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Can the concept of Human Flourishing justify Land Reform in Scotland?

February 16, 2017

In this article, Andrew Mack (Diploma in Professional Legal Practice) examines Alexander's theory of Human Flourishing, and considers whether it can be used as a basis for justifying Land Reform in Scotland.

Can the concept of Human Flourishing justify Land Reform in Scotland?

 

The state should be empowered, and may even be obliged, to compel the wealthy to share their surplus with the poor, so that the latter can develop the necessary capabilities [to flourish].[1]

 

Land reform has been in full swing in Scotland over the past two decades. Indeed, it has been a primary concern of the Scottish Parliament since it was first formed in 1999. The Land Reform (Scotland) Act 2003 was a key statute in the early stages of land reform. It introduced a statutory “right to roam” and further provided two controversial Community Right to Buy Schemes. The Land Reform (Scotland) Act 2016 has recently added another, perhaps even more controversial, Right to Buy Scheme, to the repertoire of Schemes already available.

Land reform has long suffered accusations of undermining the rights of landowners and transferring too much power into the hands of non-owners. However, land reform, as draconian as it might appear, may not be without its justifications.  This article will firstly set out Gregory Alexander’s concept of Human Flourishing as a backdrop against which land reform in Scotland will be examined. It will then be determined if the two main thrusts of land reform in Scotland, namely access rights and the Right to Buy Schemes, can be justified under this model or if they lack any reasonable rationale. 

 

The Social Obligation Norm and Human Flourishing

Criticism has been aimed at land reform, which has been viewed as unjust due to the onerous obligations it places on landowners. Following the land reform Acts, landowners are now required to allow the public onto their land,[2] and in certain cases they are also required to give up their interest in the land that they own.[3] At first sight it may seem difficult to justify these demanding reforms.

A possible justification for land reform is that landowners have an obligation to share their land with others. This concept forms the basis of Gregory Alexander’s social obligation theory of Human Flourishing. Alexander argues that “all individuals have an obligation to others in their respective communities to promote the capabilities that are essential to human flourishing.”[4] For landowners, this means that they are burdened with the duty to share their land with others if it contributes to, and facilitates the flourishing of, the community as a whole.

So, what is the meaning of Human Flourishing? Alexander’s explanation is that it allows “individuals to live lives worthy of human dignity.”[5] Two of its key aspects are life in community with others and access to certain kinds of resources.”[6] Alexander takes the view that human beings are interdependent, and require one another in order to live a fully developed life.  A great deal of emphasis is placed on the importance of community, with Alexander going so far as to say that it “comprises humanity.”[7] By being part of, and contributing to, a community, humans have the best chance to develop their capabilities. Individuals will also have freedom over various aspects of their life, including health and education. Furthermore, from birth to death we learn from the people around us. It is for these reasons that Alexander argues that everyone has an obligation to contribute to their community, so that everyone in it has an equal chance of developing their capabilities, or, in other words, flourishing.

Not everyone will feel the need or desire to contribute to their community. In such circumstances, is it right that the state compels an individual to give up surplus resources in order to allow someone else to flourish? This is not a novel question. For example, taxation laws require the redistribution of surplus resources for the benefit of others. In addition, compulsory purchase law allows the state (which can be viewed as the “community”) to force landowners to sell land if it is needed to benefit the public good. The public interest may trump the private right of ownership where, for example, the construction of a new road is required. Land reform can therefore be viewed as a more recent method employed by the state to compel individuals to contribute to the wellbeing of others.

The focus of this article will now turn to determining whether or not land reform in Scotland can be justified against this backdrop of Human Flourishing.

 

Access Rights

One of the two main pillars of land reform introduced by the Land Reform (Scotland) 2003 Act was a statutory “right to roam.” [8] The 2003 Act allows anyone to enter onto most private and public land in order to cross that land, or for the purposes of recreation and education.[9] It should be noted that this right to roam does not include the use of motorised vehicles.[10] Provision is made to exclude certain land from the scope of access rights. For example, any land with a building on it or a sports field does not fall under the scope of access rights.[11] Furthermore, land required by the owner to have reasonable privacy and enjoyment of their land is also excluded.[12] You cannot, therefore, enter the garden of someone’s house[13] without their permission. A person will have the benefit of these access rights so long as they are exercised in a responsible manner.[14] Landowners also have burdens placed on them in respect of these access rights, as they must only use the land in a manner that does not interfere with the access rights.[15]

Prior to the introduction of these access rights, private land in Scotland could only be lawfully crossed if there was a public right of way over it, and this could only be for the purpose of travelling on a fixed route, from which no deviation is permitted, from one public place to another. The access rights provided by the 2003 Act vastly increase the range of land that can be lawfully accessed. This is a rather onerous burden for landowners of large estates, as they must now allow the public onto their land, where they may carry out many different activities. While the Act does not change the existing duty of care that a landowner owes to individuals who enter their land,[16] it has been pointed out that the increased amount of access taking could result in a higher risk of litigation.[17]

Access rights, and the concomitant onerous obligations, clearly conflict with the right of a landowner to exclude others from their land. As discussed above, access to certain resources is one of the main aspects of Human Flourishing. Access rights allow everyone to enter onto land that is surplus to the amount that is needed for the landowner’s reasonable enjoyment of that land. It may therefore be possible to justify the onerous right to roam with reference to Human Flourishing.

