Land, rights and the gift: the Countryside and Rights of Way Act 2000 and the negotiation of citizenship

The Countryside and Rights of Way Act came into force at the end of 2000 with,as part of its content, new provisions relating to public access to the English and Welsh countryside. In this paper we review the main elements of the Act and assess its meaning in relation to citizenship, territoriality and the place of land in English law and society. We invoke Mauss’s (1954)concept of Gift to explain the process of brokerage being made over access and rights in the countryside. In conclusion we reflect on the Act as being indicative of a wider move towards Bromley’s (1998)post-feudal scenario for land and its governance.

India’s disappearing common lands: fuzzy boundaries, encroachment, and evolving property rights

Opportunistic land encroachment occurs in many low-income countries, gradually yet pervasively, until discrete areas of common land disappear. This paper, motivated by field observations in Karnataka, India, demonstrates that such an evolution of property rights from common to private may be efficient when the boundaries between common and private land are poorly defined, or ‘‘fuzzy.’’ Using a multi-period optimization model, and introducing the concept of stock and flow enforcement, I show how effectiveness of enforcement effort, whether encroachment is reversible, and punitive fines, influence whether an area of common land is fully defined and protected or gradually or rapidly encroached.

Access to the countryside of England and Wales: public/private partnership or the privatisation of public rights?

This paper examines the evolution of public rights of access to private land in England and Wales. Since the Eighteenth Century the administration and protection of these rights has been though a form of public/private partnership in which the judiciary, while maintaining the dominance of private property, have safeguarded de facto public access by refusing consistently to punish simple trespass. While this situation has been modified, principally by post-World War II legislation, to allow for some formalisation of access arrangements and consequent compensation to landowners in areas of high recreational pressure and low legal accessibility, recent policy initiatives suggest that the balance of the partnership has now shifted in favour of landowners. In particular, the new access payment schemes, developed by the UK Government in response to the European Commission's Agri-Environment Regulations, locate the landowner as the beneficiary of the partnership, financed by tax revenue and justified on the spurious basis of improved 'access provision'. As such the state, as the former upholder of citizen rights, now assumes the duplicitous position of underwriting private property ownership through the commodification of access, while proclaiming a significant improvement in citizens' access rights.

Rights, citizenship and access to the countryside

This paper presents a reading of current UK Government policy on recreational access to the countryside of England, in terms of its citizenship and rights agenda. Given the continuity of traditional forms of land tenure and occupation, it is argued that the policy is less of recognition of the changing needs of a tranisitory society than it is a revisionist menifesto for resisting external influence and change. This is particularly so in terms of recreation, where the underlying organisation of the physical environment has been appropriated to reproduce a reflection of the social order which increasingly descriminates between culturally legitimate and illegitimate uses of rural space.

Institutional capacity and implementation issues in farmers' rights

Armed with the ‘equity’ and ‘conservation’ arguments that have a deep resonance with farming communities, developing countries are crafting a range of measures designed to protect farmers’ access to innovations, reward their contributions to the conservation and enhancement of plant genetic resources and provide incentives for sustained on-farm conservation. These measures range from the commericialization of farmers’ varieties to the conferment of a set of legally enforceable rights on farming communities – the exercise of which is expected to provide economic rewards to those responsible for on-farm conservation and innovation. The rights-based approach has been the cornerstone of legislative provision for implementing farmers’ rights in most developing countries. In drawing up these measures, developing countries do not appear to have systematically examined or provided for the substantial institutional capacity required for the effective implementation of farmers’ rights provisions. The lack of institutional capacity threatens to undermine any prospect of serious implementation of these provisions. More importantly, the expectation that significant incentives for on-farm conservation and innovation will flow from these ‘rights’ may be based on a flawed understanding of the economics of intellectual property rights. While farmers’ rights may provide only limited rewards for conservation, they may still have the effect of diluting the incentives for innovative institutional breeding programs – with the private sector increasingly relying on non-IPR instruments to profit from innovation. The focus on a rights-based approach may also draw attention away from alternative stewardship-based approaches to the realization of farmers’ rights objectives.