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May 22, 2005

What is freedom, part 4,782

Mika LaVaque-Manty: May 22, 2005

Here are two examples of how people can exercise cherished freedoms: One, you buy some land in the country — 20 acres, say — and because you don't like snow-mobilers or hunters or hikers or just 'coz, you put up a chain link fence around it and lots of "No trespassing" signs. Two, you love the outdoors and rejoice in the fact that wherever you go, you'll be able to head into the woods without having to worry about fences or "No trespassing" signs, knowing that pretty much everywhere you can pick berries, collect mushrooms or wildflowers, swim in lakes and even camp a night or two.

The former is familiar to everybody in North America. The latter may strike North American readers as not a freedom at all, not least because it conflicts with the former. But it is a real freedom. While my point here is not to adjudicate between the two freedoms or advocate one over the other — they do conflict, but both have their places and uses, as far as I'm concerned — thinking about the two is conceptually helpful: it's one of many reminders that freedom isn't natural, but an institution, and that if one wants to defend one conception over another, one had better have arguments that are attentive to history and context.

That's a trivial point, perhaps, but I find myself needing to make it pretty often.

The second freedom, in case you're wondering, is the so-called Right of Public Access, and it's an ancient Scandinavian institution still alive and well in Sweden, Norway, and Finland. The original Swedish term allemansrätt (allemansrett in Norwegian, jokamiehenoikeus in Finnish) literally means "everyman's right." The basic idea is that it allows everybody — not only citizens —  "free right of access to the land and waterways, and the right to collect natural products such as wild berries and mushrooms, no matter who owns the land."  There are national variations on the legal status of the right and its details. In Sweden, it has been a constitutional right since 1994: "There shall be access for all to the natural environment in accordance with the right of public access" (The Instrument of Government, ch. 2, art. 18). In Norway, its details are in the Outdoor Recreation Act (which explicitly prohibits most barriers and "No trespassing" signs).

Happily, this kind of freedom comes with lots of responsibilities, and most of the detailed statutes and policies list many more "don'ts" than "mays." The Swedish slogan "inte störa, inte förstöra" captures the constraints pretty well: "Do not disturb, do not destroy." It's close to the North American "leave no trace" principle about wilderness behavior, in addition to which you can't disturb other people in nature or at their homes.

It's not surprising that the Right of Public Access hasn't ever quite existed elsewhere in Europe: Scandinavia's low population density has made it possible and in fact probably originally motivated the convention. So my point here is not to argue that it would be a nifty idea worth adopting elsewhere. Counterfactually maybe, or maybe not. (What if Leif Eriksson had stuck around and had occupied the continent with Norsemen, instead of varieties of Brits reeling from their own tragedy of the commons being the primary early occupiers?) But clearly the idea is now a non-starter, here and elsewhere. In North America a quasi-Lockean commitment to the sanctity of property rights is pretty firmly established.

I have no particular interest in arguing against that quasi-Lockean conception of freedom. In fact, I happen to like it pretty well much of the time. My point is primarily theoretical, even if the example I use is from the real world. The example is particularly interesting because it predates state institutions. The Right of Public Access is an institution, all right, but the state — in any meaningful sense of the word — is not its creator. The state eventually comes to protect it and to enshrine it in its laws, but its emergence is organic: it's a convention enforced by mutual understandings and local social pressures before the state emerges (or appears on the scene, as the case was in late medieval Finland). And so what we have as a result is that, in Scandinavia, the very idea of property in the land does not include an unqualified right to prevent others from using it.

You might think this appalling, of course. You might also think you now have an idea why those weird Scandinavians seem so fond of the intrusive welfare state. (There may be a connection, there may not be; it's a seriously difficult historical question lots of people have tried to answer.) But if you think so, you'll have to offer an argument for why it's appalling. What you can't do is say that the quasi-Lockean conception just is freedom and the Right of Public Access is not.

(I'll leave it for another post to argue why the Right of Public Access is also a liberal and an individual right.)


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Posted by: Tad Brennan

"It's not surprising that the Right of Public Access hasn't ever quite existed elsewhere in Europe"

Yeah, I'll take your word for that. At the same time, I believe that the British system has elements of it. Walkers are allowed a greater default right of access to cross private land on established walkways, though of course it's all rather involved once you go into detail. (See this link just for basics).

