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Feudal abolition: the baby out with the bathwater? |
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Scotland's new system of landownership throws away the only good feature of feudalism: it secures private interests, but jeopardises the community's.
 The new legislation which replaces feudal land law in Scotland is constitutionally regressive, say some land reformers. The Title Conditions Act which, which comes into force next week "sets out a framework of rules for the imposition of conditions in the system of outright ownership of land". But the ’conditions' the new law speaks of are private contracts between individuals. The problem is that the concept of universal 'conditionality' - ownership contingent on the public interest - is nowhere to be seen.
Reformers argue that while radical change of the landownership system was long overdue, the new law introduces an alien US-style concept of 'outright' ownership.
The notion that the land of Scotland belongs ultimately to the people of Scotland is today a legal reality. But next week it will be a fiction - true only in the lyrics of songs, the hopes of dreamers - and the aspirations of progressive reformers.
The medieval feudal system which is being abolished set up a pyramid shaped structure of social relationships between God, the Crown, the aristocracy and the people. The presence and activities of the middle layers of this system brought the system in to disrepute. The conduct of the feudal landowning classes, over the years, ensured its ultimate demise.
But the system was by no means all bad. Vitally, it did mean that in Scotland there was a constitutional relationship between the individual titleholder to property and the community at large. That (feudal) legal relationship established the concept of the public interest over common resources at a constitutional level in Scotland. It recognized that the exercising of individual rights over land and natural resources was only possible within a framework of universal rights.
The new legislation abolishes much of this and replaces it with a new system of 'absolute' property rights. Feudalism was a wicked anachronism long-overdue for change. But reformers argue that the baby's being thrown out with the bathwater. Many in Scotland believe that the constitutional principle of 'conditionality' is now endangered.
An essential element of the next stage of the Scottish government's land reform programme must be a clear constitutional statement of the Scottish people's interest over its own land. This must be enacted in law which gives every Scot access to the means provided by their country, and which ensures that the value of Scotland's natural and common resources benefit all.
After all, it's been the undue exercise of private interest that made us realise we needed land reform in the first place. It's perverse that this new law effectively reinforces that. Its time to legislate in the interest of the whole community of the land of Scotland.
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