Placing Property in the Landscape

Abstract

To explain property’s origins in place or landscape, this chapter draws on legal, historical, geographical, etymological and archaeological research to reconstruct how people understood land before property. The chapter relies on two main sources: Kenneth Olwig’s cultural geographical research on early landscapes in pre-feudal Scandinavia and Sub-Roman/pre-enclosure Britain illustrates the relationship between land, law and people; and Nicole Graham’s etymological analysis linking property not to ownership but to proximity affirms that a specific location to which someone belonged generated relations relevant to identity, community and a sustainable way of life. Land was communal, dynamic and characterised by attachment, the polar opposite of property’s defining characteristics today (individual, exclusive and alienable).

Legal historians have noted that traditional analyses of property rights tend to begin with the English Whig philosopher John Locke, rarely focusing on the meaning, scope or importance of property in the centuries of common law development predating Locke, and this is significant because the modem lawyer’s concept of property would have been unrecognisable to those early practitioners.¹ We, therefore, begin before property, focusing primarily on Kenneth Olwig’s work on landscapes,² Nicole Graham’s research on property, environment and law,³ as well as archaeological and etymological scholarship, to paint a picture of land in the centuries preceding the Norman conquest of England.

As discussed earlier, private property is of recent construction. Archaeological evidence has indicated that open field systems were in use in Britain for hundreds of years before the Anglo-Saxons arrived in the fifth century.⁴ Land managed in common afforded communities the opportunity to work together to protect resources and sustain their families. The particular character of cattle grazing and crop planting generated cooperative practices, which later formed the basis of customary law. Institutions were created to embed, defend and amend this locally acquired knowledge for future generations. This system was overlaid and adapted by successive communities throughout the island’s history,⁵ and hybrid communities may have arisen, based on archaeological and place-name evidence in the fenlands for example.⁶

The words ‘land’, ‘landscipe’ and ‘landsceap’ enter early English through the Anglo-Saxon language.⁷ The link between ideas of customary law, institutions embodying that law, and the people enfranchised to participate in the making and administration of law was fundamental to the root ‘land’, which was not dissimilar to our word country, with its own legal system and representative council.⁸ The primary meaning of land attached to a farm or manor or cultivated land such as a common or meadow, and in feudal Europe, these lands were not separate properties owned by individuals, but complexes of use rights that were determined by custom and personal feudal obligations. These lands, taken together, could constitute larger lands under a given body of law with ancient origins predating feudalism.⁹ Where lands were more challenging to inhabit, and required specialised knowledge and complex systems of organisation, there were less likely to be manors and so, they evolved to be more autonomous in character—peasant republics and flexible alternatives to centralised states.¹⁰ This distinguished a landscape from an administrative unit, as there was more independent internal development, and this gave the landscape’s inhabitants a greater right to self-determination and participation.¹¹

‘Land’ was therefore a system of nested obligations, use rights and institutions representing a people and its relationship with the material environs. Its cognates ‘landscipe’ and ‘landsceap’ illuminate this relationship, as they refer to ship or shape. They denote both the role of the people in shaping the land, giving it its unique physical or cultural character, the character of the land itself in influencing the practices and livelihoods of those people in a dynamic mutually constitutive process and the shape or form the abstract quality of this relationship assumed. Ship, as in fellowship, signified the abstract qualities generated by the people working the land together, informing the values and beliefs that bound them together, and provided the moral content for the representation inhabitants of the land received for working the land together. This representation was embodied in the institutions developed to protect these customary rules and rights, in open-air assemblies or things, and the rules and practices they developed, informed by the land and generated by their association with each other, became their locally derived laws.¹²

Law is thus an inherent element of the landscape. As Olwig writes, the ancient Germanic name for the representative legal and political body of a land was the thing or moot—the root of the modern words ‘thing’ and ‘meeting’.¹³ It is the deliberation of the thing that builds the land as a polity or res publica (transliterated ‘public thing’), or landscape. This interplay between land, community practice and its institutionalised relationship thus renders the landscape a political one, and situates the power of the representative body in custom.¹⁴