It's not the Scandinavian system (e.g. no default access to berries & mushrooms), but it is closer to it than the American system is, and so might provide some sense of the spectrum.

Posted by: Tad Brennan | May 22, 2005 8:11:57 PM

Posted by: Dan Kervick

I don't see why anyone should find the Scandinavian or English or American system appalling. These different arrangements just appear to different ways of striking a balance between the powers and liberties of individuals, their independence and interdependence, based on the accidents of culture, natural habitat and fundamental economic conditions.

Nor do these different institutions appear to involve different conceptions of liberty. But I think most would agree that there are a great many different kinds of liberty, and that the customs and legal institutions that govern how these liberties are distributed may vary from one society to the next.

Posted by: Dan Kervick | May 22, 2005 8:38:11 PM

Posted by: Brian Weatherson

I'm no expert on this, so I could be monumentally mistaken, but my impression was that large parts of outback Australia were governed (either de jure or de facto) by something like the Scandanavian model. Of course, the parts of Australia I'm talking about are much less densely populated than even northern Scandanavia.

Posted by: Brian Weatherson | May 22, 2005 8:49:14 PM

Posted by: Mtnmarty

The American system seems to treat water differently from land.

Hawaii makes all beaches public. Some western states guarantee access to rivers for fishing, etc.

Posted by: Mtnmarty | May 22, 2005 8:53:50 PM

Posted by: D.A. Ridgely

Welcome, Mr. LaVaque-Manty.

An observation or two. First, I might point out that the U.S. still has a low population density, certainly by contrast to most of Europe, and did so throughout its history. Still, your point is well taken -- those British immigrants brought their own social and cultural understanding of freedom and property with them, much to the dismay of the Native American population, I might add.

I think you oversimplify our history a bit, though, and recommend you consider the western expansion and the open range / water rights influences on the law of real property as it developed in the western territories (and, subsequently, states) and which still affect current alluvial rights and coastal commons. (As they say in Texas, “Whiskey’s fer drinkin’, water’s fer fightin’ over!”) There are some interesting parallels there to your Scandinavian examples which demonstrate the same sorts of conflicting concepts of freedom and property.

Posted by: D.A. Ridgely | May 22, 2005 8:53:53 PM

Posted by: Tad Brennan

Mtnmarty could also cite Oregon's coastline, which is entirely public-access by law. (As I recall from having lived there many years ago, private owners of property adjacent to the coast could not prevent access to the beach itself and some margin; whether they had to *provide* means of access e.g. roadways I do not know). The phrase "riparian rights" comes to mind for this whole cluster of topics, but perhaps that's only to do with fresh water?

Posted by: Tad Brennan | May 22, 2005 9:18:44 PM

Posted by: D.A. Ridgely

Yes, Mr. Brennan, riparian rights have to do with surface water rights based on land ownership bordering the stream, river, etc. As for interests in land, even the old English common law system recognized a wealth of rights of the sort you mentioned previously. Students of real property law can drive themselves crazy trying to make sense of easements, equitable servitudes, covenants running with the land, etc., all of which afford some or all non-title holders varying sorts of rights in or access to or across otherwise privately owned property.

Posted by: D.A. Ridgely | May 22, 2005 9:34:14 PM

Posted by: john t

Perhaps an unsophisicated point,but a dichotomy doesn't necessarily exist between Lockean and Right of Public Access concepts of Freedom,{last para]. You could see where Access could become appalling given a certain type of political ethos. But a number of factors inherent in Scandinavian countries lend the necessary sense of commonality required to make it work. As to personal preference, I don't think I'd like some guy peering in my kitchen window at 8:ooAM while walking his dog. And why would Lockean,quasi or otherwise,concepts of freedom be the sole bedrock upon which freedom rests.

Posted by: john t | May 22, 2005 10:39:32 PM

Posted by: le sequoit

Several miles from my home in the Scandinavian outpost of Wisconsin is Geneva Lake, not nearly the real thing but impressive in its own way. There's a public trail entirely around the shoreline, a distance of twenty seven miles.

The unusual aspect is that this lake is surrounded with two to twenty million dollar estates, once the playgrounds of the Wrigleys and Armours and other Chicagoan elites.

