Right to Roam or Licence to Trespass?
Dr Jan Lester
The ‘right to roam’ open and
uncultivated countryside is a
campaign that is gaining pace
and which seems set to become
legislation sooner or later. This
would be immoral folly. I have
no objection to roaming, or
rambling, as such—as long as it
is not compulsory either to roam or to suffer roamers. As the
health fascists are slightly less influential than the egalitarians,
the arguments in favour of making it compulsory to suffer
roamers are making greater headway.
A brief outline of the case for a ‘right to roam’
Arguments for the ‘right to roam’ the countryside certainly
have a great deal of common sense on their side. They are
not thereby mistaken, of course, though that fact should alert
the sceptical intellect. Let me first outline the general case for
the ‘right to roam’, as put across by advocates in the mass
media, the Ramblers’ Association, politicians, and one
government department.
The great landowners of England did not create the land that
they own. These landowners are often personally rich and
merely being selfish killjoys by denying others access to such
natural beauty (‘Access to this part of our common heritage
is something which should be enjoyed by the many, not the
few’[1]). They have often inherited their land from ancestors
who themselves had a dubious claim to it. If they bought land
with this as a background, then that does not make much
difference. In any case, ‘individuals may hold the legal title,
but really the land is owned by us all.’[2]So we should be
able to roam all over any uncultivated parts, even away from
any traditional public footpaths. Ramblers should not have to
pay the landowners and neither should the landowners
normally be compensated for this in any way (such as by tax
relief). There should also be facilities for the disabled as far as
this is practical. The overall result will be that ‘access to the
open countryside will make a significant contribution to
improving public health and reducing social divisions …’ [3].
.
Why these arguments are wrong
In all this there is little substantial argument, mainly mere
presumption and whimsy. It is a combination of egalitarian
bigotry and irrelevant pro-health waffle. But, if only for the
enlightenment of the elected oligarchs who might impose this
‘right’ on us, let us now consider this ‘roamish’
propaganda in a little more detail.
There are oft-repeated arguments putting forward the health
virtues of rambling. But all these are irrelevant unless there is
no other way for people to be healthy and no way that land
access could be voluntary. These two possibilities are
patently not the case. So these health arguments can simply
be put aside immediately.
The great landowners of England often did and do, to varying
extents, create what is worth enjoying about the land that
they own. The land is not always in a natural state, but is
often well developed and maintained. Without the owners
there would often be no easy movement across the land or
views to see. That the landowners are often personally rich
cannot itself be a reason for imposing on them. Or if it is, then
there needs to be some independent argument concerning this
rather than just an appeal to envious Procrusteanism.
Ramblers should not expect their leisure activity to be
free
Neither is there any reason to think that the landowners
exclude people from their land for no good reason. There is
no way that having indefinite numbers of people walking
across their land cannot impose costs on the owners in terms
of physical damage and loss of privacy (owners regularly
attest to both). Perhaps it is not usually as bad from a privacy
viewpoint as having people walk around your back garden
without your permission, but the general principle is the same
and the financial losses through damage can certainly be far
higher.
Once this elementary point is grasped, one can see that if
people are not prepared to pay the landowners the price that
those owners would set for access to their land, then that is
good evidence that the would-be roamers are simply
imposing a cost in excess of any value that they will receive
from their roaming. The only way to be fairly sure we are
avoiding this is for the roamers freely to negotiate to buy or
rent any right of way or general access that they choose.
Instead, the roamers want to enjoy their pursuits at other
people’s imposed expense. This is likely to have a negative
sum result, in broadly utilitarian terms. Hence it is anti-social.
Roamers think they can get away with this because the
owners are generally an unpopular minority—the
‘rich’—whose interests it is politically safe to discount. Like
anti-fox hunting, the ‘right to roam’ has no serious case.