Landscipe in the Old English spelling¹⁵ is derived from the Germanic family of languages: Dutch landschap, Danish landskab, Swedish landskap and German landschaft.¹⁶ It refers to the land, its character, traditions or customs.¹⁷ The landschaften of Angeln and Frisia from Germany and Denmark produced the settlers who pushed the Britons north and gave England its Anglo-Saxon identity.¹⁸ As noted earlier, archaeological evidence indicates that they could very well have adopted British land practices, for communal land use was already extant in the Celtic world.¹⁹

This is the context in which land use and ownership arose in England. The landschaft was a community of law,²⁰ with its own representative council or ting, as in Jutland in Denmark. The institution of the ting was also found in England where it was known as the moot. The Danish land was divided into herreder, each with its own ting, much as the English shire or county (such as Northumberland) was divided into hundreds. Other historic shires and areas with the suffix -land or -folk (Cumberland, Westmoreland, Suffolk, Norfolk) provide evidence of once-autonomous areas in England.²¹ All important decisions binding the community were made at this assembly, also functioning as a court, and as a mechanism communicating between local communities and central authorities.²² Custom and culture, therefore, defined the land as a social entity that found physical expression in the area under its law.²³

The common law thus originated in local custom. At the beginning of the 1100 s, the English legal system was pluralistic, fragmented and decentralised. Jurisdiction was largely based on medieval political units—the shire, hundred or borough. From the tenth century onwards, each of these jurisdictions had been nominally under the supervisory control of the King.²⁴ Until the eighteenth century, jurisdiction was predominantly organised by subject-matter or personal status: ecclesiastical courts determined matters relating to church law, manorial courts applied the body of customary law known as manorial law to matters concerning village life and forestry courts oversaw the body of law known as the law of the forest.²⁵

Land use in Anglo-Saxon England was thus far more diverse and flexible and modes of succession demonstrate this.²⁶ Bookland (bocland) and folkland (folcland), were used to describe all land in Anglo-Saxon England, but the words themselves are rare in Anglo-Saxon documents.²⁷ Bookland is believed to refer to land granted by royal boc, or charter, while folkland addressed everything else, including inherited land and common land. Another category, family land, has been suggested.²⁸ Early laws indicate that these categories were fluid, and relied on the public assemblies or courts to modify succession arrangements and mediate disputes. The regular meetings of the shire and hundred would have provided the ideal forum for these declarations.²⁹ Such land use systems were therefore not primitive or idyllic in character. They were flexible, in order to accommodate the layered and socially complex structures of their communities, where common property rights coexisted with, complemented, qualified and enhanced existing or nascent ‘vertical’ hierarchies of all kinds, whether social, religious, political or economic.³⁰

These landscapes could adapt and reinvent themselves, even in challenging environments such as the fenlands, where bylaws were preserved in oral traditions of custom and practice to ensure equitable distribution of shared resources.³¹ This did not preclude interaction with hierarchical structures, and certainly, the arrival of the Normans marked the beginning of the feudal period in England and changes to procedures in land use. As Shaunnagh Dorsett notes, the law was very much in flux at this time, flanked by alternative, and eventually, competing jurisdictions. The pre-Norman divisions of shire, hundred or borough survived the Norman Conquest and continued to function. Each had separate courts, but commonly overlapping jurisdictions.³²

Nevertheless, control over land did not signify ownership in the modern sense. Feudal lords did not possess land as property, as was the case under the Roman law of possessio. Feudal ties to the land were developed through interpersonal relations of fealty, whereas the customary law, which guaranteed access to the commons, was the expression of particular local and national communities.³³ The lord’s seigneurial rights were therefore not absolute, and merely one of an array of interests that were place-determined.³⁴ As David Seipp writes, land was different: ‘land meant an army could be raised; it sustained overlapping claims and casual and regular uses, and was therefore treated differently in the courts, unlike property claims in goods and animals’.³⁵