It is a very strange sensation indeed to stroll across the lawn of such palaces, crossing between the pools and boat houses with a sheepish nod to Chad and Veronica.

It is perhaps appalling in its oddness, an unnatural presentation.

Much like Jesper Parnevik's wardrobe.

Posted by: le sequoit | May 22, 2005 10:52:51 PM

Posted by: Sans Serfs

Could the willingness to tolerate high taxes to support fellow countrymen and the welcoming of friendly trespassers be correlated with the astounding ethnic homogeneity of these countries? IE one big family? Seems likely.

Posted by: Sans Serfs | May 22, 2005 10:58:15 PM

Posted by: Bret

My impression (don't know if it's right) is that many No Trespassing signs are posted because of fear of liability. For example, I've done a hike here in San Diego right by a No Trespassing sign to some natural pools/springs where you can go swimming. The story I heard was that somebody got hurt swimming there before the No Trespassing sign was put up and there was the threat of a lawsuit so the guy put up the sign in order to protect himself but actually doesn't much care if people hike there.

I spent about 18 months after I graduated from college driving around on a motorcycle (and other assorted activities) with very little money which meant that I slept on the ground on other people's property quite a bit (basically nightly), often with No Trespassing signs posted. From that experience, I feel that there's actually not that much different between the United States approach and the Swedish approach. In either case, if you utilize someone else's property and nobody notices, then nobody cares (or at least nobody knows to care). In either case, if you utilize someone else's property and you're in their face obnoxious you're likely to be in trouble. I don't think the difference is all that significant.

Posted by: Bret | May 23, 2005 1:14:29 AM

Posted by: Jussi Suikkanen

Interesting post. One thing I object to is that you call us Scandinavians weird. I am not sure if that is true. At least I hope it's not.

Anyway, one comment for John T. I am not an expert on law, but still remember learning in school in Finland that the Right to Public Access does not extend to other people's yards or pretty much to 'where they can see you from their home window'. If I don't remember wrong the reason for this is that there is a law securing privacy and it overrides the right to Public Access. So, if you are walking on the land of others you need to walk some way around their houses. I have to say that I used to enjoy the law while living in Finland. It does provide an important public good with little loss to anyone in those circumstances.

Posted by: Jussi Suikkanen | May 23, 2005 3:50:34 AM

Posted by: Bernard

The sense of community works in at least two directions. 'Right to roam' laws have been introduced in Britain in recent years allowing random passerbys to walk through private estates, farmland and the like and one of the strongest complaints from the landowners is that litter is dropped, gates are left open and that the public in general don't show enough respect when they pass through. I'd guess that this too is different in Scandinavia and that this kind of trust is more difficult to build across larger, further spaced and less homogenous populations. That's not to say that I'm unsympathetic to the idea of public access, but in order to work it has to be a two way deal, and that takes time and effort to build.

Posted by: Bernard | May 23, 2005 6:07:38 AM

Posted by: le sequoit

Jussi Suikkanen,

If I was read as seconding the weirdness of Scandinavians, it was certainly a bit of self-deprecation.

There seems to be a commonality to these and other Scandinavian practices. It seems to me that they, or if you'll excuse the last hundred years, we, value freedom from shamefulness quite dearly.

Posted by: le sequoit | May 23, 2005 8:35:08 AM

Posted by: john t

Jussi Suikkamen, "law securing privacy--overrides th right to public access". Now that's an interesting insight. It is intimatd in Mr LaVaque's original post and maybe expanded by them that know. My comment about the kitchen window had the U.S.A. in mind as well as my own preference for a type of freedom which rests upon a congeries of rights of which property is among the foremost. In 1972 the Wisconsin Supreme Court ruled that an owner could be prevented from building on his property on the grounds that the public had rights to it in it's natural state. It goes without saying that this is theft. About two years ago a county in Virginia passed an ordinance { possibly written by a Josef Goebbels devotee ]that banned smoking in one's own home if the smoke bothered someone outside the home. Due to an outcry this exercise in science fiction was rescinded. Vigilance is the price of liberty ?

Posted by: john t | May 23, 2005 10:28:09 AM

Posted by: D.A. Ridgely

In Virginia, John T? I think not. Perhaps you are thinking of Chevy Chase, Maryland where the local politburo enacted such an ordinance several years ago, only to have their political teeth kicked in by the irate citizenry of the “Free State.” Then again, I could be wrong, but I’d be flabbergasted if even the likes of the People’s Republic of Arlington or Alexandria attempted such a stunt in the Commonwealth.

