Freedom, private property, and public access

by Emrys Westacott

Unknown-1The concept of individual freedom has been central to political philosophy since the time of John Locke, who published his groundbreaking Two Treatises on Civil Government in 1689. Before then, other values were paramount—for example: conformity to God's will, the cultivation of moral virtue in the population, social stability, national power, material prosperity, the quality of the culture, or the glory of the sovereign. These are criteria by which a society might be judged and compared to other societies. The happiness of the population can also be added to this list, although this is usually assumed to be a direct consequence of some of those other goods.

But the modern liberal tradition, which begins in the 17th century with thinkers like Locke, is virtually defined by the central importance given to individual freedom and individual rights. And these come to be viewed as deal-breakers. It doesn't matter how stable the society, or how materially prosperous, or how happy the population; the fundamental rights and liberties of individuals should not be sacrificed just to secure these other goods.

Of course, who should count as an individual endowed with sacrosanct rights has, from the outset, been a topic of controversy. Even now, when no respectable thinker would defend the denial of equal rights on grounds of sex, race, or religion, there are still controversies over the rights of immigrants, children, prisoners, convicted felons, and animals.

The exact meaning of freedom has also never been agreed upon. John Stuart Mill's "harm principle" provides a basic starting point: each person should be free to do as they please so long as they do no harm to anyone else. But specifying what constitutes "harm" is difficult. Am I harming my neighbors if I erect a hideous sculpture on my front lawn? Am I harming you if I say something that offends you? Am I harming society, or a section of it, if I advocate racial segregation or deny the Holocaust?

Moreover, many critics have argued, plausibly, that this negative notion of freedom is too abstract. In a sense, it is true that rich and poor alike enjoy the same right to buy an elite education, to work or not work, to run for office, to express their opinions, to travel by private jet or to sleep under bridges. But this notion of "right," argue the critics, is purely formal–that is, it ignores the issue of how effectively people can actually make use of the rights in question. In reality, the rich and powerful are able to exercise such rights to a much greater extent, and in that sense they obviously enjoy a lot more freedom. Nor are they thought to be violating anyone's rights if they live high on the hog while the poor of the parish starve. Defining freedom negatively, by way of Mill's harm principle, thus fails to recognize the need to secure for everyone the conditions that enable them to enjoy a richer, more positive kind of freedom that involves autonomy and self-realization.

There is another problem, though, with the classical liberal concept of freedom. From the outset, it was bound up with the idea of private property. Freedom is understood to involve, in addition to such rights as freedom of religion, freedom of belief, freedom of expression, freedom of assembly, freedom to travel, and freedom to earn and dispose of income, the freedom to own property, to protect it, and to dispose of it as one chooses. In capitalist societies this principle typically goes unchallenged. Consequently, we tend to overlook ways in which it may have interfered with the realization of the original goal of maximizing individual liberty.

One specific example of this that deserves more attention than it normally receives in political philosophy is the freedom to walk where one pleases. In countries like Finland, Norway, and Sweden, this right is guaranteed by recognition of allemansrätten or "Everyman's rights." Extensive access of this kind also exists in Iceland, Switzerland, Austria, Scotland, and Estonia. A few years ago the British government passed "right to roam" legislation that significantly increased the amount of privately owned land to which the public has access. Signs-on-a-way-marker-inform-people-that-of-open-access-land-on-the-BM0PE6

The laws that allow everyone the freedom to walk across uncultivated land, even if it is privately owned, are typically accompanied by sensible restrictions. People have to keep a reasonable distance from houses, and they may not damage property or make a nuisance of themselves by, say, leaving litter, or making a lot of noise. Property owners may also be allowed to prohibit people who are on their land from using motor vehicles, hunting, lighting fires, or camping for more than a night or two.