The anti-fox hunters do not offer a more humane alternative
to hunting the pest (shooting and poisoning it would clearly be
worse), and they usually turn a blind eye to the suffering the
fox itself inflicts on other small mammals. They also often
perceive members of the hunt as being from despised
‘privileged’ (really, advantaged) backgrounds. The ‘right
to roam’ similarly includes some combination of superficial
sentiment about ‘nature’ and malicious political classism
(which seems no more defensible than political racism or
sexism—as opposed to private discrimination or freedom of
association).
If an existing owner’s claims to the land are in any way
dubious, then that is a good reason to present a detailed case
on an individual basis and to challenge the property claims in
the courts. If successful, the property should then be returned
to the legitimate owners. The existence of a few dubious
property claims is not a good reason to introduce an
indiscriminate licence to trespass.
What the ‘roamers’ are demanding is a licence to
trespass, not a ‘rightto roam’
Why do I call this ‘licence’? Because there is a crucial
distinction between liberty and licence. In the social sense,
‘liberty’ means, roughly, not being interfered with by others
in your person and property. ‘Licence’ means, roughly,
interfering with the person or property of others—such as
walking across someone’s land against his wishes. But how,
it might be asked, can it be ‘trespass’ if the state allows it?
For two reasons. First, assuming that the land is legitimately
owned, the interference is objective whether it is allowed by
the state or not. Secondly, state legislation allowing such
roaming would only be lawful if the command (or ‘big
stick’) theory of law were correct. And if that theory were
correct then everything that the Nazis did, for instance, must
be held to be perfectly lawful. But I don’t see that the
‘law’ is simply whatever rules people with power can
impose on others. Laws are primarily spontaneous social
rules that have evolved for the common good; state legislation
is conceptually dependent on, and corrupting of, these laws.
However, these philosophical waters are too deep to enter
into seriously here.
Reasonable libertarian rights of movement must require that
there be some pathways through some properties where the
owner would otherwise be being a mere obstacle to the free
movement of other people. A very clear case of this would
be if someone were to buy a thin strip of land with no other
intention than to start charging a toll without adding any
service. But such necessary rights of movement are few and
far between in the cases under consideration. They are not
what the ‘roamers’ are normally claiming.
If landowners charged for access, ‘roamers’ would
also benefit
Once we understand the great general social value of
exclusive property rights, we should be very reluctant to ride
roughshod over such rights in any particular case without very
strong reason (David Hume’s Enquiry Concerning the
Principles of Morals, 1751, is a good exposition of the
social utility of private property). We should be especially
reluctant when there is a clearly efficient voluntary alternative,
as there is here: simply allowing the landowners to charge for
and regulate access to their property. The landowners are
unlikely to be able to charge very much, given that the service
is hardly essential. They are unlikely to refuse altogether
provided that people are prepared to pay a price that covers
their costs. The landowners might even improve the facilities
(maps, guides, toilets, cafes, ...) and advertise. Thus no one
will be imposed on and both sides to the trade will gain (as is
normal with all trade).
Contrary to activists’ claims, the disabled are not a
special case
As they are often mentioned—such as in the DETR
consultation paper Access to the Open Countryside in
England and Wales—what about the disabled? Those who
are truly disabled are rightly objects of our compassion and,
sometimes, charity. But to allow them to impose claims
against innocent people is to turn them into social parasites
who will eventually risk becoming despised—if they are not
already becoming so. There is usually no amount of money
that can compensate people for severe disabilities. Does this
mean that they must be given rights to ever more of what
others possess? Taken to its extreme, there is no stopping
point short of the enslavement of the able by the disabled
(even this might not be enough compensation to achieve
equality of welfare). And every step on the way towards this
is both immoral and inefficient. With the ‘right to roam’, as
elsewhere, the seriously disabled should only be helped
charitably—where the market will not suffice—if we are to
avoid this additional egalitarian disaster. That the recipients
often resent charity is a social boon and a spur to maintain
independence; the ‘welfare rights’ the state gives foster
both arrogance and dependence.
The problem is not lack of access, but excess of
publicly owned land
In fact, we can go much further in our rejection of this bogus
‘right to roam’. Far from allowing a ‘right to roam’ on
private properties, we should do the exact opposite of what
these ‘rambler communists’ are advocating. We should
positively add to private property wherever this is possible.