Posted by: D.A. Ridgely | May 23, 2005 10:58:06 AM

Posted by: pickabone

"In 1972 the Wisconsin Supreme Court ruled that an owner could be prevented from building on his property on the grounds that the public had rights to it in it's natural state. It goes without saying that this is theft."

Hmmm, seems the point of this thread is that it does not in fact "go without saying." So say it. How is this theft? Please articulate how the freedom of the property owner automatically overrides the freedom of the community. If the Right of Public Access is subservient to Right of Privacy in the home, does the building of a home that will trigger the Privacy Right on virgin land encroach upon a recognized existing right?

And does Mr. T have the right to cut down all the trees on his property when doing so will adversely affect the surrounding community? And when his purchase agreement commits him to abide by the jurisdiction of local governing bodies on the matter?

Posted by: pickabone | May 23, 2005 11:53:25 AM

Posted by: miab

"In 1972 the Wisconsin Supreme Court ruled that an owner could be prevented from building on his property on the grounds that the public had rights to it in it's natural state. It goes without saying that this is theft."

Doesn't this depend entirely on what package of rights he bought? If he bought the land but left behind a right to public access in natural state, why would this be theft? This could come about by an express retention of that right by the seller, who then donated it to the state. It could also come about more organically, as the original understanding developed regarding what rights were on the list of rights that came to be called real property ownership rights during the period land was being doled out, or seized, or homesteaded, or whatever, in northern Wisconsin.

If, however the concept of public's right to land in a natural state was a new creation by this court in Wisconsin, then that really is a problem.

Posted by: miab | May 23, 2005 12:54:14 PM

Posted by: john t

D a Ridgely, You may check me out on this but if I remember correctly it was in Montgomery County,Va. I will try at some point to do a google search. However the point of such intrusion would be equally valid be it Maryland or Virginia much as I respect your memory and sometimes doubt mine. Pickabone,the capitalized Right of Public Access you refer to in the thread and original post does locate itself in Scandinavia,not the USA. I regard it as theft,as you do not,it being an infringement by force on the owner's right to perform a perfectly normal action,to build a home. Not knowing the lead up to the case i would daresay that construction would hardly be commenced if that construction was prohibited by law,why else buy the land unless to gaze at it. Your last para needs to be broken down in two parts; 1] I,if I so willed, would cut down every tree,and perhaps level the bushes,if I thought it would enhance my property. I would also consider the community,that being part of what I would eventually will. The community would affect and possibly temper my decision,it would not make my decision. 2] No Pickabone, I am not a lawbreaker,although in 40 years of driving I do have two traffic tickets. To move into a neighberhood with awareness of the requirements for being there is to accept,tacitly or otherwise those requirements. Miab, In part I hope I've addressed some of the issues you have raised, the Court did deny a "takings" provision in the situation mentioned,so it would seem no compensation was forthcoming. If organically that would seem to preclude a legal restriction on building,if homesteaded if anything that would encourage building. I would like to add that in 1987 for the first time in years the US Supreme Ct used the takings clause to negate a land use regulation. It concerned the California Coastal commission requiring a public right of way thru a beachfront property on which the owners planned to build. The courtdecided that the restriction had nothing to do with the building and was therefore a violation of "takings". Perhaps this has affected cases since then in both state and federal courts but I'd have to research it. Employment calls so I'll have to postpone discussion until later.

Posted by: john t | May 23, 2005 1:57:59 PM

Posted by: Achillea

oickabone and miab (especially) beat me to it. It doesn't go without saying at all.

Any property lawyers around please feel free to correct or clarify, but there are various rights which may or may not go to the owner or leaser of a given piece of property. Off the top of my head, there are mineral rights, oil rights, timber rights and I'm sure there are more. If you purchase a piece of property but not the mineral rights to it, then you're SOL on the diamond mine you find on the back forty. Ditto if you don't have oil rights and strike black gold when planting your new azalea. Whether 'construction rights' are generally included with the deed, I don't know, but there are matters like zoning and historical/ecological protection statutes to consider, as well.
If the Wisconsin landowner did his research and purchased the land with his development ducks in a row and then the judge forbade it anyway, yes, that would be theft. If not, well, caveat emptor.