Yet in many countries, there is no such right to roam. In Ireland, for instance, the organization "Keep Ireland Open" points out that, "All legal rights to do with access are on the side of the landowners. The only places in Ireland where freedom to roam exists are the National Parks. Although they include some of the most scenic areas they cover only about 1% of the country." In light of this, the journalist Fintan O'Toole describes Ireland as having "perhaps the most negative and mean-minded regime for walkers in Europe"

In the United States, where freedom is routinely trumpeted as the nation's first virtue, there are vast tracts of publicly owned land, especially out West, where people effectively have the right to roam unless it is restricted by state or federal government for specific reasons such as environment protection. But there are also large areas that are privately owned and to which the public has no legal access. ImagesWhere I live in Western New York, "POSTED" notices on tree trunks or fences denying access to privately owned land are ubiquitous. Private property owners in some states can also legally prevent people from walking along lake shores and beaches.

The notion of freedom that underlies these restrictions is really quite odd. On the one hand, we have the right of a single individual to claim exclusive access to and enjoyment of an area that is possibly of significant natural interest and beauty. On the other hand, we have the rights of millions to visit such places. And asked to weigh these rights and interests, Lady Liberty apparently decided in favour of the few over the many.

To me, it seems obvious that when the general population is guaranteed reasonable access to uncultivated land, their freedom is significantly extended. They can then go to innumerable places that they might otherwise never be able to visit, and there take in vistas, watch birds, photograph flowers, forage mushrooms, search for fossils, and so on.

It also seems reasonable to consider this particular freedom as quite basic. After all, we are talking here about the freedom to enjoy to the full something that should be considered the common heritage of everyone–namely, our planet. Yet in the US and many other countries, the right to keep others off one's private property—by force if necessary—is generally held to trump any interest the public might have in enjoying the local landscape.

This attitude is hardly supported by the harm principle: I do not injure people just by walking through woods and fields or over moors and mountains that they happen to own. And the argument that I harm the landowners simply by violating their rights when I trespass on their land begs the question. One could equally well argue that they violate my rights when they forbid me to roam across their land?

Now, one should concede, here, that many private landowners are conscientious stewards of the land that they own. Some voluntarily grant easements that allow public access. And others, even though they may put up "No Trespassing" signs, will often accommodate people who make reasonable requests to visit their property for recreational or scientific purposes. But there are also many for whom exclusive access to a place seems to be part of its value to them–they type of people who post security guards to prevent members of the public from walking on their particular stretch of beach.

Near where I live, there is an annual event in October called the "Ridgewalk." Thanks to the efforts of those who organize it and negotiate with local landowners, people who sign up for the event are allowed to walk (or run) across terrain that has unique features in the region on account of its having not been covered by ice during the last ice age. How much better, though, if public access was guaranteed to these places all year round.

The ascendancy in America of a concept of freedom so entwined with the concept of private property has had a number of unfortunate consequences quite apart from the direct denial of recreational enjoyment. By restricting access to uncultivated land, it has contributed to people's alienation from their natural environment. It has also fueled the desire for personal wealth, since being rich provides a way of securing unconditional access to at least one small piece of nature. And by establishing this sort of exclusive ownership and access as an ideal to be aimed at, it has perhaps indirectly increased social alienation as well. Unknown

When we take an historical view of the way different societies have sought to realize an ideal of freedom, we find an initial difference in conception can eventually lead to significantly different trajectories over time. For those who prefer the less individualistic idea of freedom that sets public access to land above the monopolistic claims of property owners, the practical question in countries like Ireland or the US concerns how the current trajectory can be altered so that basic freedom of access guaranteed by something like "Everyman's rights" might be restored. Both the perceived interests of the landowners and the entrenched ideology that binds the notion of freedom to that of property rights make this hard to achieve. Any government today that sought to something like what Oregon did in 1911 when it guaranteed public access to its entire coastline would face formidable opposition.

As the current way of thinking, which entwines the notions of freedom and private property, became more entrenched, reform became harder. It is still possible to achieve, though, as the example of Britain shows. And those countries where "Everyman's rights" prevail can offer attractive models that less enlightened societies may eventually think about emulating.