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Land

Land is special. Most fundamentally, perhaps, it excites emotional commitment. Much of the spirit of nationalism is based on the conviction that a particular territory gives an identity that is celebrated in rituals of various kinds as well as in popular culture. The notion of home is a place where one is safe, whether that is a building, a locality or a nation, perhaps because of the protection given by other people (Linklater, 2015). Religions have sacred spaces - churches, mosques, stone circles, groves of trees or tracts of land - which inspire feelings of awe, of devotion and of a kind of power. And secular spaces can also celebrate what Emile Durkheim thought of as the collective impulse of sacredness, whether they are football stadia, rock concert venues or roadside memorials. Places - religious or not - that carry this emotional charge prove resistant to being treated as commodities like any other. The earliest known lawsuit in Britain, in the year 118, concerned the sale of a woodland sacred to the ancient Britons (Jessel, 2011). Ever since then, the private ownership of land and its purchase and sale, particularly common land, have been hotly contested, but not, it should be said, particularly successfully (Linklater, 2015). In contemporary Britain, the countryside has legal protections and national parks are revered. A study (Rose et al., 1982) found that farmers in Britain, operating in a capitalist market, also manifest a commitment to the land, to its stewardship, and to farming as a practice that is bound up with their ownership of land but is not impersonal. Karl Polanyi puts the point in referring to land as a 'fictitious commodity'. He argues that: 'The economic function is but one of the many vital functions of land. It invests man's life with stability; it is the site of his habitation; it is a condition of his physical safety; it is the landscape and the seasons. We might as well imagine his being born without hands and feet as carrying on his life without land' (Polanyi, 2001: 187).

There are more mundane considerations too. Land is a social and economic resource. It is required to grow food, to put up buildings, to provide roads and build factories. There is a strong collective interest in its use. It is difficult to imagine a society in which people were not able to move about, build houses or earn a living. As the authors of an influential textbook on land law say in introducing their book: 'Since land provides the physical base for all human activity, there is no moment of any day in which we lie beyond the pervasive reach of land law . Largely unnoticed, land law provides a running commentary on every single action of every day' (Gray and Gray, 2007: 1).

These special qualities of land have implications for the control over its use, a control that is, in modern times, given by ownership that is expressed in law and supported by the state. That ownership, however, is not straightforward.

Law, Land and Property

There is a conventional account of land ownership and the law that goes with it that suggests a radical change took place between medieval conceptions of the use and control of land and a later notion of absolute property that developed slowly from the fourteenth century onwards (Linklater, 2015). A 'landscape of rights and customs' was replaced by 'a landscape of private property' (Williamson and Bellamy, 1987: 102). In the early Middle Ages, farmers had customary rights to the land that they worked, but they also had obligations to their lord. Gradually, however, these relationships changed so that large landowners had contractual relationships with their tenant farmers rather than customary ones and a class of larger farmers emerged who had ownership of the land that they worked. The large landowners saw themselves as absolute owners mainly, though not entirely, free to do what they liked with their land and were less constrained by customary obligation. Such a view of land ownership was, of course, contested by landless farmers and farm labourers over a very long period, mainly with a view to installing a system of peasant proprietorship. A different form of this ideological argument became prominent in the later nineteenth century, organized around the possibility of the nationalization of land promoted by followers of Henry George (Douglas, 1976; Tichelar, 2018b). No less a figure than J. S. Mill notably argued that: 'No man made the land. It is the original inheritance of the entire species.' People should only own what it is that they create. There can therefore be no private property in land, only in its produce. For Mill, therefore, one possibility is that 'the State might be the universal landlord, and the cultivators tenants under it' (Mill, 1978: 94, 96). Since then, this movement has helped to create a different view of property in land.

Legal textbooks warn against an intuitive or everyday understanding of land law in England. By that is meant a notion of land as a physical presence whose ownership is absolute; either one has ownership of a piece of land or one does not. Land ownership, however, is not a question of a physical object; it is rather an issue of control over use. The ownership of property in land is best conceived as a set of rights of control some of which may be legally exercised by an owner but others of which may be held by some other person, or institution. Land may not be unique in this respect but its complexity is unusual. For example, a nominal landowner may cede rights of control to others by leasing or licensing. In leasing, a tenant is granted exclusive possession for a fixed term in exchange for a payment. But there are a bewildering number of varieties of this arrangement. Similarly, licenses can vary from a simple permission to be on someone's land to a more proprietorial interest. Or the extent of a landowner's control may be circumscribed by restrictive covenants or by devices such as easements, rent charges, mortgage charges or rights of entry. However, in modern times, by far the most significant cause of restriction on property rights arises out of the activities of the state, especially in planning legislation and environmental protection. Gray and Gray (2007: 420) argue that the contemporary view of property law is in stark contrast with the absolutist view of earlier times:

With their ringing assertions of 'property absolutism', the great judges of the Victorian era acknowledged no overriding duty on the part of the private landowner to safeguard wider interests in the exploitation of his land. The estate owner remained free to utilise 'his' land selfishly with little or no regard for community concerns or environmental sensitivities.

And they conclude:

The role of government in the regulation of land use . is now so pervasive that 'property' in land is often said to have taken on the character of a kind of social stewardship . 'Property' can therefore be conceptualised as involving - on a vast scale - the distribution by the state of user rights which are heavily conditioned and delimited by the public interest . On this view, 'property' in land comprises not so much a 'bundle of rights', but rather a form of delegated responsibility for land as a valuable community resource. (Gray and Gray, 2007: 55)

Restrictions, by the state, on property rights in the name of the collective interest are an intervention in the market for land and constitute resistance to commodification. How, then, did this increased role for the state come about?

Land Use Regulation in the UK

To answer that question, I now look at the history of what in the UK is called town and country planning. It is a commonplace of that history that town planning arose as part of a very strong reaction to the horrors of everyday life for many people in the nineteenth century, especially for those living in cities. This stemmed largely from a growing realization that the very rapid growth in urban settlements that occurred in the late eighteenth and the nineteenth centuries, together with an unconstrained market in industrial development, had generated a set of acute social problems of very poor housing, very long working hours, poverty, ill-health and, in the eyes of many, moral failings. It is difficult to overstate the moral outrage generated by this realization, which is expressed, over a long period, in novels (Dickens and Gaskell), journalism (Stead), government inquiries (Royal Commission on the Housing of the Working Classes) and surveys of the poor (Booth and Rowntree). Philanthropic individuals and organizations and more enlightened entrepreneurs made attempts to solve, or at least moderate, these problems over the course of the nineteenth century. A very early venture was Robert Owen's experiment in the construction of workers' housing at New Lanark in Scotland in the early part of the nineteenth century, which combined the provision of housing with wider welfare schemes. Similar private, semi-philanthropic initiatives were undertaken by employers who effectively adopted Robert Owen's model village idea. Amongst the biggest and best-known of these were Saltaire (1860), Bournville (begun in 1895) and Port Sunlight (1885) (Ashworth, 1954; Bell and Bell, 1972; Hall, 1988). However, crucially, these initiatives were private developments, often undertaken, moreover, by people with somewhat mixed motives, whether that was the...