Posted by: Achillea | May 23, 2005 2:06:27 PM

Posted by: D.A. Ridgely

Montgomery County is in Maryland, not Virginia. (Chevy Chase is in Montgomery County.)

Posted by: D.A. Ridgely | May 23, 2005 2:16:39 PM

Posted by: Stuart

Well, I wonder if the concept is one of freedom or one of property. The old law school saw is that property is a bundle of rights, and the issue is which sticks are essential to the bundle: how many can you take out while leaving the bundle still recognizable? Zoning, landmarking, building and fire codes all restrict the owner's ability to do with his property as he pleases, but havne't been viewed as altering the nature of the bundle of rights. (That's not an intuitively obvious result - the US Supreme Court had to decide that, in the Euclid case re zoning, and in the Grand Central case re landmark preservation, that these restrictions on the landowner's absolute control of his property were not fifth amendment "takings"). So the Scandinavian property concept is different from the Anglo-Saxon property concept.

I don't think it's an issue of freedom at all. In both cultures you have the right to go where you want as long as the landowner's property rights don't prohibit you from going there. The difference is in the definition of property rights.

Posted by: Stuart | May 23, 2005 2:34:18 PM

Posted by: pickabone

john t,

You assume too much in stating that I do not think it theft. I just think it doesn't go without saying. And yes, I understand that Scandinavian law does not have any force in Maryland. As the subject of this thread is mostly a question on the conflict between two forms of freedom, I was trying to address a specific question that arises with the introduction of the Right of Privacy as superceding the (theoretical, in MD) Right of Public Access. If a situation exists wherein the balance between the 2 freedoms is decided in favor of the Public Access type, is it within the rights of the land-owner to upset that decision by introducing through the construction of a home the superceding Right of Privacy?

As to your defensive posture regarding your (lack of) criminality, that one confused me for a moment. Then I realized you took "Mr T" as a reference to yourself. Not so. I was referring to the former Rocky III villain, A-Team star, mohawk-wearing former bouncer, Mr. T. He bought a property in Lake Forest, IL a bunch of years back and took a chainsaw to all the old-growth trees in order to antagonize his old-money Tom-and-Daisy-Buchanan-type neighbors.

Posted by: pickabone | May 23, 2005 2:44:03 PM

Posted by: miab

"If the Wisconsin landowner did his research and purchased the land with his development ducks in a row and then the judge forbade it anyway, yes, that would be theft. If not, well, caveat emptor."

Apparently, john t does not disagree in concept: "To move into a neighberhood with awareness of the requirements for being there is to accept,tacitly or otherwise those requirements." The question, then, is what to include in "the requirements for being there." By calling the court's action theft, he seems to be taking it as a given that refraining from the activities the court eventually prohibited was not one of those requirements. So the question becomes how to establish whether a pre-existing requirement exists?

In this particular case, the owner bought the land, a couple of years later a state law was passed regarding riverside and lakeside landfill, especially on land that is federally designated as wetlands, in order to protect water quality. He violated that law by filling some waterfront wetlands.

The court's reasoning seemed pretty confused to me, but generally seemed to take the view that rules preventing drastic changes to current uses aren't as bad as rules preventing things that are pretty much related to current uses, as well as the view that this regulation was designed to prevent a public harm -- waterway pollution -- rather than to affirmatively achieve a public good (which would trigger a takings compensation requirement).

All in all, pretty weak. The whole thing would have been much better approached as a pure environmental regulation case, and based on the harm his proposed changes would do to the river or lake. Similarly, if john t's eradication of vegetation on his land would cause large amounts of run-off into nearby streams or land, and if there is no way for him to prevent that runoff other than leaving trees in place, then I think it is legitimate to require him to leave those trees in place, as to do otherwise would of necessity lead to infringement by him of the property rights of his neighbors and downstream riparian rights holders. Since all land and water are eventually connected, it's hard to know where to draw the line on this sort of thing, but that doesn't mean we shouldn't try.