All those state-owned properties that currently allow
unrestricted access should be sold off so that these resources
can also be properly husbanded: maintained and developed,
instead of being stuck in a ‘tragedy of the commons’
(where all have only an incentive to overuse). What of all the
existing heaths and parks that are neglectfully owned by the
state, or local authorities, for the reckless use of all? These
should be sold or given away forthwith to private individuals,
charitable trusts, or businesses, so that they can be added to
the social efficiency that only private property and the market
can generate. But much so-called private property is, in any
case, so hedged about with state regulations that the putative
owners’ property claims are severely compromised. So
these regulations must also be abolished.
It might be suggested that at least some public right to access,
such as public footpaths, would seem to come traditionally
and legitimatelywith the ownership of some land. However,
that also seems to be an argument for some form of common
ownership (though imposing worst on the landowner), which,
similarly, cannot really improve liberty or welfare. It would be
better if some people were allowed to own these rights
privately, though that could always be through a charitable
trust.
Activists fail to grasp basic economic concepts
Like most political problems, the main source of error here is
a lack of understanding of basic economics and property
concepts. This lack, though, is often shared by professors of
economics, who reject the implications of free-market
economics just because they are ‘too extreme’—that is,
counter to common sense. The solution will only be found in
educating people about the economics and about the
philosophical inadequacy of some common sense. Any
discussion of ‘rights’ that does not have economic and
philosophical clarification as a background, is likely to
generate more heat than light.
Under no circumstances should the absurd ‘right to roam’
be incorporated into the legislation of this country. In reality,
it is clearly a mere licence to trespass. Armed with the
appropriate economic and philosophical arguments, we
should eventually be able to offer an effective counter-attack
with a movement for the ‘right to own’ privately every last
one of the state-controlled commons, heaths, hills, mountains,
downs, woodlands, rivers, beaches, and footpaths. As a
result, there will be no imposition on legitimate landowners
and more access to better resources for ramblers.
State-privileged farmer gets angry with prospective
competitors.
Notes
1. Dept of the Environment, Transport & the Regions (Welsh
Office), Access to the Open Countryside in England &
Wales, a consultation paper, p28.
2. Hansard, 30 January 1998, Col 696.
3. Dept of Environment, op cit, p22.
General References: Access Campaign Bulletin, Issue 9,
March 1998; Freedom To Roam Factsheet, Ramblers
Association, 1997; Freedom with Responsibility, Rambling
Today, Supplement, Spring 1996.
Top 50 books of all time : by Old Hickory:- "I have limited the selection to the books I have read. I keep to the norm of not recommending to others books I have yet to read. Clearly, books I have not read by now suggests a judgement of some sort."
The great landowners
of England often did
and do, to varying
extents, create what is
worth enjoying about
the land that they
own. The land is not
always in a natural
state, but is often well
developed and
maintained. Without
the owners there
would often be no
easy movement across
the land or views to
see. That the
landowners are often
personally rich
cannot itself be a
reason for imposing
on them. Or if it is,
then there needs to be
some independent
argument concerning
this rather than just
an appeal to envious
Procrusteanism.
Like anti-fox hunting,
the ‘right to roam’
has no serious case.
The anti-fox hunters
do not offer a more
humane alternative to
hunting the pest
(shooting and
poisoning it would
clearly be worse), and
they usually turn a
blind eye to the
suffering the fox itself
inflicts on other small
mammals. They also
often perceive
members of the hunt
as being from
despised
‘privileged’ (really,
advantaged)
backgrounds.
Those who are truly
disabled are rightly
objects of our
compassion and,
sometimes, charity.
But to allow them to
impose claims against
innocent people is to
turn them into social
parasites who will
eventually risk
becoming despised—if
they are not already
becoming so. There is
usually no amount of
money that can
compensate people
for severe disabilities.
Does this mean that
they must be given
rights to ever more of
what others possess?.