Property, Proprietorship and Politics: Law and the Structure of Strategic Opportunities in the California Water Industry

Abstract

"In any going society, the patterns of economic behavior are maintained by virtue of certain rule of conduct or law which formulate the range of strategic opportunities that are available to those who function within that society. Law places parameters upon conduct by indicating the boundaries of lawful and unlawful behavior, provides a basic structure of incentives for ordering the behavior of all persons in a society, and affords certain facilities for the pursuit of opportunities. Such legal concepts as 'rights' in relations to 'goods' and 'remedies' in relation to 'injuries' or 'wrongs' clearly reflect a structure of incentives with reference to an implicit moral order. The existence of arrangement for the negotiation and adjudication of interest, in relation to such concepts, constitute the institutional facilities that shape the strategic opportunities available in any society.

"If law is to be effective, it must be enforceable. An unenforceable rule enunciating a 'Thou shall not' proposition is no more than a pious platitude. On the other hand, the imposition of unarticulated rile of conduct without recourse to the formal rules of law may be an exercise of irresponsible power, tyranny, or brute force. A rule of law exists only when enforceable rules of conduct are made explicit and when the behavior of all participants in a social structure can be held accountable in reference to the explicit standards of the law."