Theory and Practice in Australia
Edited by Jeff Bennett
Chapter 3: The Historical Variation in Water Rights
Richard A. Epstein THE THEORETICAL AND CUSTOMARY FOUNDATIONS OF WATER RIGHTS At the outset let me admit that I do not know anything about the peculiar rules of any regimes in water rights within 5000 miles of Australia. The systems that I understand are the American markets and the English markets, especially with regard to the influences that the latter have had in shaping the operation of the former. What I propose to do here therefore is to offer a complementary approach to the one provided by Freebairn in Chapter 2 of this book. I hope to explain how it is possible to work through all of the problems he identified, not so much via the modern system designs for the administrative state, but looking at the institutional origins and evolution of water law through three stages: at common law, through legislation, and then ultimately through constitutional challenge, which counts as the hallmark of the American system. Water rights, precisely because they are so difficult to calibrate and so difficult to quantify, have proved to be the source of immense complexity not only at the theoretical level, but also in the fits and starts of their historical evolution. My task is to give some hints about its winding course of development. In searching for a convenient starting place, I can think of no better place to look than one of my favourite philosophers, John Locke, who for all his brilliance made a profound, and hence instructive, mistake in the analysis...
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