We can see how property and landscape intersect when the etymology of property is examined. Graham writes that property originally invoked an integrated relationship between people and place,³⁶ a relationship that mirrored the connection between people, land and the law in the landscape. This was derived from the Old French ‘proprete’ from the Latin proprietas meaning, proper to, one’s own or special character.³⁷ The French word ‘propre’ means clean or suitable in the sense of ‘close’ or ‘near’ or ‘in place’, and the Old French and Latin meanings derived from the Greek ‘idiotes’, meaning a distinctive or distinguishable quality, the peculiar nature or specific character, and it was the means by which ownership could be claimed—the proximity of the thing to the person was considered sufficiently close so as to be associated with that person.³⁸ Real property signified a human relationship with the physical features of the landscape that overrode lesser forms of property (in goods or animals). Real property could not be explicated without this identifying set of geophysical and cultural relations.³⁹

Gray and Gray call this a sense of propriety, ‘rightness’, meaning that property does not derive from any sense of entitlement (enforceable exclusory title).⁴⁰ Property linked to identity, because to say something is ‘my own’ signifies that it forms part of who they are. Because land was an important part of identity in medieval England and the early common law, the location of land was relevant in any dispute, rather than abstract legal categories.⁴¹ Nevertheless it is the secondary meaning of property that prevails today, meaning an interest in having a thing, rather than the attribute or characteristic of a person or thing.⁴²

This inversion of property’s meaning, from mutual identification to alienability, from attachment to detachment, reflects what Graham describes as the transformation in the way modern Anglo-European relationships between people and place have changed over time.⁴³ Property is defined not by identification or association with a place, but its alienation from it. This connotes a shift from a mutually defining relationship of ownership and identity to a unilateral relationship of ownership and alienability.⁴⁴ Today, property is viewed as abstract entitlements exchanged between persons that are alienable from, rather than proper to a person, no longer attached to or even integrated with the identity of an individual or community.⁴⁵ Landscape’s demotion is evident by the word’s re-entry in the English language in the sixteenth century, associated with landscape painting and gardening, viewing the land from the individual perspective at a distance, based on cartographical and surveying techniques and representation through visual rather than political means.⁴⁶

Land and place had become synonymous with property—by the seventeenth century, the term itself denoted both property and knowing one’s place.⁴⁷ The historical concept of landscape in the primary substantive sense of place and polity, referring to lands ‘scaped’ or shaped according to customary law as adjudicated by representative legal assemblies especially influenced English common law.⁴⁸ In such a polity, common customary law is primarily enforced through moral pressure and community control (the word ‘moral’ deriving from the Latin word for mores or customs), so that a customary prescriptive use-right that is neglected or abused automatically extinguishes any moral right to it, and will be lost; this principle ensured the functioning of a working community, and prevented the erosion of a shared-resource system by reinforcing rights held in common for the public good.⁴⁹ Sustainability in resource management, representation and social justice thus characterised the working landscape.⁵⁰ However, the common law eventually consolidated custom, and in so doing, dismissed locally specific practices that enabled those landscapes to function.

What archaeological, etymological, historical and geographic research indicate is that there were many ways of seeing, defining and regulating land, even as Norman governance concentrated control hierarchically, away from local communities. Nevertheless, the focus on an administrative rather than a legal system meant that customary practices persisted until consolidated in the common law of the realm.⁵¹ This was problematic, as alternative systems of law were replaced.⁵² In addition, custom codified in the law neutralised the flexibility inherent in communal land management,⁵³ which had implications for community relations and livelihoods and by extension the working landscape.⁵⁴ Many localised jurisdictions or specialist bodies of law, such as lex forestae or the law of the fens, slowly disappeared under the pressure of societal change, leaving behind only those elements that had been accommodated within the framework of the common law. Thus, while lex forestae receded, part of manorial tenure survived, enforced by the common law as the custom of copyhold.⁵⁵

The complexities that surrounded land ensured that inheritance was challenging and land use was often contested, but this was a result of land’s responsivity to natural resources in ways that were locally delineated, but never private, exclusive or defined by its alienability. Landscape, therefore, contextualised the meaning or property, since the concept (and the concomitant right) would be rendered meaningless without these place-based connections. Propertising the landscape in the modern sense of the word displaced all other (non-proprietary) interests, as evinced by the crystallisation of the property concept in political economy and the law. This shift from a spatial logic inherent in the landscape to the abstract logic of property would be refined and illustrated in the theories of Locke, Blackstone and Marx.