Alexander places a great deal of emphasis on the importance of recreation, going so far as to say that it is required by people for “living lives worth living.”[18] The fact that the 2003 Act specifically states recreation as a reason for entering onto land suggests that the Scottish Parliament shared the view that access to recreation is a very important aspect of human lives. The striking contrast of the current law relating to access rights for the purpose of recreation compared with its state prior to the passing of the 2003 Act is highlighted by the words of Lord Justice-Clerk Hope: “There is no case whatever in which a right to wander over, to rest or to lounge upon the ground of a private proprietor, under the new name of recreation, has ever been sustained.”[19] The Scottish Outdoor Code provides examples of recreation, including walking, picnics, and kite flying.[20] As Lovett puts it, access rights in Scotland “provides the people of Scotland with a fuller range of opportunities to engage their landscape for recreation and education.”[21]

What is important about these recreational activities is that, while they are perhaps relatively simple, the access taker does not need to pay a price to the landowner to partake in them. This provides recreational opportunity to all wealth classes. This concept goes straight to the centre of Human Flourishing, which has the ideal of surplus resources owned by someone else being put to use in order to benefit the wider community. The access rights introduced by land reform in Scotland, by allowing everyone access to recreation, therefore increases the proliferation of capability development. This, it is submitted, is a very strong justification for the statutory right to roam.

The social aspect of Human Flourishing also provides justification for land reform. Access rights allow many people, who might otherwise have never met, to engage with one another in a public setting. This further allows the development of capabilities, as it provides more opportunity for the members of a community to talk to and learn from one another.

So, it can be said that access rights are justified as a result of the benefits that the public receive. However, is it justifiable to the actual owners of the land that the access is being taken on? It is submitted that it is. The 2003 Act did not completely remove a landowner’s right to privacy. As mentioned above, there is provision to exclude land that is necessary to the landowner’s enjoyment of their land.  It is only land surplus to their needs as an individual that is affected.

Judicial discretion also provides scope for justifying access rights to landowners. The wording of the 2003 Act has been criticised as being open textured, leaving the application of the Act subject to individual court decisions.[22] This criticism was highlighted in Gloag v Perth & Kinross Council,[23] where Sheriff Fletcher found in favour of the pursuer and allowed a substantial area of land surrounding the house to be closed off to the public. It was decided that weight should be given to the type of landowner buying such an expansive estate, and that they require extra security and privacy.[24] This was a deviation from a strict application of the Act, which only offers provision allowing the type of land to be considered,[25] not the type of landowner. However, it may be that a more open textured approach to land reform could be favourable as it allows more flexibility where individual cases require it. Security and privacy are also aspects of Human Flourishing, and should be considered equal to recreational access. It may well be that a certain individual requires increased privacy in order to live a “dignified human life.” It is therefore submitted that judicial discretion allows a better balance to be struck, which helps promote Human Flourishing and justify the existence of access rights to landowners.

 

Community Rights to Buy

The second main pillar of land reform are the Community Right to Buy Schemes. Whereas access rights are concerned with granting individuals the right to access surplus resources (in this case land), the Right to Buy Schemes, on the other hand, relate to granting communities control over the governance of the land on which they live.

The 2003 Act introduced the Community Right to Buy[26] and Crofting Community Right to Buy Schemes.[27] The Land Reform (Scotland) Act 2016 has added a further Community Right to Buy to Further Sustainable Development.[28] As the newest of these Schemes, and the one that has the widest application and places the most onerous burdens on landowners, it is it which will take the focus of the present work.[29]

The Community Right to Buy to Further Sustainable Development is not merely an enhancement of the Schemes that existed prior to the passing of the 2016 Act; rather, it is its own entity. This new Scheme will give communities[30] the right to have a landowner’s interest in the land transferred to them, following Ministerial consent, whether the landowner is willing or not. This Scheme applies to all land in Scotland other than excluded land.[31] The Scottish Ministers will require the transfer of the land where it is likely that it will result in the sustainable development of that land.[32] The transfer of the land must be the only practicable way of achieving sustainable development,[33] and withholding consent has to be likely to result in harm being caused to the community seeking to exercise this right.[34] Sustainable development is not currently defined, which, as discussed below, has drawn criticism to the Scheme. 

Can this Right to Buy Scheme, bearing in mind that it can force the landowner to sell their land to a community, be justified, or does it simply undermine the right of ownership with no sufficient rationale?  Community, and the important role it plays in an individual’s life, is of central importance to the Human Flourishing model. The community should be provided with the resources it needs to benefit all of its members. This Right to Buy Scheme, if applied properly, endeavours to transfer surplus land out of the hands of the wealthier members of society and into the ownership of the poorer ones, so that they have just as much of an opportunity to develop their capabilities. This would fulfil the duties that the landowner has to the community of which he is a member. This would be an acceptable justification, provided that there is a transparent and equitable process in place.