Posted by: miab | May 23, 2005 2:59:22 PM

Posted by: pickabone

Actually, as stated in my previous post, it wasn't john t's radical eradication of vegation, it was Mr. T (aka Clubber Lang). And his particular case had nothing to do with water runoff. Rather, the community wanted to preserve the sense of privacy and anonimity of their suburban retreats. To them, clearing the trees was the real estate equivalent of a flasher opening his raincoat. Water runoff is an easier question: your mud ends up on my lawn. But what about the value of my property gained from the aesthetic character of the neighborhood, which your actions are about to alter drastically, thereby reducing my property value? Is that a form of theft also?

Posted by: pickabone | May 23, 2005 5:26:23 PM

Posted by: Seamus

Actually, there *is* a Montgomery County, Virginia. It's where Virginia Tech is located.

Posted by: Seamus | May 23, 2005 5:53:41 PM

Posted by: miab

"But what about the value of my property gained from the aesthetic character of the neighborhood, which your actions are about to alter drastically, thereby reducing my property value? Is that a form of theft also?"

I think a property purist would say that if you want to lock in this value, pay Mr. T for a covenant not to cut his trees.

Posted by: miab | May 23, 2005 6:13:19 PM

Posted by: D.A. Ridgely

Virginia Tech? Sorry, never heard of it.

Posted by: D.A. Ridgely | May 23, 2005 7:07:19 PM

Posted by: john t

Pickabone,If I watched tv I might have realized your point on Mr T,yes I've heard of him but even saying that he was the farthest thing from my mind wouldn't cover it. Please be assured that my remarks about driving were meant to be droll humor,perhaps too droll. DA Ridgely,is it possible you made a mistake? I know the south a little better than MR T,in any case I think we agreethis was an exceptional intrusion into privacy and freedom and I notice my monitors sharp as they are,seriously,passed on that one. Stuart,thanks for the comments. If you scroll back to my 10:39 post you'll see we are in a similar position. Achillea, thankfully Miab appears to have answered your salient point. It is possible,and only possible, that given Miab's information a ex post facto situation arose here in addition to other considerations and my comments about about a buyer's awareness. Pickabone, I almost passed over your first para. Let me wrestle with it as best I can. As a general principle {of mine} I would prefer the right to privacy,and to be clearer,the right to property,over public access. Back to my 10:39 post. Note I said prefer,regarding it as I do one of the most important pillars of freedom. Absent a finding on a takings consideration It seems to me the owner got the short end of the stick. About a general attitude towards public access there are more aspects to it than I have time or expertise to discuss. As I mentioned the 1987 Supreme Ct case was the first takings case to reverse a land use regulation in about 50 yrs. You might well wonder what was going on in that time. And we haven't even touched upon Wildlife protection or endangered speicies acts and regs or for that matter the wetlands regulations,you don't have a puddle in your backyard do you? In closing I think a turnabout has occurred to some degree and I think as far as it goes,and it's an ongoing battle,it's a good thing.

Posted by: john t | May 23, 2005 11:11:03 PM

Posted by: D.A. Ridgely

John T, of course it's possible I made a mistake. (Alas, I do so frequently.) I didn't know, for example, there was a Montgomery Co. in Virginia. (The Va Tech comment was a lame joke, as my son will be attending Tech's rival, U.Va., this fall.) But I still think the smoking ban you recall was the one in Maryland.

Posted by: D.A. Ridgely | May 23, 2005 11:28:45 PM

Posted by: CTW

presumably, this, is the smoking ban in question. point to mr. ridgely.

Posted by: CTW | May 24, 2005 12:29:26 AM

Posted by: Jay

My dear Mr. Ridgely-

As a Hokie alumnus, I must agree that it was a VERY lame joke.


Posted by: Jay | May 24, 2005 1:08:14 AM

Posted by: leolabeth

The U.S., U.K. and other parts of Europe do have remants of the Justinian Doctrine, part of a system of law compiled by Roman Emperor Justinian in 528 AD that says, "By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea." (Don't know how that compares chronologically with the Scandinavian tradition.)

Its spirit and intent can be found in the Magna Carte as well as the early American notion of the Commons.

Oddly, topography played a role in making private beach compounds on Cape Cod possible. The leaders in all 13 colonies intended that because of the importance of fishing, beaches, in particular, would be public. In New England, however, the extreme expense of building wharves long enough to reach deep water at low tide caused public officials to cut deals with business interests, awarding property ownership of tidal flats and beaches in exchange for access to the water, leading to the spotty nature of public beaches here.

