Surfing Property Rights

Most people, when they think of surfing, picture fearless athletes charging down moving mountains of water. Non-surfers who know the sport only through movies and videos have little else to go on. But even surfers dwell on those sorts of money shots, fantasizing about the last great ride or the next big swell. I admit to the same daydreams. Surfing has hardly washed the law geek out of me, though. When I think of surfing, I also picture property rights in action.

What has surfing got to do with property rights? A lot. Although few of them admit or even realize it, surfers obsess about defining, getting, defending, and enjoying—especially enjoying!--property rights in waves. Specifically, surfers deal in rights to the area on a wave face capable of providing an enjoyable ride.

Rideable wave space, like property generally, proves all-too-rare. The raw inputs for surfable waves—a fair sized swell arriving at a surf break under relatively smooth conditions—don’t always obtain. And when nature finally does supply those resources, a crowd of surfers usually shows up to demand them. Since one wave face can generally support only one ride at a time, scarcity arises.

Bloody fights would probably arise, too, if surf ethics didn’t embody a profound respect for property rights. With rideable waves as with valuable goods generally, property rights help to coordinate social behavior, preventing conflict and waste. When a sweet set rolls in, everybody in the line-up gets a fair shot at catching a wave and, if successful, enjoys a solo trip to surf nirvana. For a summary, see this brief description of customary surfing rules.

How do the rules of surfing embody a respect for property rights? First and most importantly, they uphold the right to homestead wave faces. Sets roll in unowned. As this helpfully illustrated guide explains, the first surfer to take off closest to the breaking face of a wave enjoys the sole right to ride that wave face. Luck plays a role in finding that magic take-off point, but the ethics of surfing primarily award waves on the basis of wave knowledge, line-up strategy, and gutsy paddling.

How do surfers enforce their wave rights? For the most part, they rely on the gentle arts of social suasion. Surfers bobbing in the line-up make up a community of sorts, one often strengthened by the presence of locals who know and look out for each other. Getting the stink-eye for dropping in on somebody else’s wave stings badly enough. Sanctions against repeat offenders may escalate to sharp words or, in extraordinary cases, to physical violence. When someone dropped in on me recently, for instance, I first forebore the offense, then took alarm at his unsafe proximity and verbally warned him to back-off. Finally, when that proved unavailing, I put my hand on the punk’s chest, shoved him off his board, and finished out my ride.

Like any property holder, a surfer can transfer, jointly own, or extinguish his rights to a wave. Someone who favors large, outside waves might ride one only partially in-shore before pulling out over the lip and paddling back out, allowing a surfer who favors inside breaks to then take possession. Longboarders on softly sloping waves often share the face, especially with their friends. Surfers at some breaks honor a convention whereby the party in rightful possession of a wave can offer to share it with all comers by calling out, “Party wave!” or “All aboard!” One bright and warm day last summer, at Old Man’s, I joined some five other surfers on such a wave. We flew in formation for a while, like surfing Blue Angels, and then one by one peeled over the outer lip of the breaking wave.

Surfers can, of course, waste the waves they homestead. I doubt anyone does so intentionally; what surfer would? Every surfer wipes out from time-to-time, however, often in circumstances where no surfer can reclaim the wave thus abandoned. Though other surfers may groan and shake their heads at the lost opportunity, they generally respect others’ rights to do with waves what they want. Someone who repeatedly wastes waves, however, may soon draw blame for (in effect) violating the second Lockean proviso that no one take more property from the commons than they can use without letting it go to waste. (See the Second Treatise, section 31.)

I should caution the reader that these observations rely on my own, sadly limited, fieldwork. The topic deserves a great deal more research. To that end, I eager solicit funding so that I can expand my study to include cross-cultural comparisons of the role that property rights play in surfing by, for instance, extensive experimental work in Hawaii, Costa Rica, Fiji, and Australia.