Page Under Construction
The text below is adapted from a proposal put forward during the ConstitutionUK project run by the LSE in 2015 to crowdsource a new constitution for the UK, and will be substantially rewritten before this website goes live.
This page concentrates on the position in England in order to keep the analysis simple, but similar dynamics underlie the law in Scotland, wales and Northern Ireland.
Historically, all land titles in England have their roots in the estates William I granted to his tenants-in-chief, and all freeholds in England derive from those rights.
Those rights were not so much rights of occupancy or use of the land itself, rather they were rights of dominion over the people living on it.
Rights of occupancy and rights of dominion both contain a right to exclude people from the land in question, but those rights of exclusion are fundamentally different in nature. Rights of occupancy contain a right of exclusion in order to protect the holder’s enjoyment of the land. Rights of dominion, on the other hand, are essentially administrative, and the right to exclude people derives primarily from a need to protect land from over-use or misuse.
The Enclosure Acts had the effect of converting rights of dominion into rights of occupancy. Large landowners were effectively relieved of a set of responsibilities which had been an integral part of their landholdings, and the people living on the land were stripped of their rights and evicted. Those Acts were passed by Parliaments which represented only a small proportion of the population and they would be inconceivable in a properly democratic society. The damage they did, however, has still not been undone.
It is sometimes suggested that reversing those Acts is impossible because it would involve trying to trace the descendants of all the people who were evicted over those two or three centuries. From the perspective presented here, however, that would be unnecessary because the rights that were lost were not intrinsically heritable.
We propose that rights of dominion over land should be regarded as a form of trusteeship, where the trustees hold the land for the benefit of all those who might have a right to live or work on it. The Enclosures Acts would be deemed to have improperly converted the landowners, generally, from trustees to beneficiaries, and the remedy would be to convert their successors in title, generally, back to trustees (‘generally’ because for the most part it would be enough to base it on size of land holding – it would not be necessary in most cases to trace the precise history of individual plots of land).
The purpose of this reform is to provide a basis on which a landless person could claim land for subsistence but we expect that ‘hostile’ claims would only happen during the transition period – in the longer term we would expect market mechanisms to be adequate. we won’t go into further detail here, except to say that we envisage different classes of trusteeship. Most farmland, for example, could be deemed to be held through an implicit contract with urban dwellers while other land might be deemed to be ‘abandoned’ and therefore easier to claim (‘abandoned’ land would be in the largest estates to ensure that only the largest landowners might be compelled to surrender land).
Trustees would continue to have the enjoyment of land which had no identified beneficiaries and would retain most of the rights over it that they have today. The amount of land which would in fact be transferred through hostile claims depends on how much suppressed demand there is for a subsistence lifestyle. In other words, it will be a function of how seriously awry the present system is.