Unfortunately, the Community Right to Buy to Further Sustainable Development does not have such a process. It may be exercised for reasons that fall short of an increased benefit to the wider community as a result of the uncertainty that flows from the meaning of “sustainable development.”[35] This is unsatisfactory as landowners can be compelled to sell their interest in their land. It would be difficult to justify this Scheme if it transpired that land was being compulsorily acquired by communities that did not end up benefiting from owning that land. If it was more clear what sustainable development entailed, then it would be easier to say that this Right to Buy Scheme is justifiable with reference to the central Human Flourishing idea of benefitting the community. As it stands, however, this recent land reform development does not guarantee that the community exercising this right would in fact be benefited, and in such a case, the ideals of the Human Flourishing model would not apply.

 

Conclusion

Land reform has placed heavy burdens on landowners. They are now obliged to allow access onto their surplus land whereas they once had a right to exclude others. Furthermore, in certain circumstances, landowners are required give up their interest in land entirely. One could be forgiven for thinking, on first sight, that these changes are indefensible wrongs. However, the vast benefits that are passed directly onto the wider population of Scotland brings to the forefront a justification. This article has taken the principles of Alexander’s theory of Human Flourishing and determined that, overall, it forms a reasonable and just basis for the changes in the law that have come about as a result of land reform. One aspect identified as perhaps lacking in justification in its current form is the Community Right to Buy to Further Sustainable Development due to the uncertainty that flows from the term “sustainable development.” It requires definition before it can be determined if the relevant Right to Buy Scheme can be justified under the principles of Human Flourishing.

In light of the benefits that land reform has brought to the majority of people living in Scotland, it is reasonable to say that the state should be empowered to require landowners with surplus land to share that surplus. Hopefully, as the land reform process continues in Scotland, the ideals of the model of Human Flourishing will continue to be given effect, so that everyone in Scotland is given a better opportunity to develop their individual capabilities, and to flourish.

 

 

[1] Gregory S. Alexander “The Social-Obligation Norm in American property law” (2009) 94(4) Cornell Law Review, page 746

[2] See Access Rights, discussed below

[3] See Community Rights to Buy, discussed below.

[4] Alexander “The Social-Obligation Norm in American property law”, page 745

[5] Ibid. page 748

[6] Ibid. page 749. These aspects are specifically discussed in the context of land reform below.

[7] Ibid. page 761

[8] Land Reform (Scotland) Act 2003 Part 1

[9] Ibid. s1. Provision is also made for the “carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.” This has the effect of allowing access taking for reasons such as paid tours of the land, without the tour giver being required to pay the land owner.

[10] Ibid. s9 

[11] Ibid. s6

[12] Ibid. s6(1)b(iv). The extent to which the land surrounding a private dwelling should be excluded is difficult to determine. See the discussion of Gloag v Perth & Kinross Council below. 

[13] The Scottish Outdoor Access Code offers some guidance on this issue at paras 3.13-3.17.

[14] Land Reform (Scotland) Act 2003 s2.

[15] Ibid. s3(1)a)

[16] Ibid. s5(2)

[17] G.L. Gretton and A.J.M. Steven, “Property, Trusts and Succession”, 2nd edn. (London, 2013), para 18.10

[18] Alexander “The Social-Obligation Norm in American property law”, page 806

[19] Dyce v Hay (1849) 11 D. 1266.

[20] The Scottish Outdoor Access Code, para 2.7

[21] John A. Lovett, “Progressive property in action: the Land Reform (Scotland) Act 2003” (2011) 89 Neb. L. Rev. 301, page 778

[22] Ibid. page 790

[23] 2007 SCLR 530

[24] Ibid. at para 57

[25] Land Reform (Scotland) Act 2003 s7(5)

[26] Ibid. Part 2

[27] Ibid. Part 3

[28] Land Reform (Scotland) Act 2016 Part 5. At the time of writing, this Scheme is not in force.

[29] For a detailed discussion of the Right to Buy Schemes introduced by the 2003 Act, see Malcom Comb, “Part 2 and 3 of the Land Reform (Scotland) Act 2003: a definitive answer to the Scottish land question?” 2006 (3) Juridical Review 195

[30] s49 contains the definitions of Community in relation to this scheme. A community may be, for example, a company which contains the scope of the community in its articles of association.

[31] Land Reform (Scotland) Act 2016 s46(1). Excluded land includes land on which an individual has their home, and land owned by the Crown.

[32] Ibid. s56(1)a)

[33] Ibid. s56(2)c)ii

[34] Ibid. s56(2)d)

[35] While it was said by Lord President Gill in the case of Pairc Crofters Ltd v Scottish Ministers [2012] CSIH 96, that sustainable development is in “common parlance”, this does not shed any light on the exact meaning of the term. 

 

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