Andrew Lilico: Is it possible privately to own land?

In a previous piece, I discussed a little of the concept of property and its role in Conservatism.  The "property" I had in mind there was things like spears, money, shares, cars, factories, jewels.  Some readers may have wondered how land fitted in, for there was a traditional notion that no land could be held privately against the Crown (indeed, in some cultures, such as the Teutonic system in Europe and many New World cultures, matters went even further and land was held only in common).  This is of importance in relation to at least four issues:

a) public footpaths across land, and whether (and, if so, under what circumstances) landowners can forbid their use;

b) compulsory purchase of land;

c) whether those private citizens owning a particular area of land either individually or collectively can claim sovereignty over it (e.g. do the citizen of Cornwall own Cornwall?) - the doctine of "self-determination";

d) land taxes.

To see the special issues raised by land-as-property, let's consider a conceptually-related question: could a private citizen own a piece of air-space?  I don't mean: could that citizen own something that was in the airspace (say, a balloon or an airplane).  Neither do I mean: could a citizen own the gas (the air).  My question is: could the private citizen own the space?

According to the Lockean concept of property we explored previously, in which property is created by combining the common treasury with my labour, it would seem I cannot own airspace - for what labour of mind creates or improves it?  Airspace simply exists.  It isn't owned by anybody.  It is arguable that even the Crown merely controls or possesses airspace - it doesn't own it.

Let's explore the distinction between fundamental ownership and mere possession / control a little more.  Suppose that I were a blacksmith, and I purchased a piece of silver which I worked into a pendant on which I engraved: "To my beloved wife on our 10th wedding anniversary" and then presented to her.  Assuming the provenance of the silver is not at issue, the only plausible candidates for ownership of the pendant are myself and my wife.  Now suppose a thief comes into my house and steals the pendant and keeps it with his swag for three years (myself and my wife still being alive at that time) and then is in negotiation to sell the pendant to a jewellery store.  The thief clearly possesses the pendant.  He even controls it sufficiently to be able to trade it.  But is it truly his property?  No.  Possession and control and even trade of use do not convey property ownership.

Likewise, the question of the private ownership of land is not one of whether private persons can possess or control or even trade claims on the use of land.  The question is whether I can truly own land the way that I can truly own a spear.

I say: No.  But what I mean by that is quite narrow, as with the airspace.  You can own buildings - because buildings are created with labour and other non-land property.  You could own trees, if they were planted by humans.  You could own soil, if labour and non-land property have improved it (sufficiently) permanently.  (e.g. Some soils react chemically with inputs to create new soils such as the Amazonian "terra preta".)  But you cannot (normally?) own the space (the "land") in which the buildings and the soil sit because, as with the airspace, no property or labour has contributed to its creation.  (My "normally?" qualification here is a placeholder for debates one could perhaps have about land reclaimed from the sea (as in the Netherlands or East Anglia) or, say, created by blasting away rocks.  Let's ignore these interesting special cases for now.)

This may initially seem like a rather fine and irrelevant distinction.  One can own everything except the space in which it all sits?  So what?  Well, it matters rather a lot, particularly in four areas.

First, let's think about ancient footpaths.  Suppose a route through a wood has been created by centuries of walkers, and that a private "landowner" possesses the wood.  Can that landowner exclude the walkers?  I say typically not, because the centuries of walkers have, collectively, created the footpath - insofar as there is property here, it belongs collectively to them.  So unless the landowner has bought the footpath from the walkers collectively (assuming that were even conceptually possible) it doesn't belong to him - it belongs to them.  And since (I contend) no-one owns the space through which the footpath runs, the landowner cannot claim, on the basis of any property right, a right to exclude walkers from using the footpath.  They are walking on "their" footpath; they aren't walking on "his" land.

Second, compulsory purchase.  If anyone owns landspace and airspace, it must be the sovereign - who "improves" that space by protecting it with borders, armies, laws, police and courts.  That may not be sufficient to create ownership, but the private "landowner" can't claim even these things.  If the state seizes possession of land, it is not stealing from the landowner that which is his; it is merely removing that which is not his from his possession or (if the Crown is really the owner) it is withdrawing his license to use that which fundamentally belongs to the Crown.

Third, the doctrine of self-determination - the idea that those that live on a piece of land at a particular point in time have the collective right to claim that land for themselves.  It flows from what we have already said that this must be wrong.  The population are mere dwellers.  They do not own the land any more than would nomads who happened to have pitched their tents there for the night.  They can own the buildings they live in.  They do not own the land those buildings rest upon.

Fourth, land taxes.  In a previous piece, I argued against wealth taxes.  But the reasoning of this post suggests that land taxes are not wealth taxes, for land cannot be part of a private citizen's property.  The land is owned (if by anyone) by the Crown.  So the Crown might legitimately charge a fee for its use.  I do not think such a charge should even be described as a "tax".  It is more like a usage fee.

Overall then, in this essay I have argued that private citizens cannot own land, and that, if correct, this is important to four interesting contemporary political issues.