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Re: [LandCafe] Birthright in Law

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  • Terence Bendixson
    What about looking at changes in the distribution of land in a sample of local authorities in England over the past 150 years? What I would expect to emerge
    Message 1 of 1 , Oct 29, 2004
      What about looking at changes in the distribution of land in a sample of
      local authorities in England over the past 150 years? What I would expect to
      emerge would be the shrinking ownership of 'landed families' as they sold
      off property to cover debts (or were affected by leasehold enfranchisement),
      rising municipal and other public ownership (council houses, hospitals,
      roads, armed forces etc.) and, through a shift from rented back-to-backs to
      suburban ownership, a steady increase in popular land ownership. It would
      then be interesting to extrapolate the revealed trends against a background
      of varying assumptions about incomes, housing densities and other factors.
      LVT could then be applied to those scenarios.

      Terence Bendixson, Secretary
      Independent Transport Commission
      University of Southampton
      c/o 39 Elm Park Gardens, London SW10 9QF
      Tel 020 7352 3885

      ----- Original Message -----
      From: <"From:Malcolm"@...>; <Ramsay@...>
      To: "'Land Café ( lc1) '" <LandCafe@yahoogroups.com>
      Sent: Friday, October 29, 2004 12:20 PM
      Subject: [LandCafe] Birthright in Law

      > -----Original Message-----
      > Sent: 27 October 2004 22:06
      > To: diggers350@yahoogroups.com
      > Subject: [diggers350] Birthright in Law
      > 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
      > 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
      > 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
      > the law in a different way than they currently do.
      > Persuading a small number of judges (for whom justice is a central
      > to be just, certainly looks to me like a less hopeless task than
      > 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
      > 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
      > 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
      > a general interpretation of the law (ignoring statute for now), is that,
      > the absence of a new and original argument, they will interpret the law in
      > way that is consistent with the way that it has been interpreted in the
      > - 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
      > 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
      > claim to that particular plot. So a major issue is: how do we make a
      > 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
      > how do we persuade a court that a birthright can outweigh an historic
      > 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
      > 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
      > consistency is that (factors outside the law permitting) any right which
      > 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
      > 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)
      > 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
      > 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
      > 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
      > knowing about it; setting foot on it outweighs just seeing it; setting
      > on it outweighs just walking on it; growing up on it outweighs just
      > 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)
      > fulfill their birthright, excluding them from claiming another plot. In a
      > few cases the person's birthright will manifest in the place where they
      > born or grew up; in other cases it will only be possible for it to
      > by their 'taking adverse possession' of some plot of land. But, in this
      > 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
      > 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
      > of whether the current interpretation of the law has been made rigid by
      > 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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