Birthright in Law

[Malcolm Ramsay]

Like a lot of people, I have, for a long time, regarded the current distribution of land in this country as one of the primary barriers to a fair society; but I had always assumed that it could only be changed through political means. However it struck me recently that the ownership of land basically rests on the judgement that a court makes when someone's use of a piece of land is challenged in some way - and I started wondering if it might be possible to persuade the courts that they can and should interpret the law in a different way than they currently do.

Persuading a small number of judges (for whom justice is a central concern) to be just, certainly looks to me like a less hopeless task than persuading a much larger number of politicians (whose primary concern is power) to oppose the interests of the powerful. And since I am both confident that the present system is fundamentally unjust, and inclined to believe that the courts do not wilfully turn their backs on justice, I have to believe that there exists some line of reasoning which will persuade them to change their current interpretation (if they have the freedom to do so). 

But with "their current interpretation" we come to a sticking point; the courts only ever deal with specific cases. The only sense in which they have a general interpretation of the law (ignoring statute for now), is that, in the absence of a new and original argument, they will interpret the law in a way that is consistent with the way that it has been interpreted in the past - in other words they will follow precedent. But they only ever interpret the law in the context of a dispute of some kind. We cannot simply go to the court and say "Every human being has a fundamental right, by virtue of having being born, to the occupancy and use of a piece of land, because these are necessary to their survival; please recognise this in all your judgements" - all we can do is put that argument forward in a particular case, and try and persuade them to find accordingly in that case (thereby setting a new precedent).

I think the courts would be very reluctant to deny that such a fundamental 'birthright' exists, (though I can think of arguments that might be put forward against it). But the problem is that, whilst the judge might recognise this fundamental right, any dispute would be about a specific piece of land, and for a claim to ownership to be entertained, it must be a claim to that particular plot. So a major issue is: how do we make a general right to land apply to a specific site? 

The courts will (I believe) recognise any claim to a piece of land as a valid claim, to be weighed against any competing claim. So the question is; how do we persuade a court that a birthright can outweigh an historic right; and following on from that, how do we imbue a claim to a specific piece of land with the weight of the claimant's birthright? 

My impression is that this is where attempts to invoke a fundamental right founder, because it is not possible to do this by looking solely at the 'real' matters of the land or the claim or the claimant's right. The key to it (in the first instance) lies rather in the 'virtual' world of legal principle; we have to hold up a mirror to the court and show that a birthright can outweigh a heritable right because the inner nature of the law demands it.

The reason for this is very simple; it lies in the court's need for law to be both consistent and universally applicable. A consequence of the need for consistency is that (factors outside the law permitting) any right which the law recognises in principle must be legally capable of manifestation in practice. In other words, while there might be 'real' world factors which extinguish the right in a specific case, the law must not itself create any barriers that would extinguish it generally - because if it did, it would make its own recognition of that right meaningless. And if a court automatically gives more weight to heritable rights than to birthrights, then in this country (or anywhere else where there is no unclaimed land) any such birthright would be extinguished.

So, to be true to their own values, the courts must either deny the existence of a fundamental right to land or acknowledge that it can manifest in a right to a specific plot, which can override an historic claim which does not itself incorporate a birthright. The question then is; in which specific piece of land does a particular person's birthright manifest? 

To answer this, we must start by weighting different levels of claim. And we might say, as a start, that birth establishes a potential claim to every piece of land within the jurisdiction of the court; that (looking just at one person's potential claim) setting eyes on a piece of land outweighs just knowing about it; setting foot on it outweighs just seeing it; setting roots on it outweighs just walking on it; growing up on it outweighs just settling on it; being born on it outweighs just living on it. Or we might perhaps choose different weightings, or different experiences - and we can refine any factors by taking duration into account. So we could, in principle (ignoring for the moment other people's claims), make a list ranking every piece of land in terms of a particular person's potential claim to it. 

But of course others do have their birthrights too, some of which will outweigh this person's (as may some other types of claim). But we can, in principle, go down the list eliminating those pieces of land where someone else's claim is better, until we reach a place where no one else has a better claim. And then we can say "This is the specific piece of land in which this particular person's birthright manifests". Where people own a freehold title to a piece of land, then that ownership (or part of it) would fulfill their birthright, excluding them from claiming another plot. In a few cases the person's birthright will manifest in the place where they were born or grew up; in other cases it will only be possible for it to manifest by their 'taking adverse possession' of some plot of land. But, in this way, if a birthright to land is recognised, the possibility exists to imbue a particular claim with the weight of that right.

This leaves plenty of scope for argument - on how exactly any individual's potential claims should be weighted, on how we compare different people's competing rights, both in principle and in practice, and on the relationship between natural and heritable rights. But my impression is that, at the moment, those arguments can be avoided by the courts, because without the sort of reasoning that I've put forward here, the existence of a general right to land has no bearing on any specific case. With this reasoning, I believe we can go beyond that sticking point, and those questions can no longer be avoided.

There are of course other aspects that might block change; possible arguments against a fundamental right to land, for example; and the question of whether the current interpretation of the law has been made rigid by Acts of Parliament. And there are no doubt many other arguments and objections which I haven't considered - if anybody reading this would like to raise some of them, I'll do my best to answer them.

Malcolm Ramsay

October 2004


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