Posted by: leolabeth | May 24, 2005 7:00:22 AM

Posted by: leolabeth

Should have included this link to a good Orion article on the subject.

Posted by: leolabeth | May 24, 2005 7:07:10 AM

Posted by: Jacob T. Levy

The example is particularly interesting because it predates state institutions. The Right of Public Access is an institution, all right, but the state — in any meaningful sense of the word — is not its creator. The state eventually comes to protect it and to enshrine it in its laws, but its emergence is organic: it's a convention enforced by mutual understandings and local social pressures before the state emerges (or appears on the scene, as the case was in late medieval Finland).

All of which comes as no surprise to readers of Smith, who had a much better understanding of the contingency of the emergence of property rules (and their relationship to surrounding conditions) than did Locke.

Posted by: Jacob T. Levy | May 24, 2005 10:15:29 AM

Posted by: Mika L-M

I am heartened by the thoughtful discussion my first post generated, and appreciate the feedback, further info, and points of specification. I deliberately left out nuances in the interest of brevity, and I'm glad many have been added. Some I was well aware of, some not.

My purpose was to start some discussion on the topic; if I had a substantive controversial point, it was -- as many of you have noted above -- that in these issues, it "doesn't go without saying" what is theft, what rights are and what they entail. For example, restrictive covenants (statutory or contractual), laws of eminent domain, etc. may be a bad idea, but they are not self-evidently so: they require an argument -- or more likely arguments, as contexts and situations vary.

A couple of small comments (though I'll try not to have to do this in the future): Jussi Suikkanen is right in affirming that people in Scandinavia needn't worry about people having a right to lurk behind their windows. You could put it by saying that the right to privacy overrides the Right of Public Access. But if you explore any of the specifications of the Right in the three countries (linked in my post), you'll notice that the Right in fact doesn't include the right of access to people's yards and houses. And, sure, that can generate all sorts of interpretive difficulties on the ground, but it does less than one might think (see some of the FAQs in, alas, Swedish and Finnish). The bigger theoretical point is that privacy rights and the Right of Public Access needn't conflict in principle.

Finally, I'll need to work on my ironic tone: some people think Scandinavians are weird and that their welfare states intrusive; I wanted to take no position on that issue in this instance. (Maybe I will in the future.) I may well be weird, but I know not to generalize to others. Meanwhile, apologies to my fellow Finn Jussi.

Posted by: Mika L-M | May 24, 2005 10:23:46 AM

Posted by: john t

D A Ridgely, relax ,I was joking and as I tried to point out it's the case that counts not the location. Actually I said that twice. No disrespect intended,I admire your breadth of learning and dialectical skills and have done so from my first days on this site. Mike L-M, I'm willing to drop the "it goes without saying" theft remark and modify it to just plain theft. If you have a problem with the examples given there are a plenitude of others. And some are self evident,including and especially the regulatory extensions of law. I would like to take it that you are not one who regards gov't as being above blame or even immorality,as we all have our favorite examples. Regards,I did enjoy your post and you have made a fine and notable debut!

Posted by: john t | May 24, 2005 11:49:02 AM

Posted by: Achillea

john t: [i]Achillea, thankfully Miab appears to have answered your salient point. It is possible,and only possible, that given Miab's information a ex post facto situation arose here in addition to other considerations and my comments about about a buyer's awareness.[/i]

And answered it well, to my way of thinking. (For the record, it may well have been theft, my quibble was with the now-withdrawn 'goes without saying'). *salute to miab*

And a salute to Mike L-M. Welcome to the lists!

Posted by: Achillea | May 24, 2005 5:46:38 PM

Posted by: D.A. Ridgely

Another interesting perspective on the need to see property law as a flexible institution that must be adapted to sociological reality. No doubt, Western colonial imposition of territorial borders and European legal structures is responsible for much mischief, as well as much good, in the post-colonial era.

Posted by: D.A. Ridgely | May 26, 2005 2:52:06 PM

Posted by: Seamus

The article on Mongolia that Mr. Ridgely linked to reminds me that we went through this in our own country with the closing of the open range.

Posted by: Seamus | May 27, 2005 10:53:53 AM

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