, and State regulation to achieve a form of distributive justice.
The Theory of First Possession
One of the oldest justifications for property is the principle of first possession, often summarised as ‘first in time, first in right’. This theory suggests that the first person to discover and take control of a previously unowned thing becomes its owner. The rationale is that it provides a clear and simple rule for allocating resources, thereby preventing disputes (Rose, 1985). In Balsavar's story, identifying the ‘first possessor’ is complicated. Was it the bird that dropped the seed, the boar that dug the hollow, or the farmer who improved the pond?
The law requires more than just discovery; it demands an act of clear possession. The classic American case of Pierson v Post (1805) 3 Caines 175 illustrates this. Post was hunting a fox, but Pierson intervened, killing and taking the fox. The court held that mere pursuit was not enough; ownership required capture. This 'clear act' rule is designed to provide certainty and public notice of a claim. Applying this to the story, the farmer’s act of widening and deepening the pond could be seen as the clearest act of possession, going beyond the incidental actions of the animals. However, the first possession theory has limitations. It can encourage a race to acquire resources, potentially leading to their inefficient use or depletion, and it does not necessarily reward the most deserving or productive user. It simply rewards the one who gets there first, which may not be a just basis for ownership.
John Locke’s Labour Theory
A more complex justification is John Locke’s labour theory. In his Second Treatise of Government, Locke argued that because every person owns their own body, they also own the labour of their body. When an individual mixes their labour with a resource from the ‘commons’ (things owned by no one but available to all), that resource becomes their property (Locke, 1689). This theory provides a moral justification for ownership, as it is rooted in individual effort and desert.
The farmer in the story has the strongest claim under this theory. He "toiled from dawn to dusk… he widened and deepened the pond" (Balsavar, 2018). By mixing his labour with the pre-existing puddle, he transformed it into a valuable and sustainable resource. However, Locke’s theory is subject to two important provisos: first, that there must be "enough, and as good, left in common for others," and second, that one should only appropriate what one can use before it spoils. In a world of finite resources, the ‘enough and as good’ proviso is difficult to satisfy. By claiming the pond, has the farmer deprived others who might have come to rely on it? Furthermore, as the philosopher Robert Nozick (1974) questioned, if one pours a can of tomato juice into the ocean, does one then own the ocean? The theory does not clearly explain why mixing labour grants ownership of the whole object, rather than just the value added.
Property as Legal Recognition
While philosophical theories provide justifications, in practice, property is a right recognised and enforced by law. A claim to property is only meaningful if a legal system will uphold it. This is a positivist view of property: it exists not as a natural right, but as a bundle of rights created by law (Gray and Gray, 2011). In English law, possession is a key source of title. A person in possession of land, even a squatter, has a title that is good against the whole world except someone with a better claim, as established in Asher v Whitlock (1865) LR 1 QB 1. This shows that the law protects possession itself as a form of ownership.
In Balsavar’s story, this aspect is represented by the arrival of the King’s man, who declares, "Everything in the kingdom belongs to the King! So the pond belongs to the King!" (Balsavar, 2018). This demonstrates the power of the sovereign to create and allocate property rights, overriding prior claims based on possession or labour. The farmer may feel he owns the pond, but his claim is insecure without legal recognition. If the state declares the resource belongs to the Crown, or subjects it to regulation, then that becomes the legal reality. This highlights that property rights are not absolute but are defined and limited by law.
Water: Private, Common, or State-Regulated?
The conflict over the pond illustrates the tension between different models of ownership for natural resources. The farmer represents the claim of private ownership, justified by his labour and improvement. Private ownership can encourage investment and efficient management, as the owner has a direct incentive to maintain the resource. However, it can also lead to the exclusion of others from an essential resource, raising issues of distributive justice, particularly when the poor cannot afford access.
The villagers who later use the pond represent the idea of common ownership. The resource is not owned by a single individual but is shared by a community. Historically, many resources like pastures and forests were managed as commons. However, this model faces the risk of the "Tragedy of the Commons," a concept popularised by Garrett Hardin (1968). Hardin argued that in a shared commons, each individual has an incentive to take as much as they can for themselves, leading to the eventual destruction of the resource. While this view has been challenged by scholars who have shown that communities can successfully manage commons, it highlights a key risk of unregulated shared access.
The King’s claim represents State regulation or ownership. In modern England and Wales, water is a prime example of a resource that is not subject to simple private ownership. While a landowner may own the land on which a river flows, they do not own the water itself. The right to abstract (take) significant amounts of water is controlled by the state through a licensing system managed by the Environment Agency under the Water Resources Act 1991. This approach recognises water as a vital public resource whose use must be managed for the collective good, balancing the needs of agriculture, industry, and the environment. This reflects a societal decision that some resources are too important to be left to the outcomes of first possession or private accumulation, and that distributive justice requires state intervention to ensure fair allocation.
Conclusion
Deepa Balsavar’s story effectively demonstrates that claims to property are rarely straightforward. Theories based on first possession and labour provide powerful intuitive justifications for ownership, rewarding discovery and hard work. However, these theories struggle when faced with the complexities of shared resources, the prior claims of nature and community, and the realities of a world with finite limits. As the story shows, an act of individual creation does not exist in a vacuum; it builds on what came before and creates consequences for others.
Ultimately, property rights are not a natural fact but a conclusion determined by law. The law does not simply choose one theory over another; instead, it balances them. For essential resources like water, the modern legal approach in jurisdictions like England and Wales moves away from absolute private ownership towards a system of State regulation. This acknowledges that while individual effort should be recognised, it cannot override the fundamental interests of the community. The question "Who owns the water?" is therefore answered not by a single theory, but by a complex legal and social compromise that seeks to balance private incentives with the demands of the common good and distributive justice.
References
Asher v Whitlock (1865) LR 1 QB 1.
Balsavar, D. (2018) 'Who Owns the Water?' in Water Stories From Around the World. Green Schools Ireland. Available at: https://greenschoolsireland.org/wp-content/uploads/2024/01/water-stories-from-around-the-world_compress.pdf (Accessed: 15 May 2024).
Gray, K. and Gray, S.F. (2011) Land Law. 7th edn. Oxford: Oxford University Press.
Hardin, G. (1968) 'The Tragedy of the Commons', Science, 162(3859), pp. 1243-1248.
Locke, J. (1689) Second Treatise of Government. (Modern edition, e.g., ed. C. B. Macpherson, 1980, Hackett Publishing).
Nozick, R. (1974) Anarchy, State, and Utopia. New York: Basic Books.
Pierson v Post (1805) 3 Caines 175 (Supreme Court of New York).
Rose, C.M. (1985) 'Possession as the Origin of Property', The University of Chicago Law Review, 52(1), pp. 73-88.
Water Resources Act 1991, c. 57.
